WALLACE v. FEDERAL DETENTION CENTER et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/18/12. 12/19/12 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FEDERAL DETENTION CENTER, et al.,
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
December 18, 2012
Mark Wallace, a.k.a. Mark Green (Petitioner), is a
federal prisoner incarcerated at Federal Correctional
Institution Otisville in Otisville, NY.1 Petitioner filed a
§ 2241 Habeas Corpus Petition (§ 2241 Petition, ECF No. 1) based
on six claims that Federal Detention Center (FDC) Philadelphia
deprived him of a liberty interest without due process of law by
revoking some of his good-time credits without following Federal
Bureau of Prisons (BOP) procedures. He seeks to have his goodtime credits restored. For the reasons set forth below, the
Court will deny and dismiss with prejudice the § 2241 Petition.
All events that form the basis of Petitioner’s claims
occurred while he was incarcerated at FDC Philadelphia in
Philadelphia, PA, awaiting sentencing after being convicted of
federal conspiracy, aiding and abetting, and ID-theft crimes. He
was transferred to FCI Otisville on or about June 14th, 2012,
shortly after filing the § 2241 Petition. Notice of Change of
Address, June 20, 2012, ECF Nos. 8-9.
On February 5, 2011, Petitioner was involved in a
fight with several of his fellow inmates at FDC Philadelphia
involving the use of broken, sharpened broomsticks as weapons.
BOP officials investigated the circumstances surrounding the
fight and determined Petitioner was an active participant. He
was issued two incident reports, one stemming from the fight
itself and one from the aftermath. Together, the charges
included possession of a weapon, fighting, attempting to assault
any person, and refusing an order of a staff member.
According to the findings of the Discipline Hearing
Officer (DHO), video surveillance recorded Petitioner engage in
a verbal argument with another prisoner, which escalated into a
physical altercation. Resp’t’s Resp. Ex. A, at 2, ECF No. 10.
The two repeatedly struck each other with the broken
broomsticks; Petitioner stabbed the other prisoner in the eye
with a pen or pencil and received multiple lacerations himself.
Id. An intervening officer observed Petitioner disregard an
order to disengage and instead enter another prisoner’s cell,
where Petitioner twice attempted to stab the prisoner with his
broomstick. Id. Ex. B, at 1. Petitioner was ordered to drop his
weapon and lie down on the floor, but he refused this order. Id.
Petitioner admits that he was involved in the fight but claims
he only acted in self-defense. Pet’r’s Resp. ¶ 3, ECF No. 11;
Resp’t’s Resp. Ex. A, at 1; Id. Ex. B, at 4-5.
The BOP conducted an investigation that was completed
on April 6, 2011, about two months after the incident. Resp’t’s
Resp. Ex. A, at 1; Id. Ex. B, at 1, 4. During the length of the
investigation, Petitioner was placed in solitary confinement
within the prison’s Special Housing Unit (SHU). Pet’r’s Resp.
¶ 9. The BOP issued the two incident reports and provided
Petitioner with copies of the report the day the investigation
ended. Resp’t’s Resp. Ex. A, at 1; Id. Ex. B, at 1, 4. After two
hearings one week later, on April 13, 2011, the DHO determined
that Petitioner had committed the acts as charged and disallowed
107 days’ worth of good-time credits. Id. Ex. A, at 3; Id. Ex.
B, at 5.
After the DHO hearing and determination on April 13,
2011, Petitioner timely appealed to each of the FDC Philadelphia
warden, the Regional Director, and the Office of General Council
in Washington, D.C. Petitioner’s appeal was denied at each
level. § 2241 Pet. 4. Having properly exhausted his
administrative claims, he filed the instant § 2241 Petition on
March 8, 2012. § 2241 Pet. 3. The Court ordered the U.S.
Attorney’s Office for the Eastern District of Pennsylvania to
file a response, and it did, on June 29, 2012. Petitioner filed
a reply brief shortly thereafter.2 The Court has reviewed the
§ 2241 Petition, the Government’ Response, and the Petitioner’s
supplemental briefing. The matter is now ripe for disposition.
