Rashaw-Bey v. Nalley et al

Filing 2

MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is dismissed and all relief is denied. Signed by Senior District Judge Richard D. Rogers on 7/5/2011. (Mailed to pro se party Geoffrey L. Rashaw-Bey by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GEOFFREY L. RASHAW-BEY,
Petitioner,
CIVIL ACTION
No. 09-3043-RDR

vs.
M. NALLEY, et al.,

Respondents.

MEMORANDUM AND ORDER
This matter comes before the court on a petition for habeas
corpus filed pursuant to 28 U.S.C. § 2241.

Petitioner, a

prisoner in federal custody, proceeds pro se and submitted the
filing fee.
Background
It appears from the materials submitted with the petition
that petitioner was charged with possession of contraband after
a small plastic bag of tobacco was found inside his shirt
sleeve.

The discovery occurred on February 28, 2008, and

petitioner reports the Unit Discipline Committee (UDC) hearing
was conducted on March 4, 2008.
Petitioner was found guilty, and the UDC imposed 90-day
restrictions on phone and commissary privileges and visitation.

Petitioner seeks relief on the ground that his hearing
before the UDC was not conducted within 72 hours of the incident.

He also states he was performing his job at the time of

the incident by removing debris from the compound and found the
tobacco there.
Discussion
The court liberally construes the pro se petition to assert
a denial of due process in prison disciplinary proceedings.
When such proceedings result in the loss of a liberty
interest, include the loss of good time credits, a prisoner is
entitled to procedural protections.

These protections include

advanced written notice of the charges, the opportunity to call
witnesses and present evidence where this will not interfere
with institutional security and order, a written statement of
the evidence relied upon by the factfinder and the reasons for
the decision, and some evidentiary support for the decision.
See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.
445, 454 (1985)(citing Wolff v. McDonnell, 418 U.S. 539, 563-67
(1974)).
However, not every disciplinary sanction implicates the Due
Process Clause and triggers the necessity for these procedural
protections.

In Sandin v. Conner, 515 U.S. 472 (1995), the

2

United

States

sentenced

to

Supreme
30

Court

days

in

held

that

disciplinary

a

prisoner

segregation

who

was

had

no

protected liberty interest and was not entitled to procedural
protections.

Id. at 475-76, 486. “Discipline by prison offi-

cials in response to a wide range of misconduct falls within the
expected perimeters of the sentence imposed by a court of law.”
Id. at 485.

It is only where an “atypical or significant

hardship” in relation to ordinary prison life occurs or there is
an impact on the length of a prisoner’s confinement that a
protected liberty interest is implicated.

Id.

Thus, where, as

here, a prisoner is punished with a brief loss of privileges,
the Due Process Clause is not implicated.
Finally, the court liberally petitioner’s claim to arise
from the federal regulation governing the initial hearing before
the UDC.

This provision, 28 C.F.R. § 541.15, states that an

inmate charged with violation of a rule is entitled to a hearing
before the UDC “ordinarily held within three work days from the
time staff became aware of the inmate’s involvement in the
incident.”
However,

not

only

does

this

regulation

allow

some

flexibility, it is settled that “a failure to adhere to administrative regulations does not equate to a constitutional viola-

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tion.”

See Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th

Cir. 1993) (citing Davis v. Scherer, 468 U.S. 183, 194 (1984)).
Therefore, the slight delay in conducting the UDC hearing does
not provide a basis for habeas corpus relief.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for
habeas corpus is dismissed and all relief is denied.
A copy of this order shall be transmitted to the petitioner.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 5th day of July, 2011.

S/ Richard D. Rogers
RICHARD D. ROGERS
United States Senior District Judge

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