The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL S. OWL FEATHER-GORBEY, : Civil No. 3:20-cv-1364
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, Estill, South Carolina. (/d.). For the reasons set
forth below, the Court will deny the petition.
I. Background
In March 2020, Gorbey was charged in incident report number 3379061 with
disruptive conduct most likely the use of drugs. (Doc. 1, p. 2; Doc. 11-1, p. 3). Gorbey
alleges that he is innocent of the charge and that his due process rights were violated
because he was not afforded 24 hours’ notice of the Discipline Hearing Officer (“DHO")
proceedings, he was denied a staff representative of his choice and instead received
ineffective assistance from an appointed staff representative, and he was denied witnesses
and evidence for his defense. (/d. at pp. 6-8). For relief, Gorbey requests, infer alia, that
the Court expunge the incident report and restore the loss of good conduct time. (/d. at p.
8).
ll. Discussion
The reporting officer detailed the incident as follows:
On March 16, 2020, at 11[:]20am, | Ofc. J Mastro was assigned to Carlie
Alpha for duty. While conducting a routine security round[,] I/M Gorbey,
Michael reg. 33405-013 was seen exiting his cell (224) screaming and
causing a disruption. Inmate Gorbey began to act erratic and appeared to be
under the influence of an unknown substance. | began to call inmate Gorbey
by name in an effort to have him return to his cell. As | did so, Ofc. R.
Williams entered to assist with the inmate. At that time, | observed inmate
Gorbey had urinated and vomited on himself. When additional staff had
arrived, inmate Gorbey was placed in hand restraints and escorted to SHU
without further incident. Inmate Gorbey was asked to breathe into a
breathalyzer to determine if he had been consuming alcohol and he complied.
The test was conducted utilizing an Alco-Sensor III and the test was negative.
Inmate was also directed to provide a Urine Specimen sample and he
complied which tested negative. A review of his medical records was
conducted by Nurse Ulmer. Nurse Ulmer stated that the inmate does have
slurred speech and squinted eyes. Inmate does not have any medical
condition that contributed to his condition. Inmate is not on any medication
that will cause this type of reaction. It is my professional opinion this inmate
is using illicit drugs.
(Doc. 11-1, p. 5 § 11, Incident Report).
On March 16, 2020, Gorbey was charged in incident report number 3379061 with
disruptive conduct most likely use of drugs, a code 199/112 violation. (/d.). As part of the
investigation, Gorbey stated: “Two or three inmates ran in the cell and threw urine on me.
They then held the door shut where | couldn't get out.” (/d. at p. 4 § 24). The incident report
was rewritten by the reporting officer on March 20, 2020 and delivered to Gorbey later that
day. (/d. at p. 5). When the second incident report was delivered to Gorbey, the
investigating lieutenant advised Gorbey of his right to remain silent, which he understood,
and advised him that the incident report was a rewrite. (Id. at pp. 5, 6). Gorbey stated that
he had nothing else to add to his previous statement. (/d.).
On March 23, 2020, Gorbey appeared before the Unit Discipline Committee (“UDC”).
(Id. at p. 5 §§ 17-21). Due to the severity of the offense, the UDC referred the charge to the
Discipline Hearing Officer. (/d. at p. 5 §§ 18-20).
On March 23, 2020, 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. (Id.
at p. 8, Inmate Rights at Discipline Hearing). Gorbey was also provided with a “Notice of
Discipline Hearing before the Discipline Hearing Officer (DHO)” form. (/d. at p. 7, 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.).
The DHO hearing commenced on April 29, 2020 and was concluded on May 5,
2020.1 (/d. at p. 12, DHO Report). During the May 5, 2020 hearing, the DHO confirmed
1 At the April 29, 2020 hearing, the DHO continued the hearing in order to contact a lieutenant
regarding video footage of the incident. (Doc. 11-1, 12 §V).
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 three witnesses. (/d. at p. 10 §§ I-Il). Gorbey indicated that he understood his rights,
that he discussed his case in advance with his staff representative and had made no
specific requests of his staff representative. (/d. at p. 10 § Ill). The staff representative
confirmed that he discussed the case with Gorbey and that Gorbey made no specific
requests of him. (/d. at p. 10 § Il).
Gorbey presented two documents for the DHO’s consideration. (/d. at p. 10 § Ill).
The first document was a handwritten statement, titled “My Statement to DHO”, was
undated, and contained Gorbey’s name and Bureau of Prisons (“BOP”) register number.
