The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL S. OWL FEATHER-GORBEY, : Civil No. 3:20-cv-1150
Petitioner . (Judge Mariani)
v .
WARDEN, USP-LEWISBURG, :
Respondent .
MEMORANDUM
Presently pending before the Court is a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 (Doc. 1), filed by Petitioner Michael S. Owl Feather-Gorbey (“Gorbey’), an
inmate confined at the Federal Correctional Institution, Beckley, West Virginia. Gorbey
contends that his due process rights were violated in the context of a disciplinary hearing
held at the Federal Correctional Institution, Cumberland, Maryland. (/d.). For the reasons
set forth below, the Court will deny the petition.
l. Background
On August 5, 2019, Gorbey was charged in incident report number 3287668 with
fighting with another person, a code 201 violation. (Doc. 1, p. 2; Doc. 13-1, p. 5). Gorbey
alleges he was engaging in self-defense and was innocent of the charge, the reporting
officer was improperly also the investigating lieutenant, he was disallowed too many good
conduct days, and the Bureau of Prisons (“BOP”) is not permitted to disallow good conduct
time because he is a D.C. inmate. (Doc. 1). For relief, Gorbey requests, inter alia, that the
Court expunge the incident report and restore the loss of good conduct time. (/d. at p. 8).
ll. Discussion
On July 31, 2019, Gorbey was involved in a physical altercation with another inmate.
(Doc. 13-1, p. 1, Incident Report). On August 5, 2019, incident report 3287668 was served
on Gorbey charging him with fighting with another person. (/d.). As part of the
investigation, Gorbey stated: “I was defending myself in my cell.” (/d. at p. 6, § 24).
On August 6, 2019, Gorbey appeared before the Unit Discipline Committee (“UDC’).
(Id. at p. 7, §§ 17-21). Due to the severity of the offense, the UDC referred the charge to
the Discipline Hearing Officer (“DHO”) with a recommendation that appropriate sanctions be
imposed. (/d. at p. 7, §§ 18-20).
On August 6, 2019, a staff member informed Gorbey of his rights at the DHO hearing
and provided him with a copy of the “Inmate Rights at Discipline Hearing” form. (Doc. 13-1,
p. 9, Inmate Rights at Discipline Hearing). Gorbey was also provided with a “Notice of
Discipline Hearing before the Discipline Hearing Officer (DHO)” form. (Doc. 13-1, p. 8,
Notice of Discipline Hearing before the DHO). Gorbey signed both forms, he requested
representation by a staff member, and elected to call witnesses on his behalf. (/d.).
On August 23, 2019, 4 HO hearing was conducted. (Doc. 13-1, pp. 11-16, DHO
Report). During the August 23, 2019 hearing, the DHO confirmed that Gorbey received
advanced written notice of the charges, that he had been advised of his rights before the
DHO, and that Gorbey requested staff representation and requested to call witnesses. (/d.
at pp. 11-12, §§ I-Ill). Gorbey indicated that he understood his rights. (/d. at p. 13 § V).
The DHO read following written statement of the reporting officer:
On August 5, 2019, at 9:00 AM, SIS completed an investigation involving a
possible physical altercation between inmate Childers, Anthony #17603-032
and inmate Gorbey, Michael #33405-013. This investigation revealed the
following information.
Inmate Childers was medically assessed on August 1, 2019, at 7:25 AM,
which revealed redness to his left cheek and a small contusion noted to his
bottom left lip.
A review of staff provided memos determined inmate Childers admitted to
being involved in a physical altercation with inmate Gorbey when questioned
by staff and was noted to have injuries consistent with being involved in a
physical altercation.
An SIS interview was conducted with inmate Gorbey on August 1, 2019.
During this interview Gorbey made the following statement.
“JR (Childers) threw his hands up in the air and started yelling that | am not
going to tell him what to do or when to do it. | thought he was coming at me
aggressively when he threw his hands in the air and starting yelling so | kind
of pushed him in the face trying to get him away from me. Then he started
coming at me wildly swinging his fists toward me. That is when | grabbed him
and held him on the bed. | asked my cellie (Manuel, Curtis #16446-408) to
open the door so | could get out of the cell and he just stood there. So |
pushed myself off of JR and ran out of the cell. He was still trying to hit me
when | left the cell.”
