explaining Plaintiff is represented by counsel in this case. The court notes that □□ since Judge Mehalchick stated the full procedural history of this case in her report and since plaintiff did not object to it, the court will not repeat it herein. | ? judges should give some review to every Report and Recommendation
How later courts described this case
- explaining Plaintiff is represented by counsel in this case. The court notes that □□ since Judge Mehalchick stated the full procedural history of this case in her report and since plaintiff did not object to it, the court will not repeat it herein. | ? judges should give some review to every Report and Recommendation
- explaining “Plaintiff is represented by counsel in this case. The court notes that since Judge Schwab stated the full procedural history of this case in her report and since plaintiff did not object to it, the court will not repeat it herein. judges should give some review to every Report and Recommendation
- holding that "the failure to object to a magistrate's legal conclusions may result in the loss of the right to de novo review in the district court"
- holding that “the failure of a party to object to a magistrate’s legal conclusions may result in the loss of the right to de novo review” in the district court — but not in the loss of the statutory right to appellate review
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Redding v. Holt
812 F.2d 874, 878 (3d Cir. 1987), superseded by statute on other grounds as stated in Redding v. Holt, 252 Fed. Appx. 488
The opinion
GIBBONS, Chief Judge, dissenting:
I join in Part I of the opinion of the court, which holds that the officials of the Bureau of Prisons did not waive their right to appeal by failing to make timely objections to the Magistrate’s Report. I also join in Part II, holding that we review federal prison disciplinary proceedings as a matter of federal law under the “substantial evidence” standard which the Bureau of Prisons adopted in 28 C.F.R. § 541.17 (f) *881 (1986), rather than by the lower “some evidence” test applicable, by virtue of the due process clause, to state prison disciplinary proceedings. 1 I also join in Part III, to the extent that it holds that the United States Magistrate erred in holding that when reviewing a Bureau of Prison’s disciplinary determination, evaluation of the reliability of an informant must be made on the basis of the record disclosed to the disciplined inmates, without regard to in camera materials considered by the disciplinary tribunal. Thus, I agree that in exercising review of the disciplinary board’s decision by habeas corpus or otherwise, we must take into account the contents of the in camera materials.
I part company with the majority, however, at paragraph 15. I do not agree that there is substantial evidence, even if we include the in camera materials, that Archie L. Henderson committed the offense with which he was charged. The incident report dated April 17, 1985, containing the charge, alleges that Henderson planned and attempted to introduce drugs into the prison through the visiting room in concert with fellow inmate Willie Strickland and certain female visitors. Henderson denied guilt and a hearing was held on May 3, 1985. Henderson called three witnesses, one of whom was Strickland, who denied that Henderson was involved in Strickland’s drug smuggling activities. In finding that he was guilty of the charge, the Institution Discipline Committee relied on an investigatory report containing summaries of interviews with four confidential informants, excerpts from monitored phone calls by Henderson, guard observation reports, and excerpts from intercepted letters mailed by Henderson to Stephanie D. Taylor.
The Institution Discipline Committee found that, “based on the reliability and corroboration of the confidential informants along with telephonic intelligence and physical evidence”, there was substantial evidence to indicate that Henderson committed the act as charged. The finding of guilt resulted in Henderson’s loss of sixty days of statutory good time credit, suspension of all social visits for one year and suspension of visits by Stephanie Taylor for five years.
The investigatory report upon which the Institution Discipline Committee relied was reviewed in camera because it contains the identity of the confidential informants who supplied information to the investigator. Without revealing their identity, the information that they furnished is as follows:
1. Henderson was a member of a group of three inmates who in the past had received marijuana in bulk from a corrupt correctional officer (who was later arrested) and had distributed it for profit in the institution.
2. Thereafter Henderson was suspected of introducing drugs through the visiting room, of using his visitor Stephanie D. Taylor as a mule, and of distributing the drugs through Willie Strickland. The suspicion was based upon monitored telephone calls and letters referring to “our circle” and upon monitored calls referring to the receipt by potential visitors of two packages, one from Miami and another from Missouri. None of the telephone calls or letters mentioned drugs explicitly.
