Lane v. Feathers

Filing 14

Opinion and Order. For the reasons identified, the Petition for Writ of Habeas Corpus 2 is denied. Signed on 3/27/2013 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARK ALAN LANE,
Case No. 3:12-cv-02360-PA
Petitioner,
v.
FEATHERS, Warden, FCI Sheridan,
OPINION AND ORDER
Respondent.
Mark Alan Lane
06503-028
Federal Correctional Institution
P.O. Box 5000
Sheridan, OR 97378
Petitioner, Pro Se
S. Amanda Marshall
United States Attorney
Natalie Wight, Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
1 - OPINION AND ORDER

..

·

PANNER, District Judge.
Petitioner brings
U.S.C.

§

( "GCT")
2008.

this

habeas

corpus

case

pursuant

to

28

2241 challenging the loss of 27-days of Good Conduct Time
following a prison disciplinary hearing on December 23,

For the reasons that follow, the Petition for Writ of Habeas

Corpus (#2) is denied.
BACKGROUND

Petitioner

was

previously

Penitentiary in Atlanta,

housed

at

the

United

States

Georgia, where he was given an incident

report for violation of Bureau of Prisons
"Threatening Another with Bodily Harm."

("BOP")

Code 203 for

According to the Incident

Report, the charge was based upon an incident report authored by
Case Management Coordinator M.L. Mowrey:
On December 16, 2008, at 10:20 a.m., I opened
an electronic mail message forwarded from
Central Office regarding an Administrative
Remedy Appeal filed by Mark Alan Lane, #0650302 8.
The attachment received included the
Central Office Administrative Remedy Appeal
form, and two handwritten notes from Lane. It
reads
"I
don't
think
my
judgment
and
commitment was 'verified' I'm going to be my
Life!
Are you willing to bet a Guards Life?"
This communication relays intent to inflict
physical or other harm on any occasion.
Declaration of James Moran, p. 3.
The Disciplinary Hearings Officer ("DHO") conducted a hearing
and found petitioner guilty of the charged offense.

As a result,

the DHO ordered petitioner to forfeit 27 days of GCT,

2 - OPINION AND ORDER

imposed 30

days

of

disciplinary

segregation,

telephone privileges for 180 days.

and

took

away

petitioner's

Id at 4.

Petitioner filed this habeas corpus action on December 28,
2012 alleging that the DHO violated his right to due process by
finding him guilty of the charged offense in the absence of any
evidence.
DISCUSSION

According to petitioner, the DHO convicted him of the charged
offense in violation of his right to substantive due process. 1

In

Superintendent v. Hill, 472 U.S. 445 (1985), the Supreme Court held

that due process during a prison disciplinary hearing requires that
"some evidence" exist to support the findings made during such a
hearing.

Id at 455.

Petitioner will prevail if the record in this

case is "so devoid of evidence that the findings of the . .
were without support or otherwise arbitrary."

[DHO]

Id at 457.

The DHO filled out report in the wake of petitioner's hearing
in

which

he

provided

the

specific

evidence

he

relied

upon

to

support his findings:
The reporting officer stated that on 12-16-08
she opened an email forwarded from the central
office in which they attached an informal
resolution
from
you.
In
the
informal
resolution you wrote "I am willing to bet my
life. Are you willing to bet a guard's life?"

The Petition does not allege a violation of petitioner's
right to procedural due process.
3 - OPINION AND ORDER

You denied that this statement was a threat.
You stated you were trying to let "themn know
that you were serious about what you were
doing.
Although you stated this was not a
threat, you could present no reason or excuse
for using this particular language.
When
asked by the DHO why you chose this statement,
you merely stated that you wanted "themn to
know you were serious.
It is apparent you made this statement in an
attempt to get someone's attention.
This
statement was perceived as a serious threat of
harm to staff.
The [D]HO gave greater weight
to the reporting officer's account of the
incident, the hand written statement by you,
and your confirmation that you wrote the
statement.
Moran Declaration, Att. 5, p. 2.
Petitioner argues that the record is insufficient to support
a conviction for Threatening Another with Bodily Injury pursuant to
Code 203 because:

(1) the email containing the offending language

does not constitute proof that Mowrey witnessed a communication to
another "personn;

(2) the email simply asked a question, and thus

cannot constitute a threat; and (3) a Code 203 violation requires
that a threat of bodily harm be made to a specific person.
According to the DHO,
Disciplinary
required.n

Code

203,

a

"[f] or an inmate to be charged with
specifically

Moran Declaration, p. 3.

named

victim

is

not

"An agency's interpretation

of the meaning of its own regulations is entitled to deference
unless plainly erroneous

or

inconsistent with the

regulation."

National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S.

644, 672 (2007).

Consequently, petitioner's arguments that he did

4 - OPINION AND ORDER

not direct his threat toward a particular person such that he is
innocent of any wrongdoing is unavailing.

Moreover, petitioner's

contention that a question cannot constitute a threat amounts to a
frivolous argument.
It is clear from the record that there was at least "some
evidence" to support the DHO's finding of guilt in petitioner's
prison disciplinary hearing.

Accordingly, relief on the Petition

is denied.
CONCLUSION

For the reasons identified above,

the Petition for Writ of

Habeas Corpus (#2) is denied.
IT IS SO ORDERED.
DATED this

JL1

day

Owen M. Panner
United States District Judge

5 - OPINION AND ORDER