A review of VICON video footage was conducted August 2, 2019, which
revealed the following information.
21:26:31 Gorbey who is standing in front of cell 204 can be seen putting on
white gloves as he is looking in the direction of Manuel and Childers.
21:30:20 Manuel and Childers exit cell 216 and begin walking toward cell 204.
21:30:53 Gorbey meets Manuel and Childers at cell 204 and all three inmates
enter the cell with Gorbey entering last and closing the door behind him.
21:32:38 The door to cell 204 opens violently and Gorbey runs out of cell 204
with Childers behind him. As Gorbey exits the cell[,] Childers can be seen
throwing a right handed punch to the back area of Gorbey.
21:32:52 Gorbey has a conversation with Manuel and Childers who are
standing in the doorway of cell 204 then begins walking away from cell 204,
down the stairs, taking off his gloves and eventually sitting in the common
area of the housing unit.
It was determined through inmate statements, inmate medical assessments
and VICON video review(,] inmate Gorbey was involved in a physical
altercation with inmate Childers on July 31, 2019, at 9:32 p.m., in cell 204 of
housing unit CB.
(Id. at pp. 13-14, § V). Gorbey stated that the incident report was not true. (/d.). However,
the DHO found the conclusion of the investigation to be more credible than Gorbey’s
explanation and statement that the report was not true. (/d. at p. 15, § V). The DHO
specifically found that Gorbey did not provide any credible evidence that the report was
fabricated. (Id.). The DHO concluded that the evidence suggested that a hostile physical
altercation occurred between Gorbey and inmate Childers. (/d.).
In reaching his decision, the DHO considered the reporting officer's incident report,
Gorbey’s handwritten statement, the video footage—particularly the footage of Gorbey
putting on gloves just before entering the cell—which the DHO believed was to minimize
any wounds to his hands, the report of the investigating officer, Gorbey’s contention that the
report was not true, the witness statements—who had no firsthand knowledge of the
incident, the statement from the staff representative—‘“Everything that was reviewed was
consistent with what was reported”, staff memoranda, clinical encounters of Gorbey and
inmate Childers, and photographs. (/d.at pp. 15-16, § V). After consideration of the
evidence, the DHO found that the greater weight of the evidence supported a finding that
Gorbey committed the prohibited act of fighting with another person, a code 201 violation.
(Id. at p. 16, § V). The DHO sanctioned Gorbey with 27 days loss of good conduct time, 10
days of disciplinary segregation, and loss of commissary and email privileges for 120 days.
(/d. at p. 16, § VI). At the conclusion of the hearing, the DHO provided a copy of the report
to Gorbey and advised him of his appeal rights. (/d. at p. 16, § VIll).
Gorbey’s sanctions included the loss of good conduct time; therefore, he has
identified a liberty interest in this matter. 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 found that there can be a liberty interest at stake in disciplinary
proceedings in which an inmate loses good conduct time. Id.
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 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 with
regard to 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 Bureau of Prisons’ 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). 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. The
incident is then referred to the UDC for an initial hearing pursuant to § 541.7. The UDC “will
ordinarily review the incident report within five work days after it is issued, not counting the
day it was issued, weekends, and holidays.” 28 C.F.R. § 541.7(c). This period may be
extended if the incident is being investigated for possible criminal prosecution. 28 C.F.R. §
541.4(c). If the UDC finds that a prisoner has committed a prohibited act, it may impose
minor sanctions. 28 C.F.R. § 541.7(f). 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 disciplinary hearing officer for
ahearing. 28 C.F.R. § 541.7(a), (g). The inmate will receive written notice of the charge(s)
against him at least twenty-four hours before the DHO’s hearing, however the inmate may
waive this requirement. 28 C.F.R. § 541.8(c). The inmate is entitled to have a staff
representative, appear at the hearing, make a statement, present documentary evidence,
and present witnesses. 28 C.F.R. §§ 541.8(d), (e), (f}. Following the hearing, the inmate
will receive a written copy of the DHO’s decision. 28 C.F.R. § 541.8(h).
