Lee v. Bradley (Incident No. 3433418)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL A. LEE, :

Petitioner :

: No. 1:21-cv-1502

v. :

: (Judge Rambo)

E. BRADLEY, :

Respondent :

MEMORANDUM

On August 31, 2021, pro se Petitioner Michael A. Lee (“Petitioner”), who is

currently incarcerated at the United States Penitentiary Canaan (“USP Canaan”) in

Waymart, Pennsylvania, initiated the above-captioned action by filing a petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging an incident report

he received while incarcerated at USP Allenwood in White Deer, Pennsylvania.

(Doc. No. 1.) Petitioner paid the requisite filing fee on September 21, 2021. (Doc.

No. 6.) In an Order entered September 22, 2021, the Court directed Respondent to

show cause why Petitioner should not receive the relief he seeks. (Doc. No. 7.)

Respondent filed his response on October 12, 2021. (Doc. No. 9.) Petitioner filed

his traverse on October 29, 2021. (Doc. No. 10.) Petitioner’s § 2241 petition is,

therefore, ripe for disposition.

I. BACKGROUND

On March 20, 2022, the United States District Court for the Eastern District

of North Carolina sentenced Petitioner to serve 360 months’ incarceration for

conspiracy to distribute cocaine and a consecutive term of sixty (60) months’ for

carrying a firearm during a drug trafficking offense. (Doc. No. 9-1 at 7-8.)

Subsequently, the court reduced Petitioner’s sentence on the conspiracy conviction

to 202 months’ incarceration. (Id. at 7.) Petitioner, therefore, is serving an aggregate

sentence of 262 months’ incarceration. His anticipated release date, with good

conduct time (“GCT”) factored in, is April 5, 2022. (Id. at 6.)

A. Facts Regarding Incident Report #3433418

On September 15, 2020, at approximately 6:30 p.m., the duress alarm in

Petitioner’s cell was activated. (Id. at 11.) When staff arrived at the cell, they

observed that Petitioner “had a sheet tied around his neck and attempted to tie it to

the air vent above the sink.” (Id.) Petitioner was ordered to remove the sheet from

his neck and ignored the order. (Id.) Petitioner continued to tie the sheet to the air

vent. (Id.) Petitioner was given another order to cease his actions, and he ultimately

submitted to hand restraints. (Id.) Petitioner was removed from his cell and escorted

to Health Services. (Id.) Officer Skutnick issued Incident Report #3433418,

charging Petitioner with a violation of Code 307, refusing to obey an order, and Code

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228, tattooing or self-mutilation. (Id.) Petitioner received a copy of the Incident

Report on September 21, 2021, outside of the twenty-four (24) hour window,

because he had been placed on suicide watch. (Id. at 11, 13.) At that time, Petitioner

was advised of his rights and stated: “I submitted to restraints to Officer Taylor. This

is a lie.” (Id. at 13.)

The Incident Report was forwarded to the Unit Discipline Committee

(“UDC”) for further action. (Id. at 12.) Petitioner appeared before the UDC on

September 22, 2020 and provided a written statement. (Id.) The UDC advised

Petitioner of his rights. (Id.) At that time, Petitioner requested that Dr. Williams

serve as his staff representative and that inmate Gregory Clark appear as a witness

to attest that he never tied the sheet to the air vent. (Id. at 15.) The UDC referred

the Incident Report to a Disciplinary Hearing Officer (“DHO”) for further

proceedings. (Id. at 12.)

Petitioner appeared before the DHO on October 20, 2020. (Id. at 19.) The

DHO confirmed that Petitioner understood his rights. (Id.) Although Petitioner had

requested Dr. Williams as his representative, Dr. Williams was not available and so

Dr. Greene appeared as Petitioner’s staff representative instead. (Id.) Dr. Greene

met with Petitioner prior to the DHO hearing. (Id.) Petitioner stated, “I did not do

anything to myself” and also provided a written statement. (Id.) Inmate Gregory

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Clark refused to appear at the hearing but provided the following statement to Dr.

Greene: “He cuffed up when the C.O. asked him and there was no problems at all.”

(Id. at 20.)

The DHO found Petitioner guilty of Code 228A, tattooing or self-mutilating,

after considering Petitioner’s statements, inmate Clark’s statement, the Incident

Report, and Petitioner’s mental health investigation. (Id. at 20-21.) The DHO

sanctioned Petitioner with disallowance of twenty-seven (27) days’ GCT and loss of

commissary and visitation privileges for three (3) months. (Id. at 21.) Petitioner

received a copy of the DHO report on October 20, 2020. (Id.)

