“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
How later courts described this case
- “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FRANCISCO LORA, :
Petitioner :
v. : Case No. 3:24-cv-215-NBF-KAP
MICHAEL UNDERWOOD, WARDEN, :
F.C.I. LORETTO, :
Respondent :
Report and Recommendation
Recommendation
Petitioner Lora, an inmate at F.C.I. Loretto, filed a petition at ECF no. 4 for a writ
of habeas corpus pursuant to 28 U.S.C.§ 2241, challenging the Bureau of Prisons’
forfeiture of 27 days good conduct time (GCT), see 18 U.S.C.§ 3624, resulting from
disciplinary proceedings in which petitioner was charged with stealing in violation of
disciplinary Code 219, see 28 C.F.R.§ 541.3, table 1. The government responded at ECF
no. 11. I recommend that the petition be denied.
Report
Petitioner Lora was stopped while leaving the dining hall at Loretto late in the
morning of September 28, 2023. The Bureau of Prisons alleges that Lora was patted down
and a clear plastic bag with 1.7 pounds of shredded chicken in it was found in his left rear
pants pocket. Lora was charged with stealing.
After initial proceedings before the Unit Disciplinary Committee, see 28 C.F.R.
§541.7, the matter was referred to a disciplinary hearing officer (DHO), who held a hearing
in October 2023 that resulted in a finding that was vacated in the administrative appeals
process. The matter was returned for a second DHO hearing on February 8, 2024. The
Bureau presented the history of the search and a photograph of the seized item, part of
Attachment 2 to the Response, ECF no. 11 at 27. Lora explained that he suffered from
kidney stones and was taking “a piece of chicken that was given to me at lunch” back to
his unit to make soup so he could take his medication with food. Lora explained that his
religious beliefs required that food be taken with medication.
The DHO, B. Vegh, found Lora guilty, forfeited 27 days GCT, and imposed other
sanctions that have expired. After exhausting administrative remedies, Lora filed the
petition in this matter, asserting that 1) it was a piece of chicken (specifically, a one and a
half leg quarter, bone-in), not a bag of shredded chicken; and 2) the chicken was given to
him to eat, so he could not be guilty of stealing.
1
Prison disciplinary hearings are required to comply with procedural safeguards
that are far less than the full panoply that would be provided in a criminal prosecution.
After Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974), a prison disciplinary hearing that
results in the loss of GCT or otherwise extends the time spent in custody must provide at
least these procedural safeguards: an impartial decision-making body; at least twenty-
four hours of advance written notice of the charges; an opportunity to call witnesses and
present documentary evidence; assistance from an inmate representative if the charge
involves complex issues or if the prisoner is illiterate; and a written decision explaining
the evidence relied upon and the reasons for the disciplinary action. 28 C.F.R. §541.8. See
Campbell v. Warden Allenwood USP, 808 Fed.Appx. 70, 72 (3d Cir. 2020); see also BOP
Program Statement 5270.09. There is no claim that Lora was not afforded these
procedural protections at his second hearing. Lora called two witnesses, one a staff
medical officer that confirmed that Lora had suffered from kidney stones (but who did
not confirm the medical necessity of eating food with medication) and the other a fellow
inmate who confirmed that Lora had kidney stones and planned to make soup.
Prison disciplinary hearings also have a substantive evidentiary requirement, and
it similarly is far below the standard that applies in criminal trials, civil trials, and even
most administrative hearings. Disciplinary proceedings that result in loss of GCT or
otherwise will affect the length of a sentence will be upheld if there is “some evidence” to
support them. Superintendent v. Hill, 472 U.S. 445, 455, (1985). Habeas review “does not
require examination of the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence. Instead, the relevant question 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. at 455. This is codified in the Bureau of Prisons’
regulations at 28 C.F.R.§ 541.8(f), requiring that “[t]he DHO's decision will be based on
at least some facts and, if there is conflicting evidence, on the greater weight of the
evidence.” See Bureau of Prisons Program Statement 5270.09, Inmate Discipline
Program (https://www.bop.gov/policy/progstat/5270_009.pdf, substantially setting out
28 C.F.R.§ 541.1-8).
Superintendent v. Hill does not contemplate that a habeas court can reweigh the
finding by a DHO based on its view of the evidence. After Scott v. Harris, 550 U.S. 372,
380 (2007)(“When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.”)
there might be a persuasive case for modifying this rule if there were proof that guilt of a
disciplinary offense was truly impossible, but this is not that case. The photograph is part
of the record and it is not clear, but it certainly looks more like a bag of shredded chicken
than a leg quarter. This court can no more disregard the DHO’s weighing of the evidence
than it can question the decision to charge Lora with stealing rather than the lesser offense
2
of possession of contraband in violation of Code 331.
The point of Superintendent v. Hill is that judicial review of the judgment of a DHO
and indeed of the substantive basis for all prison disciplinary proceedings is limited to a
degree that would never be tolerated in review of the sufficiency of evidence in a criminal
trial. See e.g. Goodloe v. Warden Lewisburg USP, No. 24-1170, 2025 WL 342189, at *2
(3d Cir. Jan. 30, 2025) (affirming denial of a habeas petition because the identification of
the contraband as amphetamines was based on “field tests” of admittedly unknown
reliability, and implying that the burden was on the inmate to prove the unreliability of
evidence). Where the DHO’s finding, as it was here, is based on credibility judgments
about the witnesses at the hearing, it is virtually unassailable. See e.g. Fellows v. Warden
Lewisburg USP, No. 23-1902, 2023 WL 5092769, at *2 (3d Cir. Aug. 9, 2023)(affirming
denial of habeas petition based on a DHO’s conclusion that an inmate who failed to
produce a sufficient amount of urine for testing was guilty of a “refusal” and not a failure
simpliciter.)
The petition must be denied.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written
objections to this Report and Recommendation. In the absence of timely and specific
objections, any appeal would be severely hampered or entirely defaulted. See EEOC v.
City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate
review when no timely and specific objections are filed as limited to review for plain
error).
bee
DATE:_April 30, 2025
Keith A. Pesto,
United States Magistrate Judge
Notice by ECF to counsel of record and by U.S. Mail to:
Francisco Lora, Reg. No. 92091-054
F.C.I. Loretto
P.O. Box 1000
Cresson, PA 16630