Sharabi v. Recktenwald

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION for 18 Report and Recommendations. For the foregoing reasons, this Court ADOPTS the R&R in its entirety. The Petition is DENIED. Because Petitioner has not made a substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability. See Middleton v. Attorneys Gen., 396 F.3d 207, 209 (2d Cir. 2005) (per curiam). In addition, this Court declines to issue a certification pursuant to 28 U.S.C. § 1915(a)(3) because any appeal would not be taken in good faith, particularly in light of Petitioner's failure to object to the R&R. The Clerk of the Court is respectfully directed to close Docket Entry No. 2, to mail a copy of this Order to Petitioner, to note service on the docket, and to close the case. (Signed by Judge Valerie E. Caproni on 5/10/2017) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MOSHE DAVID SHARABI,
:
Petitioner, :
:
:
-against:
:
WARDEN MONICA RECKTENWALD,
:
Respondent. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 5/10/2017
15-CV-2466 (VEC)(HBP)
ORDER ADOPTING REPORT &
RECOMMENDATION

VALERIE CAPRONI, United States District Judge:
Moshe David Sharabi (“Petitioner”), a pro se prisoner, filed this habeas corpus petition
(“Petition”) pursuant to 28 U.S.C. § 2241 to challenge his loss of 27 days of good-conduct time
(“GCT”). Petitioner challenges the Bureau of Prisons’ (“BOP”) refusal to recognize self-defense
as a defense in during a BOP disciplinary proceeding for fighting.
The Undersigned referred this case to Magistrate Judge Henry B. Pitman. Order of
Reference to a Magistrate Judge, Dkt. 5. On November 7, 2016, Magistrate Judge Pitman issued
a Report and Recommendation (“R&R”) recommending that this Court dismiss the Petition
because the BOP’s refusal to recognize the defense of self-defense did not violate Petitioner’s
right to due process. R&R, Dkt. 18. No party filed any objections to the R&R. For the
following reasons, this Court ADOPTS the R&R in its entirety, and DENIES the Petition.
BACKGROUND
On June 6, 2014, Petitioner fought with another inmate. Declaration of Adam M.
Johnson (“Johnson Decl.”), Exhs. A, C, Dkt. 10. Petitioner was found guilty of Fighting with
Another Person, in violation of 28 C.F.R. § 541.3’s Prohibited Act Code 201 (“Code 201
violation”). Johnson Decl., Ex. C. As a result, Petitioner lost 27 days of GCT and was sentenced

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to 15 days of disciplinary segregation and three months of restricted commissary privileges.
Johnson Decl., Ex. C. After exhausting his administrative remedies, Petitioner filed this Petition,
alleging that the deprivation of 27 days of GCT was unlawful because he was not allowed to
assert self-defense during his prison disciplinary proceedings. Petition for Writ of Habeas
Corpus (“Pet.”) at 1, 5–6, Dkt. 2; see also Petitioner’s Reply to Respondent’s Return and
Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus (“Reply”) at 2, Dkt.
13.
In the R&R, Magistrate Judge Pitman recommended that this Court find that the Due
Process clause does not require self-defense to be recognized in prison disciplinary proceedings.
This Court agrees and adopts the R&R in its entirety.
DISCUSSION
In reviewing a report and recommendation, a district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When no objections are made to a magistrate judge’s report, a district
court may adopt the report unless “clear error on the face of the record” is present. Phillips v.
Reed Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013). Because no objections were filed in
this case, the Court reviews the R&R for clear error.
Submissions by pro se litigants are construed more leniently than submissions by lawyers
and are interpreted to raise the strongest arguments they suggest. Triestman v. Federal Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citing cases). This Court notes that although
Magistrate Judge Pitman did not explicitly state that he was construing Plaintiff’s submissions
liberally, the R&R reflects arguments presented in the Plaintiff’s submissions viewed in the light
most favorable to him.

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Petitioner argues that the BOP’s policy of refusing to recognize self-defense as a defense
to allegations of fighting is unconstitutional. Pet. at 6. Respondent argues that there is no
constitutional right to assert self-defense in the context of prison disciplinary proceedings.
Respondent’s Return and Memorandum of Law in Opposition to Petition for Writ of Habeas
Corpus (“Opp.”) at 7, Dkt. 9. Magistrate Judge Pitman agreed with Respondent.
This Court finds no clear error in Magistrate Judge Pitman’s conclusion that there is no
constitutional requirement that prison disciplinary proceedings recognize self-defense. Although
no court within the Second Circuit appears to have addressed this issue, courts that have
considered the issue have concluded that “prisoners do not have a fundamental right to selfdefense in disciplinary proceedings.” Rowe v. DeBruyn, 17 F.3d 1047, 1053 (7th Cir. 1994); see
also Williams v. Kort, 223 F. App’x 95, 100 (3d Cir. 2007); Romm v. Wilson, 1:12CV88
GBL/TCB, 2012 WL 6021325, at *5 (E.D. Va. Nov. 30, 2012), aff’d, 535 Fed. App’x 308 (4th
Cir. 2013). Although inmates are afforded some due process rights, “[p]rison disciplinary
proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant
in [a criminal prosecution] does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
There was no clear error in Magistrate Judge Pitman’s conclusion that the BOP’s refusal to
recognize self-defense in response to a fighting charge did not violate Petitioner’s right to due
process, particularly in circumstances where, as here, there was no use or threat of deadly force.
See R&R at 5–9.
In addition, to the extent that Petitioner intended also to challenge the sufficiency of the
evidence to support finding a Code 201 violation, see Pet. at 6, Reply at 3, there was more than
sufficient evidence to support the violation.1 The record shows that the finding was based on

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Because Magistrate Judge Pitman did not address an insufficiency-of-the-evidence claim in the R&R, this
Court reviews that claim de novo. See Charles v. Cty. of Nassau, 116 F. Supp. 3d 107, 121 (E.D.N.Y. 2015).

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Petitioner’s various admissions that he participated in the fight, including statements made in the
incident report. See Johnson Decl., Ex. B (“Incident Report”) § 24 (statement by Sharabi stating,
“I was only fighting back in self-defense”), § 25 (“Yes we had a fight but there is no problem
between us.”). Further, Petitioner admitted that the incident report was true. Johnson Decl., Ex.
C at III.B (“Inmate Sharabi stated that the incident report is true.”). Video surveillance showing
the incident also was available and considered by the prison officer. Johnson Decl., Ex. C at V.
CONCLUSION
For the foregoing reasons, this Court ADOPTS the R&R in its entirety. The Petition is
DENIED.
Because Petitioner has not made a substantial showing of the denial of a constitutional
right, the Court declines to issue a certificate of appealability. See Middleton v. Attorneys Gen.,
396 F.3d 207, 209 (2d Cir. 2005) (per curiam). In addition, this Court declines to issue a
certification pursuant to 28 U.S.C. § 1915(a)(3) because any appeal would not be taken in good
faith, particularly in light of Petitioner’s failure to object to the R&R.
The Clerk of the Court is respectfully directed to close Docket Entry No. 2, to mail a
copy of this Order to Petitioner, to note service on the docket, and to close the case.

SO ORDERED.
_________________________________
____________________________
_
VALERIE CAPRONI
ALERIE
United States District Judge

Date: May 10, 2017
New York, NY

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