Stevens v. Bledsoe
MEMORANDUM AND ORDER: 1) The petition for writ of habeas corpus (Doc. 1) is DENIED.2) The Clerk of Court is directed to CLOSE this case.Signed by Honorable Sylvia H. Rambo on 04/13/11. (ma, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID EDWARD STEVENS,
CIVIL NO. 1:CV-11-0024
Presently before the court is a petition for writ of habeas corpus (Doc. 1)
pursuant to 28 U.S.C. § 2241, filed by Petitioner David Edward Stevens (“Stevens”),
an inmate confined at the United States Penitentiary in Lewisburg, Pennsylvania
(“USP-Lewisburg”). Stevens alleges that his constitutional rights were violated in the
context of a disciplinary proceeding. For the reasons that follow, the petition will be
At all times relevant to this petition, Stevens was confined at the United States
Penitentiary at Big Sandy (“USP-Big Sandy”) in Inez, Kentucky. On April 22, 2009,
at approximately 2:30 p.m., while Senior Officer Blankenship was performing a twohour restraint check of Stevens, Stevens kicked him with his left foot, striking Officer
Blankenship’s right outer thigh. (Doc. 6-1 at 35.) As Officer Blankenship and other
staff members exited the cell, Stevens spit towards staff, hitting Officer Blankenship
on his right arm. (Id.) Officer Blankenship stated that Lieutenant Snyder was aware
of the incident, and that a medical assessment was performed. (Id.)
As a result of this incident, an investigation was conducted, beginning at 12:30
a.m. on April 23, 2009, and concluding at 12:46 a.m. (Id. at 35.) Further, Stevens
was issued an incident report charging him with Assaulting Any Person in violation of
Section 224 of the Bureau of Prisons’ (“BOP”) disciplinary code. (Id.) The incident
report was delivered to Stevens at 12:30 a.m. on April 23, 2009. (Id.) The
investigating officer, Lieutenant J. Gilman, advised Stevens of his rights at that time.
(Id.) The officer noted that Stevens “began cursing and yelling upon my entry of his
cell. I read the incident report to him as well as his rights. The entire time, Stevens
was stating, ‘fuck you, you racist mother fucker.’” (Id. at 36.) After completing his
investigation, Lieutenant Gilman referred the incident report to the Unit Disciplinary
Committee (“UDC”) for further action. (Id.)
On April 27, 2009, the UDC held a hearing to review the incident report. (Id. at
35.) Stevens “refused” to attend the UDC hearing. (Id. at 35, 42.) After reviewing
the matter, the UDC referred it to the Disciplinary Hearing Officer (“DHO”) for
further hearing. (Id. at 35.) Stevens was advised of the DHO hearing and advised of
his rights at that hearing. (Id. at 40-41.) He was given copies of “Inmate Rights at
Discipline Hearing” and the “Notice of Discipline Hearing Before the DHO.” (Id. at
39-41.) Stevens refused to sign the form acknowledging that he had been advised of
his rights. (Id. at 40-41.)
On May 1, 2009, the DHO held a hearing. (See id. at 32-34.) Prior to the
hearing, Stevens was advised of his right to appear before the DHO but waived that
right. (Id. at 32, 38.) In addition, he waived his right to a staff representative and did
not request witnesses on his behalf. (Id. at 32.) The DHO conducted the hearing in
Stevens’ absence, and relied on the available evidence, namely, the injury assessment
form for Officer Blankenship and the incident report containing Officer Blankenship’s
witness statement. (Id. at 32-33.) In his decision dated September 18, 2009, finding
that Stevens had committed the act as charged, the DHO stated,
Your due process rights were read and reviewed with you by the DHO at
the time of the hearing. You stated you understood your rights, had no
documentary evidence to present, and requested no witnesses. You
further indicated you do not wish to have a staff representative.
You waived your appearance before the DHO and the hearing was
continued in your absence. Hence, the DHO can only determine that you
had no interest in offering any evidence to refute the charge. The DHO
gave greater weight of evidence to statement of the reporting staff, who
has a duty and obligation to report the truth and submit accurate
(Id. at 33.) Stevens was sanctioned with disallowance of 27 days of good conduct
time, 45 days of disciplinary segregation, and a disciplinary transfer was
recommended. (Id.) The decision was delivered to Stevens on October 27, 2009. (Id.
At the time of the filing of Respondent’s answer to the instant petition, Stevens
had filed thirty-two (32) requests for administrative remedies since entering the BOP.
