Shehadeh v. English et al

Filing 4

MEMORANDUM AND ORDER ENTERED: This matter is dismissed. Petitioner's motion to proceed in forma pauperis 2 is granted. Petitioner's motion to appoint counsel 3 is denied. Signed by District Judge John W. Lungstrum on 01/04/17. Mailed to pro se party Jamal Shehadeh by regular mail. (smnd) Modified file date on 1/5/2017 (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMAL SHEHADEH,
Petitioner,
v.

CASE NO. 16-3259-JWL

N.C. ENGLISH,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner proceeds pro se, and the Court grants leave to
proceed in forma pauperis.
Petitioner is incarcerated at the U.S. Penitentiary,
Leavenworth, Kansas. He seeks relief in habeas corpus to obtain
immediate release from his placement in the Special Housing Unit
(“SHU”) and to expunge his pending administrative disciplinary
report. In the alternative, he seeks mandamus relief directing
officials to transfer the disciplinary report to the hearing officer.
Background
On November 9, 2016, staff conducted a search of petitioner’s
cell and found a green leafy substance in a common area. Staff issued
petitioner a disciplinary report for possession of K2 and transferred
him to the SHU. As a result of that transfer, petitioner has no access
to the telephone, law library, food commissary, outdoor recreation,
e-mail, and other privileges.
On November 12, 2016, staff served petitioner with a disciplinary
report dated November 10, 2016. Petitioner complains that he has not
received an initial hearing or appeared before a Discipline Hearing

Officer (“DHO”).
Petitioner recognizes that an initial appearance and referral
to the DHO may be deferred when a disciplinary matter is referred for
prosecution, but he believes that no such referral will be made until
the substance seized tests positive for narcotics.
Analysis
1. The claims for habeas corpus relief
A federal inmate is entitled to habeas corpus relief under 28
U.S.C. § 2241 if he is “in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2241(c).
A prisoner’s earned good time credit cannot be withheld without
the minimum due process requirements identified in Wolff v. McDonnell,
418 U.S. 439, 566-67 (1974) and Superintendent, Mass. Corr. Inst. v.
Hill, 472 U.S. 445, 457 (1985). Here, because no disciplinary action
has occurred, a claim for habeas corpus relief is premature.
Next, to the extent petitioner complains of the processing time
in his disciplinary action, where a matter has been referred for
possible prosecution, the administrative disciplinary action is
suspended.
The governing policy statement, Bureau of Prisons Program
Statement 5270.091, provides:
When it appears likely that the incident may involve
criminal prosecution, the investigating officer suspends
the investigation. Staff may not question the inmate until
the FBI or other investigative agency releases the incident
report for administrative processing. The incident report
should then be delivered to the inmate by the end of the
next business day. The time frame for processing the
incident report is suspended until it is released for
processing.

1

www.bop.gov/policy/progstat/5270_009

A delay resulting from a referral for possible prosecution,
however, does not entitle petitioner to habeas corpus relief.
Finally, to the extent petitioner seeks release from the SHU,
he does not state a claim for habeas corpus relief. His placement in
administrative segregation does not “involve deprivation of a liberty
interest independently protected by the Due Process Clause.” Trujillo
v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006).
While petitioner’s conditions of confinement in the SHU may be
more difficult than those in a general population housing area, the
Constitution does not create a protected interest in avoiding a
transfer to more adverse conditions of confinement. See Moody v.
Daggett, 429 U.S. 78, 87 n.9, (1976)(absent a state-created liberty
interest, the Due Process Clause is not implicated by a change in a
prisoner’s security classification or transfer from one facility to
another).
2. The claim for mandamus relief
Mandamus relief is available “to compel a government officer or
employee of the United States or any agency thereof to perform a duty
owed to the plaintiff.” 28 U.S.C. § 1361. A party seeking mandamus
relief must show “(1) that he has a clear right to relief, (2) that
he [official’s] duty to perform the act in question is plainly defined
and peremptory, and (3) that he has no other adequate remedy.” Rios
v. Ziglar, 398 F.3d 1201, 1206 (10th Cir. 2005).

Petitioner asks the Court to direct the immediate transfer of

his disciplinary action to the DHO. The Court finds no basis to grant
this request.
If, as it appears, this matter has been referred for possible
prosecution, the administrative disciplinary action is suspended
under Bureau of Prisons policy. Otherwise, if the matter has not been
referred, the Court finds no mandatory provision that warrants
mandamus relief. The regulations provide that the facility’s Unit
Discipline Committee (“UDC”) will ordinarily review an incident
report within 5 days of its issuance, 28 C.F.R. § 541.7(c), and that
where a prisoner is charged with a Greatest or High severity prohibited
act, the UDC will automatically refer the matter to the DHO for review.
§ 541.7(b)(4). Neither provision, however, suggests that petitioner
is plainly entitled to mandamus relief to obtain immediate review of
the incident report.
For the reasons set forth, the Court concludes petitioner’s
request for habeas corpus is premature and subject to dismissal.
Likewise, because the petitioner has not shown any mandatory or
ministerial duty to grant the remedy of immediate transfer that he
seeks, the Court denies mandamus relief.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed.
IT IS FURTHER ORDERED petitioner’s motion to proceed in forma
pauperis (Doc. #2) is granted.
IT IS FURTHER ORDERED petitioner’s motion to appoint counsel
(Doc. #3) is denied.

IT IS SO ORDERED.
DATED:

This 4th

day of January, 2017, at Kansas City, Kansas.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
U.S. Senior District Judge