(/d.). The DHO summarized Gorbey’s handwritten statement as follows:
Gorbey states on 3-16-2020, he arrived in his assigned cell CA 224 at FCI
Estill around 10:45 AM from work on the landscaping detail. Gorbey states
his hypoglycemia was causing a drop in his (blood) sugar and making him
lazy, we[a]k, and dizzy. Gorbey states he was “sitting in his chair, nodding,
while waiting for lunch.” Gorbey states inmates entered his cell, struck him
several times, threw “stuff on him and then exited his cell and barred the
door to prevent him from exiting while they called for others to assist them in
assaulting him. Gorbey states he hit his cell alarm and “muscled his way out
of the cell, cussing at the ones responsible”, while the reporting officer stood
by and watched, failing to keep Gorbey safe. Gorbey states the reporting
officer hit his alarm, and other staff arrived and took only Gorbey away and
“processed him on a bogus intoxication charge even after breeith and urine
results were negative”. Gorbey states he was examined by Nurse Ulmer who
simply took his vitals, but “did not examine his injuries from the assault”.
Gorbey further alleges Nurse Ulmer never consulted his medical records or
medication drug facts. Gorbey alleges he “complained to a list of staff,
several Lieutenant staff and administration requesting they review the camera
to see the other inmates involved who caused this.” Gorbey reiterates his
allegation [that] he was assaulted by other inmates while the reporting officer
“refused to keep him safe”, and only acted after Gorbey “sounded his cell
alarm and muscled his way out of the cell.” Gorbey concludes, stating, “l am
innocent of any violation of BOP policy and | want the charge obspunged
[sic].”
(Id. at pp. 10-11 § Ill).
At the hearing, Gorbey also provided the DHO with a copy of a BOP Health Services
Consultation Request Form prepared with regard to Gorbey on September 3, 2019. (/d. at
p. 11 § Ill). Gorbey stated his prescribed medications, Ibuprofen and Latanoprost
Ophthalmic Solution, could have caused the behavior noted in the incident report. (/d.).
Gorbey alleged that Ibuprofen causes “uncontrolled or other vomiting,” and the Latanoprost
Ophthalmic Solution causes dizziness and slurred speech. (/d.). Gorbey also wrote on the
form that he suffers from hypertension and hypoglycemia, both of which can cause
dizziness and slurred speech. (/d.). In addition to the handwritten documents, Gorbey
testified that the incident report was inaccurate, and stated:
... this is a bogus charge. | wasn’t using any type of drugs. My blood sugar
was low, and that combined with my prescribed medications made me weak
and dizzy and caused me to have slurred speech. | was covered with urine
because two or three other inmates assaulted me by throwing urine on me.
Then they held my cell door shut so | couldn't get out. The assault caused
me to hyperventilate and act erratically. [A lieutenant] told me he watched the
video footage and he verified | was assaulted. If you contact him, he can
verify that he watched the video, and that | was assaulted.
During the DHO hearing, Gorbey made no complaints of procedural errors. (/d.).
The DHO noted that when Gorbey appeared before the UDC, he requested the
following three witnesses: a doctor, to testify that Gorbey “wasn't high”; a lieutenant, to
testify that Gorbey “wasn’t high” and that he saw Gorbey; and a staff member from the
facilities department, to testify that he saw Gorbey in the holding cell. (/d. at p. 7). The
DHO declined to call any of the witnesses requested by Gorbey. (/d. at p. 11 § Ill). With
regard to the doctor, the DHO stated that there was no indication that he was an eyewitness
to any part of the incident. (/d.). Instead, the doctor only co-signed the BOP Health
Services Clinical Encounter Form pertaining to Gorbey. By co-signing the Form, the doctor
“indicat[ed] his concurrence with the findings of Nurse Ulmer that Gorbey did not have any
medical condition or take any medication that contributed to his condition, and with Nurse
Ulmer’s professional opinion that inmate Gorbey was using illicit drugs.” (/d.). Therefore,
the DHO deemed the doctor an adverse witness whose knowledge of the incident was
adequately summarized in the record. (/d.).
With respect to the lieutenant, the DHO stated that he was not an eyewitness to the
incident. (/d.). The lieutenant supposedly reviewed video footage of the incident and could
corroborate Gorbey’s claim that he was assaulted by other inmates. (/d.). The lieutenant
was not available at the time of the original hearing but presented a statement the following
day. (/d.). In the statement, the lieutenant suggested that the DHO speak with a Special
Investigative Services (“SIS”) technician who had reviewed the video footage and
determined that the inmates at the door “were just trying to help Gorbey because he was
high.” (/d.). The SIS technician presented a statement dated May 1, 2020, wherein he
stated that “he reviewed the video footage related to inmate Gorbey, and concluded based
on this footage that Gorbey was ‘under the influence during the incident.” (/d.). The DHO
considered these statements and found that it was not necessary to call the lieutenant as a
witness because it was evident that he was not an eyewitness to the incident. (/d.).
The DHO next determined that the facilities staff member had no information directly
relevant to the incident. (/d.). The DHO noted that the staff member may have observed
Gorbey in the holding cell after the incident, however he did not observe Gorbey during the
incident. (/d.). The DHO therefore found that any information presented by the staff
member would not be material to determining whether Gorbey engaged in the behavior
documented in the incident report. (/d. at pp. 11-12 § Ill).