B. Summary of Petitioner’s § 2241 Petition

Petitioner then filed the instant § 2241 petition. (Doc. No. 1.) In his petition,

Petitioner argues that his due process rights were violated because the DHO denied

him a material witness, changed the offense, and did not consider all evidence. (Id.

at 6.) According to Petitioner, the DHO refused to call inmate Clark as a witness.

(Doc. No. 4 at 1.) Petitioner also avers that the time of the offense as stated in the

Incident Report is wrong. (Id. at 2.) Moreover, Petitioner alleges that his staff

representative, Dr. Greene, did not fulfill his duties because Petitioner gave a request

“to get specific information, and do certain things,” and those actions weren’t taken.

(Id.) Petitioner also appears to suggest that when the BOP calculated and applied

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his GCT losses, they improperly applied such losses to his sentence that was already

completed. (Doc. No. 1 at 6.) As relief, Petitioner requests that the Court order the

BOP to expunge the Incident Report, restore his GCT, and direct the BOP to

recalculate his sentence. (Id. at 7.)

II. DISCUSSION

A. Due Process Challenges to Incident Report #3433418

Liberty interests protected by the Fifth Amendment may arise either from the

Due Process Clause itself or from statutory law. Torres v. Fauver, 292 F.3d 141 (3d

Cir. 2002). It is well settled that “prison disciplinary proceedings are not part of a

criminal prosecution and the full panoply of rights due a defendant in such

proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

Nevertheless, the Supreme Court has held that that there can be a liberty interest at

stake in disciplinary proceedings in which an inmate loses good conduct time. Id.

at 557. Because Petitioner’s sanctions included the loss of good conduct time, he

has identified a liberty interest.

In Wolff, the Supreme Court set forth the following minimum procedural due

process rights to be afforded to a prisoner accused of misconduct in prison which

may result in the loss of good time credit: (1) the right to appear before an impartial

decision-making body; (2) twenty-four hour advance written notice of the

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disciplinary charges; (3) an opportunity to call witnesses and present documentary

evidence in his defense when it is consistent with institutional safety and correctional

goals; (4) assistance from an inmate representative if the charged inmate is illiterate

or complex issues are involved; and (5) a written decision by the fact finder of the

evidence relied upon and the rationale behind the disciplinary action. Wolff, 418

U.S. at 563-67. The Supreme Court has held that the standard of review about the

sufficiency of the evidence is whether there is “any evidence in the record that could

support the conclusion reached by the disciplinary board.” Superintendent v. Hill,

472 U.S. 445, 455-56 (1985); see also Griffin v. Spratt, 969 F.2d 16, 19 (3d Cir.

1992). If there is “some evidence” to support the decision of the hearing examiner,

the court must reject any evidentiary challenges by the plaintiff. Hill, 472 U.S. at

457. The Hill standard is minimal and does not require examination of the entire

record, an independent analysis of the credibility of the witnesses, or even a

weighing of the evidence. See Thompson v. Owens, 899 F.2d 500, 501-502 (3d Cir.

1989).

The BOP’s inmate disciplinary procedures are codified at 28 C.F.R. § 541, et

seq., and entitled Inmate Discipline and Special Housing Units. These procedures

are intended to meet or exceed the due process requirements prescribed by the

Supreme Court. See Von Kahl v. Brennan, 855 F. Supp. 1413, 1418 (M.D. Pa. 1994).

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Pursuant to these regulations, staff shall prepare an Incident Report when there is

reasonable belief that a violation of BOP regulations has been committed by an

inmate and the staff considers informal resolution of the incident inappropriate or

unsuccessful. 28 C.F.R. § 541.5. Under the regulations, an inmate “ordinarily

receives[s] the incident report within 24 hours of staff becoming aware of . . .

involvement in the incident.” Id. § 541.5(a) (emphasis added). The incident is then

referred to the UDC for an initial review pursuant to § 541.7.

The UDC review/hearing is “ordinarily [held] within five work days after [the

incident report] is issued” and does not include the initial day staff learns of the

incident, weekends or holidays. Id. § 541.7(c). If the UDC finds that a prisoner has

committed a prohibited act, it may impose any of the available sanctions set forth in

28 C.F.R. § 541.3 (Tables 1 and 2) except loss of good conduct time, disciplinary

segregation, or monetary fine. Id. If the alleged violation is serious and warrants

consideration for more than minor sanctions, or involves a prohibited act listed in

the greatest severity category, the UDC must refer the matter to a DHO for a hearing.