III. § 2241 PETITION
Two federal statutes, 28 U.S.C. §§ 2241 and 2255,
confer federal jurisdiction over habeas petitions filed by
federal inmates. Section 2255 only confers jurisdiction over
“challenges [to] the validity of the petitioner's sentence.”
Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012). Section
2241 “confers habeas jurisdiction to hear the petition of a
federal prisoner who is challenging not the validity but the
execution of his sentence.” Id. (emphasis added) (quoting
Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir.
2005). The execution of a federal prisoner's sentence includes
“such matters as the administration of parole, computation of a
prisoner's sentence by prison officials, prison disciplinary
actions, prison transfers, type of detention and prison
conditions.” Woodall, 432 F.3d at 241 (quoting Jiminian v. Nash,
245 F.3d 144, 147 (2d Cir. 2001)). A claim challenging the
deprivation of good-time credits is also properly brought under
Petitioner titled his reply “Defendant’s Response to
Motion to Dismiss.” Pet’r’s Resp. 1.
§ 2241. Campbell v. Holt, 432 F. App’x 49, 50 (3d Cir. 2011)
(per curiam); Barner v. Williamson, 233 F. App’x 197 (3d Cir.
2007) (per curiam).
Petitioner brings six due process arguments.3 He first
makes three claims that BOP officials violated their own
regulations. He also claims they retaliated against him for
filing a complaint against an officer by falsifying the incident
reports and unjustly holding him in solitary confinement.
Finally, he challenges the sufficiency of the evidence relied
upon at the hearings. Based on the Petitioner’s § 2241 Petition
and the evidence of record, the Court finds that Petitioner is
not entitled to relief.
In his § 2241 Petition, Petitioner lists three due
process claims: violations of 28 C.F.R. §§ 541.5(a) and
541.7(c), as well as a retaliation claim relating to the
incident reports. § 2241 Pet. 7-8. Petitioner adds three claims
in his reply to the Government: a violation of 28 C.F.R. §
541.8(h), retaliation relating to unlawful imprisonment in
solitary confinement, and a challenge to the sufficiency of the
evidence relied upon at the hearings. Pet’r’s Resp. 4-6.
Although “[i]t is improper for a party to present a new argument
in [a] reply brief,” United States v. Martin, 454 F. Supp. 2d
278, 281 (E.D. Pa. 2006) (Robreno, J.) (quoting United States v.
Medeiros, 710 F. Supp. 106, 109 (M.D. Pa. 1989)), because
Petitioner’s second set of arguments also stem from the general
Fourteenth Amendment claim listed in the § 2241 Petition, the
Court will nevertheless consider the claims raised in
Federal prisoners have a liberty interest in statutory
good-time credits and are entitled to an impartial hearing that
includes the opportunity to present evidence. Campbell, 432 F.
App’x at 51 (citing Vega v. United States, 493 F.3d 310, 317 n.4
(3d Cir. 2007)). The Supreme Court has set forth three factors,
known as the Wolff factors, that BOP officials must satisfy in
order to comply with procedural due process when holding
“Where a prison disciplinary hearing may result in the
loss of good time credits, . . . an inmate must
receive: (1) [at least 24 hours’] advance written
notice of the disciplinary charges; (2) an opportunity
. . . to call witnesses and present documentary
evidence in his defense; and (3) a written statement
by the factfinder of the evidence relied on and the
reasons for the disciplinary action.”
Superintendent v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff
v. McDonnell, 418 U.S. 539, 563–67 (1974). Also, the
disciplinary decision need only be supported by “some evidence,”
which is “any evidence in the record that could support the
conclusion reached by the disciplinary board.” Campbell, 432 F.
App’x at 51. Violations of BOP regulations do not also violate
due process unless they fail to comport with the Wolff factors
and they unduly prejudice a prisoner. See Wilson v. Ashcroft,
350 F.3d 377, 380-81 (3d Cir. 2003); Douglas v. Zickefoose, No.
11-406, 2012 WL 266364, at *10 (D.N.J. Jan. 27, 2012).