In reaching his decision, the DHO considered the eyewitness written account of the
reporting officer as set forth in the incident report, the investigation, the BOP Health
Services Clinical Encounter Form prepared on March 16, 2020, statements of the lieutenant
and SIS technician, Gorbey’s handwritten statement, and the BOP Health Services
Consultation Request dated September 3, 2019. (/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 conduct which disrupts or interferes with the
security or orderly running of the institution most like the use of any drug not prescribed by
medical staff, a code 199/112 violation. (Id. at p. 14 § V). The DHO found Gorbey’s
testimony less credible and gave it less weight. (/d.). The DHO noted that the bizarre and
erratic behavior demonstrated by Gorbey at the time of the incident was witnessed and
documented by two staff members, one of whom was a medical professional who
determined that Gorbey did not have a medical condition or take any medication that could
have contributed to his behavior. (/d.). Additionally, the DHO noted that Gorbey blatantly
lied when making claims relating to the lieutenant’s alleged review of video footage, which
critically detracted from the credibility of his testimony. (/d.). Finally, the DHO noted that
although Gorbey’s Breathalyzer test and urine sample were negative, these results were not
conclusive evidence that Gorbey was not under the influence of an illicit substance at the
time of the incident. (/d.). The DHO found that it simply meant that Gorbey did not have
alcohol on his breath, and the urine sample did not test positive for one of the illegal drugs
or controlled substances that the BOP is capable of screening. (/d.). The DHO noted that
BOP inmates are using new psychoactive substances, including synthetic cannabinoid,
which may not be detectable in urine screens, and cause grave security, safety, and health
concerns within correctional institutions. (/d.).
After determining that Gorbey committed the prohibited act as charged, the DHO
sanctioned Gorbey with 41 days loss of good conduct time, 90 days of disciplinary
segregation, and loss of commissary, telephone, and visiting privileges for one year. (/d. at
p. 15 § 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. 15 § VIII).
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. /d.
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
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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 March 23, 2020, seven days after the incident and more than one month before
the DHO hearing. See 28 C.F.R. § 541.8(c) (providing that the warden is required to give
the inmate advance written notice of the charges “at least 24 hours before the DHO’s
hearing’).
Gorbey appeared before the UDC and was allowed to provide a statement on his
own behalf. He was properly informed of his rights before the DHO hearing, as well as
given the opportunity to make a statement, present documentary evidence, and have a staff
representative. Pursuant to BOP Policy, “[iJif [the inmate’s] request(s) [for a staff
representative] cannot be fulfilled, and [the inmate] still want[s] a staff representative, the
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Warden will appoint one.” (Doc. 11-1, at 43, Program Statement 5270.09). Here, Gorbey
initially requested an FCI-Estill staff member as his staff representative. (Doc. 11-1, p. 7).
However, before the DHO hearing was held at FCI-Estill, Gorbey was transferred to USP-
Lewisburg because a tornado hit FCI-Estill. (Doc. 11-1, p. 13). Therefore, the Warden at
USP-Lewisburg appointed a new staff member to represent Gorbey. (Doc. 11-1, p. 7).
At the hearing, the DHO decided not to call Gorbey’s three requested witnesses
because they either did not have information directly relevant to the charges, did not witness
the incident, or were adverse. Pursuant to 28 C.F.R. § 541.8(f)(3), the inmate’s “requested
witnesses may not appear if, in the DHO’s discretion, they are not reasonably available,
their presence at the hearing would jeopardize institution security, or they would present
repetitive evidence.” The DHO carefully outlined his reasons for not calling Gorbey’s
requested witnesses.
At the end 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.
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
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finding that Gorbey violated code 199/112. In reaching his decision, the DHO considered
the eyewitness written account of the reporting officer as set forth in the incident report, the
investigation, the BOP Health Services Clinical Encounter Form prepared on March 16,
2020, statements of the lieutenant and SIS technician, Gorbey’s handwritten statement, and
the BOP Health Services Consultation Request dated September 3, 2019. 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 100-level, greatest severity
prohibited act. Pursuant to 28 C.F.R. § 541.3, the following are the sanctions available for
100-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 100%) and/or terminate or disallow extra good
time (an extra good time or good conduct time sanction may not be
suspended).
B.1. Disallow ordinarily between 50% and 75% (27-41 days) of good
conduct time credit available for year (a good conduct time sanction
may not be suspended).
C. Disciplinary segregation (up to 12 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.
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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]lhe 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.
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Il. Conclusion
Based on the foregoing, the Court will deny the petition for writ of habeas corpus. A
separate Order shall issue.
=f |
| ALA UME
Robert D»Mariani
United States District Judge
Dated: September 2H , 2021
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