Id.

A DHO “will only conduct a hearing on the incident report if referred by the

UDC.” 28 C.F.R. § 541.8. An inmate will receive written notice of the charges 24

hours before the DHO hearing unless the inmate waives the notice requirement in

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which case the DHO can conduct the hearing sooner. Id. The inmate is permitted

to have a staff representative at the hearing and entitled to make a statement and

present documentary evidence. Id. After the hearing, the DHO will either: (1) find

the inmate committed the prohibited act or similar one described in the incident

report; (2) find the inmate did not commit the prohibited act charged; or (3) refer the

incident report back for further investigation, review and disposition. Id. If an

inmate is found to have committed a prohibited act, the DHO can impose any of the

available sanctions listed in Table 1 and 2 of § 541.3. Id. Finally, the written report

or decision of the DHO will contain the following: (1) whether the inmate was

advised of his or her rights during the proceedings; (2) the evidence relied on by the

DHO; (3) the DHO’s finding of guilt or innocence; (4) the sanctions imposed; and

(5) the reasons for the sanctions imposed. Id.

1. Petitioner Received His Due Process Rights

The record reflects that Petitioner received his procedural due process rights

under Wolff and the BOP regulations. Petitioner received a copy of the Incident

Report on September 21, 2020. (Doc. No. 9-1 at 11.) While this was six (6) days

after the incident, the Incident Report was delivered outside the twenty-four (24)

hour window due to Petitioner being placed on suicide watch. (Id. at 13.) Petitioner

fails to show any prejudice that resulted from this delay. See Bullard v. Scism, 449

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F. App’x 232, 235 (3d Cir. 2011). Petitioner appeared before the DHO on October

20, 2020. (Doc. No. 9-1 at 19.) Petitioner received a copy of the DHO’s written

decision, which included a review of the evidence relied upon and the rationale

behind the disciplinary action, on October 20, 2020. (Id. at 21.)

Dr. Greene appeared at the hearing as Petitioner’s staff representative. (Doc.

No. 9-1 at 19.) Petitioner avers that his due process rights were violated because Dr.

Greene did not fulfill the duties of a staff representative. (Doc. No. 4 at 2.) He

suggests that Dr. Greene did not review video footage and interview inmate Clark.

(Doc. No. 1-4 at 1.) However, the record before the Court indicates that Dr. Greene

did review the video and spoke to inmate Clark, “who did not provide any

information conflicting what the incident report stated.” (Id.) Moreover, inmate

Clark’s declaration indicates that he was questioned by Dr. Greene. (Doc. No. 1-3

at 2.) The DHO report also notes that Dr. Greene met with Petitioner prior to the

hearing to discuss the matter with him. (Doc. No. 9-1 at 19.) From this evidence,

the Court “cannot say that the staff representative failed to perform [his or her]

function.” Rodriguez v. Ebbert, No. 3:15-cv-1952, 2016 WL 6095621, at *6 (M.D.

Pa. Oct. 19, 2016); see also Campbell v. Warden Allenwood USP, 808 F. App’x 70,

73 (3d Cir. 2020) (rejecting inmate-petitioner’s argument that his due process rights

were violated because his staff representative was not prepared).

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Petitioner also requested that inmate Clark appear at the hearing as a witness

on his behalf. He asserts that his due process rights were violated because the DHO

never called inmate Clark to appear. (Doc. No. 4 at 1-2.) According to Petitioner,

the DHO intentionally did not call inmate Clark “to keep staff misconduct issues off

the record.” (Doc. No. 1-5 at 5.) He also asserts that BOP policy states that a witness

cannot refuse to give a statement. (Id.) Petitioner provides the relevant portion of

BOP Program Statement 5270.09, Inmate Discipline Program, with his traverse.

(Doc. No. 10-2.)

Program Statement 5270.09 provides that an “inmate witness can be required

to attend, and failure to cooperate with the DHO can result in disciplinary action.”

(Id.) However, the “statement of an inmate requesting a witness is not enough to

man date the witness’s appearance. There must be an indication that the witness has

information directly relevant to the charges.” (Id.) A prisoner may request that

witnesses appear, but the DHO may refuse to call requested witnesses if they are not

reasonably available, if their presence would jeopardize institutional security, or if

they would present repetitive evidence. See 28 C.F.R. § 541.8(f). Inmates, however,

do not have an “unqualified right to call witnesses.” Wolff, 418 U.S. at 566.