(See Doc. 6-1 at 13-30.) None of these requests pertain to the incident report or DHO
hearing and decision at issue in this petition. (See id.)
The BOP disciplinary process is fully outlined in the Code of Federal
Regulations, Title 28, Sections 541.10 through 541.23. These regulations dictate the
manner in which disciplinary action may be taken should a prisoner violate, or attempt
to violate, institutional rules. The first step requires filing an incident report and
conducting an investigation pursuant to 28 C.F.R. § 541.14. Staff is required to
conduct the investigation promptly absent intervening circumstances beyond the
control of the investigator. 28 C.F.R. § 541.14(b).
Following the investigation, the matter is then referred to the UDC for a hearing
pursuant to 28 C.F.R. § 541.15. If the UDC finds that a prisoner has committed a
prohibited act, it may impose minor sanctions. If the alleged violation is serious and
warrants consideration for more than minor sanctions, or involves a prohibited act
listed in the greatest or high category offenses, the UDC refers the matter to a DHO
for a hearing. 28 C.F.R. § 541.15. Because Stevens was charged with Assaulting Any
Person, an offense in the high severity category, the matter was referred for a
High category offenses carry a possible sanction of loss of good conduct time
credits, inter alia. 28 C.F.R. § 541.13. When a prison disciplinary hearing may result
in the loss of good conduct time credits, due process requires that the prisoner receive
(1) written notice of the claimed violation at least twenty-four (24) hours in advance
of the hearing, (2) an opportunity to call witnesses and present documentary evidence
in his or her defense when doing so would not be unduly hazardous to institutional
safety or correctional goals, and (3) a written statement by the factfinder as to
evidence relied on and reasons for the disciplinary action. See Wolff v. McDonnell,
418 U.S. 539, 564-66 (1974).
Further, despite the absence of a statutory exhaustion requirement attached to §
2241, courts have consistently required a petitioner to exhaust administrative remedies
prior to bringing habeas claims under § 2241. Speight v. Minor, 245 F. App’x 213,
215 (3d Cir. 2007); Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Moscato v.
Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). Exhaustion promotes a
number of goals: “(1) allowing the appropriate agency to develop a factual record and
apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief
requested conserves judicial resources; and (3) providing agencies the opportunity to
correct their own errors fosters administrative autonomy.” Moscato, 98 F.3d at 76162 (citing Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981)). Courts,
however, have excused exhaustion when it would not promote these goals. See, e.g.,
Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998) (Roth, J., concurring)
(exhaustion excused upon petitioner demonstrating futility); Lyons v. United States
Marshals, 840 F.2d 202, 205 (3d Cir. 1988) (exhaustion excused when agency actions
clearly and unambiguously violate statutory or constitutional rights).
In order for a federal prisoner to exhaust his administrative remedies, he must
comply with the prison grievance process set forth in the Code of Federal Regulations.
See 28 C.F.R. § 542.10-.23; Lindsay v. Williamson, No. 1:CV-07-0808, 2007 WL
2155544, at *2 (M.D. Pa. July 26, 2007). An inmate first must informally present his
complaint to staff, and staff shall attempt to informally resolve any issue before an
inmate files a request for administrative relief. 28 C.F.R. § 542.13(a). If unsuccessful
at informal resolution, the inmate may raise his complaint with the warden of the
institution where he is confined. Id. at § 542.14(a). If dissatisfied with the response,
he may then appeal an adverse decision to the Regional Office and the Central Office
of the BOP. Id. at §§ 542.15(a) and 542.18. No administrative appeal is considered
finally exhausted until a decision is reached on the merits by the BOP’s Central
Office. See Sharpe v. Costello, No. 08-1811, 2008 WL 2736782, at *3 (3d Cir. July
In the response to the instant habeas petition, Respondent claims that the
petition should be dismissed because Stevens failed to complete the BOP’s
administrative appeals process prior to filing in this court. However, because the
court concludes that the instant petition is without merit, it need not determine
whether to excuse Stevens’ failure to exhaust.
Sufficiency of the Evidence
Stevens contests the sufficiency of the evidence relied upon in finding him
guilty of the Code 224 violation. (Doc. 1 at 4-6.) The DHO’s decision is required to
be supported by some evidence in the record. See Superintendent v. Hill, 472 U.S.