BOP Regulatory Violation Claims
Petitioner raises three grounds in support of his
claim that BOP officials failed to follow their own regulations
and thus violated his due process rights. All of the grounds are
First, Petitioner argues that BOP prison officials did
not present him with charges within 24 hours of the alleged
conduct in violation of 28 C.F.R. § 541.5(a), formerly codified
at 28 C.F.R. § 541.15(a). Specifically, § 541.5(a) states that a
prisoner is to “ordinarily receive incident report within 24
hours of staff becoming aware of [his] involvement in the
incident.” Petitioner claims that, because he was presented with
notice of the charges two months after the fight occurred, he
was deprived of due process.
This is incorrect for two reasons. First, unlike
mandatory regulations such as 28 C.F.R. § 541.7(d)(3), see Malik
v. Wilkerson, No. 93-5271, 1994 WL 61804 (E.D. Pa. Feb. 28,
1994), § 541.5(a) is not mandatory in the sense that BOP
officials must provide a copy of the incident report to a
prisoner within 24 hours of the commission of the conduct in
question. Instead, “ordinarily” is a discretionary term, and
“prison officials are given wide discretion to adopt and execute
their policies needed to maintain internal order.” Barner, 233
F. App’x at 199 n.5. Indeed, in its former iteration, the
regulation was accompanied by § 541.15(k), which permits BOP
officials to extend the time limit for good cause shown and
documented in the record. E.g., Ortiz v. Holt, 390 F. App’x 150,
152 (3d Cir. 2010). Here, BOP officials admitted to the delay in
producing the incident reports, attributing it in part to the
need for a lengthy investigation.4 Resp’t’s Resp. Ex. A, at 1-2;
Id. Ex. B, at 1, 5. The Court agrees that because the
hostilities involved several inmates, it necessitated a
lengthier period of time for investigation. See Barner, 233 F.
App’x at 199-200 (holding that a four-month-long investigation
and subsequent notice of charges were justified because the
investigation involved other inmates).
Second, Petitioner “has not shown that the regulation
specifying the time at which a person must be notified of the
charge either itself creates a liberty or property interest, or
that its violation necessarily abridges the constitutional
protections established in Wolff.” Id. at 199 n.5 (citing Sandin
v. Conner, 515 U.S. 472, 487 (1995)); see also Aponte v. Bureau
of Prisons, No. 10-140, 2012 WL 1865501, at *4 (W.D. Pa. May 22,
2012) (rejecting a prisoner’s attempt to “constitutionalize the
procedural provisions of the CFR regarding prison disciplinary
BOP officials also claim that there was a delay in
their becoming aware of the incident. This assertion does not
appear credible, given some of the officials actually witnessed
at least part of the incident.
proceedings,” wherein the prisoner “equat[ed] those procedures
required by the CFR with the procedures required by the United
States Constitution”). Petitioner cannot demonstrate that BOP
officials failed to comply with Wolff or that he suffered
prejudice as a result of this delay. To the contrary, Petitioner
received copies of the incident reports well over 24 hours in
advance of the two hearings, which met the Wolff notice
requirement and provided him adequate preparation time. See
Barner, 233 F. App’x at 199-200. Moreover, Petitioner himself
“indicated the delay [in providing him with the report] has not
adversely affected [his] ability to defend [him]self.” Resp’t’s
Resp. Ex. A, at 1-2; Id. Ex. B, at 1, 5. Thus, because the Wolff
standard was met and he was not prejudiced by the alleged delay,
this claim fails.
Petitioner also claims that BOP officials violated 28
C.F.R. § 541.7(c), formerly codified at 28 C.F.R. § 541.15(b),
by not conducting a hearing within three days of the alleged
conduct. § 541.7(c) requires that an initial hearing before a
Unit Disciplinary Committee (UDC) ordinarily be held within
“five work days after [the incident report] is issued.”5
Petitioner relies on § 541.15(b), which gives a threeday, nonmandatory deadline to hold a hearing from the date of
the incident. But in its current iteration, § 541.7(c), the
requirement is extended to five days from the date the report is
issued. Because the hearings in question were held seven days
Petitioner argues that, because he did not receive a hearing
within three working days after the incident, his due process
rights were violated.