Although not necessary, it is “useful for the [DHO] to state its reason for refusing to

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call a witness, whether it be for irrelevance, lack of necessity, or the hazards

presented in individual cases.” Id.

Here, the DHO noted that inmate Clark refused to appear at the hearing but

that Dr. Greene obtained the following statement, “he cuffed up when the C.O asked

him and there was no problems at all.” (Doc. No. 9-1 at 20.) Petitioner and inmate

Clark now state that the DHO never asked inmate Clark to appear. (Doc. No. 1-3 at

2; Doc. No. 1-5 at 5.) Moreover, in his traverse, Petitioner avers that he received an

amended DHO report on September 10, 2021, which stated instead that inmate Clark

“could not appear due to inmate movement restrictions related to COVID-19.” (Doc.

No. 10-2 at 2, 4.) Petitioner avers that the BOP amended the report after he

submitted inmate Clark’s declaration to the BOP’s General Counsel during his

appeal of his administrative remedy, and that the BOP “tried to clean up the due

process violation with a slick lie.” (Doc. No. 10 at 2.) Nevertheless, the record

reflects that inmate Clark provided a statement to Dr. Greene, and that such

statement was presented during the DHO hearing. Given this, the Court does not

conclude that inmate Clark’s failure to appear at the hearing violated Petitioner’s

due process rights. See Kenney v. Lewisburg, 640 F. App’x 136, 139 (3d Cir. 2016)

(concluding that inmate-petitioner’s due process rights were not violated when a

requested witness’s statement was read during the DHO hearing).

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Petitioner also alleges that his due process rights were violated because the

Incident Report did not reflect the correct time of the offense. (Doc. No. 4 at 2.)

Petitioner, however, has provided no evidence suggesting that the incident occurred

at a time different than that alleged, and, in any event, even if the time was incorrect,

Petitioner has demonstrated no prejudice from this typographical error.

Petitioner also alleges that the DHO violated his due process rights by

changing the charged offense to a Code 22A. (Doc. No. 1 at 6.) However, the fact

that the Incident Report did not charge Petitioner with a violation of Code 228A is

of no consequence. “[P]ursuant to 28 C.F.R. § 541.8(a)(1), a DHO has the authority

to find that an inmate ‘committed the prohibited act(s) charged, and/or a similar

prohibited act(s) as described in the incident report.” Guerrero v. Recktenwald, 542

F. App’x 161, 164 (3d Cir. 2013). In the instant case, Incident Report #3433418

charged Petitioner with a violation of Code 228 and detailed how Petitioner had a

sheet wrapped around his neck. (Doc. No. 9-1 at 11.) The DHO considered these

facts and, therefore, “acted within his authority to conclude that [Petitioner]

committed a similar . . . offense t[o] the offense with which he was charged[,] and

[Petitioner] received adequate notice of the proceedings against him.” Guerrero,

542 F. App’x at 164. Thus, the Court finds that Petitioner received all the procedural

due process procedures to which he was entitled.

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2. The DHO Decision Was Based on Sufficient Evidence

With respect to the sufficiency of the evidence, Respondent has included the

Incident Report, the DHO report, Petitioner’s written statement, and his Psychology

Services Institution Disciplinary Process Report. (Doc. No. 9-1.) These documents

unequivocally establish that there was some evidence supporting the DHO’s

decision.

The DHO stated the following in his decision finding Petitioner guilty of Code

228A:

On September 15, 2020 at approximately 6:30 PM [Petitioner] who is

housed in Unit 1A cell 114 pressed his duress alarm. Upon arrival to

the cell, [Petitioner] had a sheet tied around his neck and attempted to

tie it to the air vent above the sink. [Petitioner] was ordered to remove

the sheet from his neck to which he ignored my commands. He then

continued to tie the sheet to the air vent. [Petitioner] was given another

direct order to cease his actions and submit to hand restraints to which

he then complied. [Petitioner] was then removed from the housing until

and escorted to Health Services.

The DHO believed the information provided by the staff member

involved in this case, as they derived no known benefit by providing

false information. The DHO finds the charge to be supported in this

case based upon the greater weight of evidence cited in this report.

Upon questioning by the DHO, [Petitioner] denied the charge. He

elaborated upon his plea by stating, I did not do anything to myself.