445, 454 (1985); see also Young v. Kann, 926 F.2d 1396, 1402-03 (3d Cir. 1991)
(applying Hill standard to federal prisoner due process challenges to prison
disciplinary proceedings). The standard is met if there was a modicum of evidence
from which the conclusion of the tribunal could be deduced. See Hill, 472 U.S. at
455. Determining whether this standard is met does not require examination of the
entire record, independent assessment of witness credibility, or weighing of the
evidence; the relevant question is whether there is evidence in the record that supports
the DHO’s conclusion. See id.
In the instant case, Stevens alleges that the DHO did not consider evidence,
statements, camera footage, or witnesses in making his decision. (Doc. 1 at 4.)
However, the record belies this assertion. Notably, Stevens waived his right to attend
the DHO hearing, present witnesses, and have staff representation. Therefore, the
DHO had only the evidence presented at the hearing: Officer Blankenship’s witness
statement and the injury assessment report. In light of that evidence, the court finds
that there was “some evidence” to support the DHO’s decision. The statement of
Officer Blankenship and the injury assessment report, both of which provided an
account of the assault, confirm that the DHO acted with a sound evidentiary basis.
Hill, 472 U.S. at 455-56. Thus, the petition will be denied with respect to Stevens’
claim that there was insufficient evidence to support the DHO’s decision.
Investigation and Notice and Record
Stevens also contends that BOP officials failed to conduct an investigation in
violation of BOP policy, which, as a result, led to a “frivolous” incident report being
considered as evidence at the DHO hearing. (Doc. 1 at 4-6.) As set forth above,
following the issuance of the incident report, a prompt investigation must be
undertaken. 28 C.F.R. § 541.14(b). However, absent a showing of prejudice, a
technical violation of BOP regulations does not automatically require that a
disciplinary sanction must be vacated and remanded. Von Kahl v. Brennan, 855 F.
Supp. 1413, 1421 (M.D. Pa. 1994) (finding that in a federal inmate disciplinary
proceeding “where the minimal requirements of due process have been met, an inmate
must show prejudice to the rights sought to be protected by the regulation claimed to
be violated” in order to obtain habeas relief).
The record reflects that a BOP official, Lieutenant Gilman, conducted an
investigation on April 23, 2009, the evening of the incident. (Doc. 6-1 at 36.) In his
incident report, the investigator indicated that he reviewed Officer Blankenship’s
statement and injury assessment report, attempted to interview Stevens but he “began
cursing and yelling upon my entry of his cell. I read the incident report to him as well
as his rights. The entire time, Stevens was stating, ‘fuck you, you racist mother
fucker.’” (Id.) Further, the investigator delivered his incident report to Stevens that
same day, putting Stevens on notice of the charges filed against him. (Id. at 35.)
Since the record shows that an investigation was conducted by a BOP official in
a prompt manner, and Stevens was timely delivered the incident report, Stevens has
clearly failed to establish that he was prejudiced by a violation of BOP regulations
such as failure to conduct an investigation. Thus, the petition will be denied with
respect to Stevens’ claim that BOP officials failed to conduct a full and prompt
investigation and failed to inform him of such.
Furthermore, to the extent that Stevens claims that the DHO failed to make a
record of the disciplinary hearing in violation of Stevens’ right to due process, that
claim fails. Pursuant to the BOP’s regulations,
The Discipline Hearing Officer shall prepare a record of the proceedings
which need not be verbatim. This record must be sufficient to document the
advisement of inmate rights, the DHO’s findings, the DHO’s decision and
the specific evidence relied on by the DHO, and must include a brief
statement of the reasons for the sanctions imposed. The evidence relied
upon, the decision, and the reasons for the actions taken must be set out in
specific terms unless doing so would jeopardize institutional security. The
DHO shall give the inmate a written copy of the decisions and disposition,
ordinarily within 10 days of the DHO’s decision.
28 C.F.R. § 541.17(g). In the instant case, the DHO report served as the record of the
disciplinary proceeding. That DHO report was delivered to Stevens on October 27,
2009.1 Thus, even though Stevens was not present for the DHO hearing, notably, a
choice he made, his due process rights were not violated. The petition will be denied
with respect to Stevens’ claim that the DHO failed to make a record of the disciplinary
Stevens also claims he was denied his right to call witnesses at the DHO
hearing. (Doc. 1 at 4-6.) This claim is without merit. At no stage in the process did
Stevens request that witnesses be called on his behalf. (Doc. 6-1 at 32-36.) Further,
prior to the hearing, he was advised of his rights with regard to staff representation
and witness testimony and indicated that he understood. (Id. at 32.) Moreover, the
DHO is not required to call witnesses. “The DHO need not call repetitive witnesses.