This delay argument fails for the same reasons as
those mentioned above: the BOP officials’ failure to follow the
regulatory timetable cannot rise to the level of a due process
violation under Wolff because Petitioner received at least 24
hours’ notice of the hearings and was not prejudiced by the
delay. See Aponte, 2012 WL 1865501, at *4 (holding that a
violation of the hearing time requirement “does not
automatically equate to a violation of  Due Process rights”)
(quoting Donaldson v. Samuels, No. 4–07–1072, 2007 WL 3493654,
at *5 (M.D. Pa. Nov. 13, 2007)). Again, Petitioner conceded that
“the delay [did] not adversely affect [his] ability to defend
[him]self and [he] acknowledged [he] w[as] ready to proceed with
the hearing.” Resp’t’s Resp. Ex. A, at 1-2; Id. Ex. B, at 1, 5.
Finally, Petitioner claims BOP officials violated 28
C.F.R. § 541.8(h), previously codified at 28 C.F.R. § 541.17(g),
by failing to provide to him action copies of the DHO’s posthearing report within 24 hours of making a determination.6 Even
after notice was provided to Petitioner, the difference is
Section 541.8(h), unlike its predecessor, does not
impose a time requirement for when a copy must be provided to a
prisoner after a hearing.
assuming that the BOP officials failed to submit action copies
of their determination to Petitioner, he must still demonstrate
that the failure to provide him with copies prejudiced him. Cook
v. Warden, Fort Dix Corr. Inst., 241 F. App’x 828, 829 (3d Cir.
2007) (per curiam); Corley v. Hogsten, No. 11-97, 2011 WL
3809939, at *3 (E.D. Ky. Aug. 25, 2011). Here, he cannot
demonstrate prejudice. On the contrary, he experienced no
difficulty in properly exhausting his administrative appeals—the
appeals are timely, and he effectively presented his due process
arguments at each of the BOP’s administrative levels and,
ultimately, before the Court.
In short, the Court finds that Petitioner’s attempts
to constitutionalize these BOP regulations and to demonstrate
prejudice fall short, and the claims must fail.
Sufficiency of the Evidence and Retaliation Claims
Petitioner challenges the sufficiency of the evidence
presented at his hearings. He argues that the DHO refused to
consider a written statement declaring his innocence, an
exculpatory videotape, and a witness who would have testified
that he acted in self-defense, and that these refusals tainted
the impartiality of the hearings. Pet’r’s Resp. 5-6. However,
the evidence demonstrates that he did not request witnesses and
waived the right to a staff representative. Resp’t’s Resp. Ex.
A, at 1; Id. Ex. B, at 4. What is more, for its findings, the
DHO relied on videotaped evidence of the fight and eyewitness
testimony showing Petitioner actively participated in the
physical altercation, ignored cease-and-desist orders, and
attempted to stab another inmate twice. Id. Ex. A, at 2; Id. Ex.
B, at 5. Even assuming the existence of Petitioner’s potentially
helpful evidence, it does not “nullify the conclusion that the
DHO decision was supported by ‘some evidence’ and that the
requirements of due process were satisfied.” Campbell, 432 F.
App'x at 51.
Petitioner also argues that BOP officials falsified
the incident reports in retaliation for a complaint he filed
against one of them. Assuming that Petitioner’s allegations are
true and that BOP officials’ actions were motivated by a desire
to retaliate, this claim fails because, here, the decision to
deny good-time credits was supported by the videotape of the
incident and the testimony of a credible witness. Under these
circumstances, as Wolff’s low evidentiary standard (“some
evidence”) is satisfied, the DHO’s independent findings
“essentially checkmate [a] retaliation claim.” McGee v. Scism,
463 F. App’x 61, 63 (3d Cir. 2005) (per curiam) (quoting
Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994)).7
Additionally, Plaintiff claims retaliation in that BOP
officials, as further punishment for filing the above-mentioned
complaint against one of their own, delayed completing the
investigation so as to extend his time in solitary confinement.
For the foregoing reasons, the Court will deny and
dismiss Petitioner’s § 2241 Petition.
Because this claim does not relate to the loss of good-time
credits, and because “the simple or garden variety transfer to
administrative segregation . . . fall[s] short of implicating
how a sentence is being ‘executed,’” it is not appropriate for a
§ 2241 Petition. McGee, 463 F. App’x at 63 (citing Woodall, 432
F.3d at 243). Such a claim must be brought, if at all, under the
aegis of 42 U.S.C. § 1983.
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