After the consideration of evidence documented above, the DHO has

drawn the conclusion the greater weight of the evidence, listed in the

paragraphs above, supports the finding [Petitioner] committed the

prohibited act(s) of Tattooing or Self-Mutilation, Code(s) 228A, on 09-

15-2020, at or about 18:20, in Unit 1A, at USP Allenwood.

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(Doc. No. 9-1 at 20-21.) Moreover, the DHO explained the imposed sanctions,

stating:

[Petitioner’s] plan and/or attempt to do bodily harm to himself by

hanging/cutting on his body will not be tolerated. This behavior

interferes with the orderly running of the facility and endangers not only

the inmate involved, but potentially staff responding to incidents.

(Id. at 21.)

Petitioner suggests that because inmate Clark did not appear at the hearing,

there was not sufficient evidence to support the charge because inmate Clark’s

statement would have exonerated him. (Doc. No. 4 at 2.) Petitioner has attached a

declaration from inmate Clark to his § 2241 petition. (Doc. No. 1-3.) In that

declaration, inmate Clark states that Petitioner had a sheet wrapped loosely around

his neck and was acting as if he was going to tie it to the air vent. (Id. at 1.) Inmate

Clark states that Petitioner never attempted to harm himself. (Id.) However, he also

avers that Petitioner stated that he was going to harm himself. (Id.)

When an inmate challenges the sufficiency of the evidence supporting the

DHO’s decision, “the ‘some evidence’ standard does not require . . . independent

assessment of the credibility of witnesses or weighing of the evidence.” Speight v.

Minor, 245 F. App’x 213, 216 (3d Cir. 2007) (quoting Hill, 472 U.S. at 455-56).

Even if inmate Clark had appeared and given testimony similar to that which is

contained within his declaration, such testimony does not substantially conflict with

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the Incident Report. Thus, contrary to Petitioner’s suggestion, “some evidence”

supports the DHO’s conclusion that he was guilty of violating Code 228A. See

Denny v. Schultz, 708 F.3d 140, 145 (3d Cir. 2013) (noting that a court “need only

find that the [Hearing Officer’s] decision had ‘some basis in fact’ in order to affirm

the decision as comporting with the Due Process Clause”).

Petitioner also suggests that Officer Skutnick issued the Incident Report in

retaliation for an incident that occurred two (2) days before, when he allegedly

denied Petitioner his religious diet and Petitioner filed a complaint against him.

(Doc. No. 1-5 at 5.) This claim is properly raised in Petitioner’s § 2241 petition

because it relates to the loss of his GCT, which affects the duration of his sentence.

See Queen v. Miner, 530 F.3d 253, 255 n.2 (3d Cir. 2008). However, the Court’s

determination that some evidence supports the DHO’s decision negates Petitioner’s

retaliation claim. See McGee v. Scism, 463 F. App’x 61, 64 (3d Cir. 2012)

(concluding that if a prison disciplinary committee’s finding of a violation of prison

rules is based on some evidence, that “finding essentially checkmates [a] retaliation

claim” (quoting Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994))); Lasko v.

Holt, 334 F. App’x 474, 477 (3d Cir. 2009) (concluding that the inmate-petitioner’s

retaliation claim must fail because sufficient evidence supported the DHO’s

determination).

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B. Claim Regarding Sentence Calculation

As noted supra, Petitioner also appears to suggest that when the BOP

calculated and applied his GCT losses, they improperly applied such losses to his

sentence that was already completed. (Doc. No. 1 at 6-7.) Petitioner suggests that

the GCT must be disallowed on his consecutive sentence for the firearms charge

because it is his only active sentence, thus limiting the amount of GCT available for

disallowance. (Id.) This argument is identical to one previously raised by Petitioner

and rejected by the Court. See Lee v. Quay, No. 1:21-cv-952, 2021 WL 4078047, at

*3 (M.D. Pa. Sept. 8, 2021). The Court again discerns no error with respect to the

BOP’s calculation of Petitioner’s sentence, and Petitioner is not entitled to habeas

relief with respect to this claim.

III. CONCLUSION

For the foregoing reasons, the Court concludes that Petitioner was accorded

all of his due process rights under Wolff and that there was some evidence supporting

the decisions made by the DHO. Moreover, the BOP appropriately calculated

Petitioner’s sentence. Accordingly, Petitioner’s § 2241 petition (Doc. No. 1) will be

denied. An appropriate Order follows.

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