3. The suspected modus operandi of the drug smuggling operation was for the female visitor to conceal balloons containing the drugs in her mouth and transfer them to Henderson while kissing him, and for Henderson to swallow the balloons and later recover them after they passed through his body. The drugs would then be distributed through Strickland.
4. On November 8, 1984, following a visit by Stephanie D. Taylor, Henderson was placed in a dry cell in order to recover the balloons. A dry cell is one in which the inmate is observed and his excrement is *882 preserved. The dry cell operation was discontinued with negative results. Henderson remained under suspicion, however, because a confidential informant indicated that he “felt” that Henderson had “beat” the prison officials by successfully passing several balloons out of the dry cell during a period of momentary distraction of the dry cell officer. This “feeling” was not based upon any observation of the balloons being passed out of the cell nor upon any observation of such a distraction of the dry cell officer. No corroboration of the momentary distraction was furnished by the dry cell officer.
5. On March 16, 1985, Stephanie Taylor visited Henderson again. While she was there, Henderson placed some unidentified object in his mouth and drank a beverage. The visit was recorded by a closed-circuit camera which apparently was not shown to the Institution Discipline Committee. Henderson was again placed in a dry cell, and told a corrections officer that he would “hold out as long as he could” to force the institution to pay overtime for the dry cell operation. The dry cell operation was discontinued with negative results. The report again stated that “intelligence [unidentified] indicates that the possibility exists that inmate Henderson may have found an opportunity to again rid himself of any contraband while in the cell.”
There is no other evidence, direct or circumstantial, first-hand or hearsay, that Henderson in fact introduced drugs into the institution through the visiting room in concert with Willie Strickland.
I am willing to assume arguendo that the Institution Discipline Committee could credit the informant information that Henderson was part of the marijuana distribution ring involving the corrupt correctional officer. I am willing to assume, as well, that the telephone calls and letters suggest possible membership in some kind of group. But these facts are not substantial evidence of the specific charge made. Marijuana is far too bulky a substance to be hidden in balloons and swallowed, on two occasions, in sufficient quantities to support a distribution scheme. Another drug might have been the object of the alleged scheme, although none is identified. Even if we credit the possibility that some other drug was placed in a balloon and swallowed, there is no evidence that Stephanie D. Taylor possessed such a drug. Assuming she did, and passed it to Henderson, it should have been recovered in the dry cell. No drugs were recovered on either occasion.
Thus, the sole evidence supporting the charge is the “feeling” of an unnamed informant that Henderson was able, on two occasions, to evacuate his bowels, recover a balloon or balloons, distract the dry cell officer, and pass the balloons unobserved, to some unidentified confederate. There is no corroboration by the dry cell officer of any such distraction or of the presence near the dry cell of any such confederate. Furthermore, there is no evidence of a linkage between the dry cell confederate and Willie Strickland.
We review many agency decisions under a substantial evidence standard. If we were asked to sustain a decision of the National Labor Relations Board or the Social Security Administration on evidence of the quality here involved, there would be no doubt of the outcome. The Bureau of Prisons has adopted the substantial evidence standard. It cannot do so, however, and expect us, in exercising our review function under that standard, to suspend our powers of reason. Whatever Henderson and Strickland were up to, there is no evidence that they were doing what Henderson was charged with. The speculation that some informant “felt” that the ingenious Mr. Henderson could swallow enough balloons full of drugs to support a distribution network, pass them unobserved while in a dry cell and then, while distracting the dry cell officer who was charged with observing him, pass them out of the dry cell is just that — mere speculation. It is not evidence at all.
Since there is no substantial evidence supporting the charge that Henderson introduced drugs through the visiting room in concert with Willie Strickland, I would affirm the order appealed from.
. Because the Bureau of Prisons has adopted the same test — substantial evidence — that would be triggered if the Bureau is a federal agency within the meaning of the Administrative Procedure Act, 5 U.S.C. § 551 (1) (1982), we need not consider that question. Compare Ramer v. Saxbe, 522 F.2d 695, 697 (D.C.Cir.1975) with Clardy v. Levi, 545 F.2d 1241, 1246 (9th Cir.1976). We left the question open in Allen v. Aytch, 535 F.2d 817 , 822 n. 23 (3d Cir.1976).