In the instant case, it is clear that Gorbey was afforded all of the required procedural
rights set forth in Wolff. He received advanced written notice of the charge and incident
report on August 5, 2019. Gorbey appeared before the UDC and was alloweci to provide a
statemesnt on his own behalf. He was properly informed of his rights before the DRO
hearing, as well as given the opportunity to make a statement, present documentary
evidence, have a staff representative, and to present witnesses and question the witnesses.
At the conclusion of the hearing, Gorbey received a written decision setting forth the
evidence relied upon by the DHO and the rationale behind the decision. Gorbey was also
notified of his right to appeal.
Gorbey asserts that the incident report runs afoul of BOP Program Statement
5270.09, § 541.5(b)' because the investigating officer also wrote the incident report.
Specifically, the regulations provide that the officer who investigates the incident may not be
the employee who reported the incident or otherwise be involved in the incident. /d. The
record clearly indicates that the incident was investigated by Lieutenant Hagelin and the
incident report was authored by Lieutenant Deurr. (Doc. 13-1, pp. 5-6).
Since Gorbey was afforded all of his procedural rights, the only remaining issue is
whether there was “some evidence” to support the decision by the DHO. The record clearly
reveals the existence of evidence to allow the DHO to conclude that Gorbey was guilty of
the charge. The DHO determined that the greater weight of the evidence supported the
finding that Gorbey violated code 201. In reaching his decision, the DHO considered the
reporting officer's incident report, Gorbey’s handwritten statement, the video footage, the
report of the investigating officer, Gorbey’s claim that the report was not true, the witness
' The regulations governing the BOP’s Inmate Discipline Program are found at Program
2021), 5270.09, available at □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ (last visited September
statements, the statement of the staff representative, staff memoranda, clinical encounters,
and photographs. Based upon this evidence as relied upon by the DHO, the Court finds
that Gorbey’s due process rights were not violated by the determination of the DHO.
Finally, the Court finds that all sanctions imposed by the DHO were within the limits
of 28 C.F.R. § 541, et seg. Gorbey was found guilty of a 200-level, high severity prohibited
act. Pursuant to 28 C.F.R. § 541.3, the following are the sanctions available for 200-level
prohibited acts:
A. Recommend parole date rescission or retardation.
B. Forfeit and/or withhold earned statutory good time or non-vested good
conduct time up to 50% or up to 60 days, whichever is less, and/or
terminate or disallow extra good time (an extra good time or good
conduct time sanction may not be suspended).
Disallow ordinarily between 25% and 50% (14-27 days) of good
conduct time credit available for year (a good conduct time sanction
may not be suspended).
C. Disciplinary segregation (up to 6 months).
D. | Make monetary restitution.
E. Monetary fine.
F. Loss of privileges (e.g., visiting, telephone, commissary, movies,
recreation).
G. Change housing (quarters).
H. | Remove from program and/or group activity.
I. Loss of job.
J. Impound inmate’s personal property.
K. Confiscate contraband.
L. Restrict to quarters.
M. — Extra duty.
28 C.F.R. § 541.3 (Table 1).
Thus, the sanctions imposed by the DHO in this instance were consistent with the
severity level of the prohibited act and within the maximum available to the DHO.
Further, “[t]he Eighth Amendment is violated only when a punishment is grossly
disproportionate to the severity of the offense.” Levi v. Holt, 192 F. App’x 158, 162 (3d Cir.
2006) (citing Rummel v. Estelle, 445 U.S. 263, 271-74 (1980)). Therefore, only sanctions
that “impose [ ] atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life,” may be deemed excessive. Moles v. Holt, 221 F. App’x 92, 95 (3d
Cir. 2007) (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). The penalties imposed here,
loss of good conduct time, disciplinary segregation, and loss of privileges, do not work an
“atypical and significant hardship” on Gorbey and do not serve to extend his confinement
beyond the expected parameters of his sentence. Sandin, 515 U.S. at 484-85.
Consequently, he is not entitled to relief.
ll. Conclusion
Based on the foregoing, the Court will deny the petition for writ of habeas corpus. A
separate Order shall issue.
GY
: \LLA Nh
Robert D.Mariani
United States District Judge
Dated: September at 2021
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