Zebrowski v. United States Federal Bureau of Prisons et al

Filing 18

ORDER adopting 15 Report and Recommendations. The Report and Recommendation of United States Magistrate Judge F. Keith Ball is hereby adopted as the finding of this Court, and the entire action should be dismissed without prejudice. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on March 5, 2013. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
DAVID ZEBROWSKI

PETITIONER

VS.

CIVIL ACTION NO. 5:11cv82-DPJ-FKB

ARCHIE LONGLEY

RESPONDENT
ORDER

This habeas petition came on this date to be heard upon the Report and Recommendation
[15] of the United States Magistrate Judge, after referral of hearing by this Court. Magistrate
Judge Ball recommended dismissal of the petition. Petitioner David Zebrowski filed Objections
[16], and Respondent Archie Longley declined to respond. The Court, having fully reviewed
Zebrowski’s Objections and the Report and Recommendation, and being duly advised in the
premises, finds that Judge Ball’s recommendation should be adopted as the opinion of this Court.
First, Zebrowski argues that he was prejudiced because the hearing officer failed to call
witnesses.1 From his brief and the affidavits Zebrowski submitted, it appears that two other
inmates testified that the reporting officer said, “You could have at least said excuse me.”
Objections [16] Ex. 5, Adams Aff. ¶ 4; id., Ex. 6, Leggett Aff. ¶ 4. But these witnesses had also
testified that they “did not hear what else was said during the conversation.” Objections [16] Ex.
5, Adams Aff. ¶ 6; id., Ex. 6, Leggett Aff. ¶ 6. Even if the hearing officer improperly excluded
the witnesses,2 Zebrowski appears to argue that these witnesses would have provided affirmative
1

Zebrowski does not object to Judge Ball’s conclusion that he waived his right to call
witnesses at the disciplinary hearing. See Defs.’ Resp. Pet. [12] Ex. 4, Notice of Hr’g at 2.
2

“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). In this context, “due process typically requires notice, an opportunity to
call witnesses and present evidence, and that ‘some evidence’ supports the ruling, but those

proof that the incident never happened. But the witnesses’ affidavits reveal that something
occurred between Zebrowski and the guard, and at best the witness testimony would have shown
only that the two affiants did not see or hear the entire incident. Mascitti v. Thaler, 416 F. App’x
411, 415 (5th Cir. 2011) (“[E]ven in the event of a constitutional violation, a habeas petition may
not be granted unless the petitioner demonstrates that he was prejudiced by the violation.”
(citation omitted)). Thus, Judge Ball correctly concluded that Zebrowski could not show
prejudice as a result of the witnesses’ exclusion.
Second, Zebrowski cites Howard v. United States Bureau of Prisons to argue that the
hearing officer’s decision was arbitrary and capricious because he relied only on what the
reporting officer had written “without any supporting facts.” Objections [16] at 6–7 (citing 487
F.3d 808, 814 (10th Cir. 2007)). But unlike the petitioner in Howard, Zebrowski was given the
opportunity to present witnesses but chose not to do so. Rather, that case dealt with a
disciplinary hearing officer’s “unjustified refusal to produce and review” a videotape, which
amounted to a denial of due process. Howard, 487 F.3d at 814. Aside from being persuasive
authority, Howard is also not on point. Howard dealt with an administrative tribunal’s denial of
the plaintiff’s request to produce potentially exculpatory video evidence. Id. at 813–14. Here,
the hearing officer merely determined that Zebrowski waived his right to call a witness, not that
he was forbidden from doing so. While Zebrowski might be frustrated that the hearing officer
based his decision mainly on the written testimony of the reporting officer, that fact alone would
not place Zebrowski in a similar situation to the prisoner in Howard.

requirements are flexible and must be balanced against ‘legitimate penological interests.’”
Arceneaux v. Pearson, 449 F. App’x 396, 398 (5th Cir. 2011) (quoting Henson v. U.S. Bureau of
Prisons, 213 F.3d 897, 898 (5th Cir. 2000)).
2

IT IS, THEREFORE, ORDERED that the Report and Recommendation of United States
Magistrate Judge F. Keith Ball be, and the same is hereby, adopted as the finding of this Court,
and the same entire action should be dismissed without prejudice.
A separate judgment will be entered herein in accordance with the Order as required by
Rule 58 of the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED this the 5th day of March, 2013.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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