The reporting officer and other adverse witnesses need not be called if their
knowledge of the incident is adequately summarized in the Incident Report and other
28 C.F.R. § 541.17(g) does not require that a written copy of the DHO decision be
delivered to the inmate within 10 days of the decision. Rather, the regulation calls for a decision to
“ordinarily” be delivered within that time frame. Nevertheless, the record reflects that Stevens did
receive a written copy of the decision within 30 days of the date of the decision. (Doc. 6-1 at 34.)
investigative materials supplied to the DHO.” 28 C.F.R. § 541.17(c). Thus, because
Stevens chose not to call any witnesses, and the DHO was not required to call
witnesses, the court cannot find that the lack of witnesses at the DHO hearing resulted
in a violation of Stevens’ due process rights. The petition will be denied with respect
to Stevens’ claim that he was denied his right to call witnesses.
Representation at DHO Hearing
Stevens also claims that he should have been afforded the assistance of a fellow
inmate or staff representative at the DHO hearing. This claim is without merit. A
prisoner does not have a general constitutional right to have a staff representative
appear on his behalf in a disciplinary proceedings. See Hudson v. Hedgepeth, 92 F.3d
748, 751 (8th Cir. 1996). See also Bermudez v. Holt, No. 1:09-CV-0741, 2010 WL
55713, at *5 (M.D. Pa. Jan. 4, 2010). Rather, due process requires that inmates be
provided with assistance only where the inmate is illiterate or “the complexity of the
issue makes it unlikely that the inmate will be able to collect and present the evidence
necessary for an adequate comprehension of the case.” Wolff, 418 U.S. at 570.
Stevens makes no allegation that he is illiterate, and the issues involved in the case
were not complex. Therefore, the petition will be denied with respect to Stevens’
claim that he was denied assistance at the DHO hearing.
Stevens also challenges the severity of the sanctions imposed by the DHO.
(Doc. 1 at 4-6.) The sanctions that may be imposed upon a finding of guilt of a high
category offense include, inter alia, forfeiting earned statutory good time, up to 30
days of disciplinary segregation, and recommendation of a disciplinary transfer. 28
C.F.R. § 541.13. Here, the court recognizes that the DHO sanctioned Stevens to 45
days of disciplinary segregation rather than an amount of 30 days or less. However,
the DHO noted in his reasoning for imposing such sanctions the following:
The behavior on your part . . . threatens the health, safety and welfare of
not only the staff involved, but that of all other inmates and staff.
Inmates observing the assault may become involved thus creating a larger
disturbance for staff to control. Assaults make it difficult to provide
security for all concerned. The sanctions . . . were imposed by the DHO
to punish your behavior and to encourage you to abide by the institution
rules in the future. Additionally, I recommend a disciplinary transfer
because, although the assault was a lesser assault, the DHO believes your
violence toward staff is not over and your continued presence on this
compound would precipitate further violence.
(Doc. 6-1 at 33.) Given Stevens’ history of violence towards staff members, see
Stevens v. Bledsoe, Civ. No. 1:11-CV-00130 (Jan. 19, 2011); Stevens v. Bledsoe, Civ.
No. 1:10-CV-02646 (Dec. 28, 2010); Stevens v. Bledsoe, Civ. No. 1:10-CV-02595
(Dec. 21, 2010), the DHO’s reasons for imposing such sanctions are justified. In light
of the well-settled standard that prison authorities are generally given wide discretion
in determining matters of security, see Rhodes v. Chapman, 452 U.S. 337, 349 n.14
(1981) (“[A] prison’s internal security is peculiarly a matter normally left to the
discretion of prison administrators.”), the court finds that Stevens is not entitled to
relief on this ground.
Moreover, these penalties (forfeiture of good conduct time, disciplinary
segregation, and recommendation of disciplinary transfer) plainly fall “within the
expected perimeters of the sentence imposed by a court of law,” and do not “[impose]
atypical and significant hardship on [petitioner] in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 484, 485 (1995). Therefore, Stevens’
argument is without merit.
For the above stated reasons, the petition for writ of habeas corpus will be
denied. An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: April 13, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID EDWARD STEVENS,
CIVIL NO. 1:CV-11-0024
In accordance with the accompanying memorandum, IT IS HEREBY
1) The petition for writ of habeas corpus (Doc. 1) is DENIED.
2) The Clerk of Court is directed to CLOSE this case.
s/Sylvia H. Rambo
United States District Judge
Dated: April 13, 2011.
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