Wallace v. Ebbert

Filing 4

MEMORANDUM AND ORDER DISMISSING CASE: It is ORDERED that:1. Mr. Wallaces motion for leave to proceed in forma pauperis (Doc. 2) is GRANTED.2.The petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 (Doc. 1) is DENIED.3.The Clerk of Court shall CLOSE this case.Signed by Honorable A. Richard Caputo on 12/7/12. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ELLIOT WALLACE,
Petitioner
v.
WARDEN DAVID J. EBBERT,
Respondent

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CIVIL NO. 3:CV-12-2435
(Judge Caputo)

MEMORANDUM
I.

Introduction
Elliot Wallace, an inmate at USP-Canaan, in Waymart, Pennsylvania, filed a

pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on
November 30, 2012. Mr. Wallace claims the Federal Bureau of Prisons (BOP)
denied him due process in connection with a disciplinary proceeding. (Doc. 1, Pet.)
Mr. Wallace seeks to proceed in forma pauperis in this matter. (Doc. 2, Mot. to
Proceed In Forma Pauperis.)
For the reasons that follow, Mr. Wallace’s request for in forma pauperis status
will be granted, but under our authority to screen section 2241 petitions, we will
summarily dismiss the petition without requiring a response from the government.
See Rule 1(b) of the Rules governing petitions under 28 U.S.C. § 2254 (the section
2254 rules can be applied to section 2241 petitions). Rule 4 of the section 2254
rules authorizes a district court to conduct an initial screening of petitions and
summarily dismiss those that fail to state a claim or are factually frivolous. See
Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).

II.

Background
The petition and the exhibits supplied by Mr. Wallace allege the following.

On February 12, 2012, during a cell search, two small bags of an unknown liquid
substance were found in a laundry bag in the cell occupied by Mr. Wallace and
another inmate (Long). (Doc. 1-1 at ECF pp. 6-9.) The substance emitted a strong
smell of alcohol and was tested using Alco-Sensor III test. (Id.) The test resulted in
a positive reading of 0.072. (Id.)
On February 13, 2012, an incident report was delivered to Mr. Wallace
charging him with making, possessing, or using intoxicants, Code 113. (Id. at ECF
p. 6.) The Unit Discipline Committee (UDC) hearing was conducted the following
day. (Id. at ECF p. 3.) The hearing was suspending pending revision and
emendation to the charge. (Id.) The incident report was revised on February 26,
2012, and delivered to Mr. Wallace. (Id. at ECF p. 9.) The following day a UDC
hearing was held. (Id. at ECF p. 3.) The UDC referred the incident report to the
Disciplinary Hearing Officer (DHO) for final resolution.
A DHO disciplinary hearing was held on March 9, 2012. (Id. at ECF p. 1.)
Mr. Wallace requested, and received, representation by a staff representative, B.
Lafferty, Senior Officer Specialist. (Id.) Mr. Wallace requested to call his cellmate,
Mr. Long, as a witness. (Id. at ECF p. 2.) Mr. Long testified that he told the prison
staff that the alcohol was his. (Id.) He stated he too received an incident report this
incident. (Id.) At the hearing, the DHO considered that Mr. Wallace admitted to the
investigator that the alcohol was in his cell but that he denied ownership of it. (Id. at

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ECF p. 3.) In addition to the incident report and investigation, the DHO considered
the account of the event as reported by the prison staff reflected in the incident
report, the report of the officer who tested the liquid for alcohol as well as the 2
photographs depicting the bags of red liquid substance and the ALCO-SENSOR III
test reading of “0.72". (Id. at ECF p. 2.) After considering all the evidence, the DHO
based the guilty verdict on the greater weight of the evidence that the prohibited act
of Possession of any Narcotics, Marijuana, drugs, Alcohol, Intoxicants, or Related
Paraphernalia Not Prescribed for the Individual by the Medical Staff, Code 113, was
committed. (Id. at ECF p. 3.) The DHO reasoned that Mr. Wallace’s statement to
the investigator that he knew “it was in my cell, but I never took ownership” of it
indicated “he had awareness to the fact intoxicants were in his cell.” (Id.) The DHO
noted that:
All inmates are responsible for all items, contraband, or
property in their possession, dominion or that of which
the[y] exercise control. As the intoxicants were
discovered in an area of the cell to which WALLACE
exercised control, and also were tested in accordance
with agency procedure exceeding the minimum threshold
requirement for an intoxicant, the DHO will sustain the
charge.
(Id.) The DHO imposed the following sanctions: (1) Disciplinary Segregation (DS) 1
Day; (2) DS 359 Days, suspended 180 days; (3) Loss of telephone, visitation and
TRULINCS (email) privileges for 6 Months. (Id. at ECF p. 4.)

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III.

Discussion
Mr. Wallace fails to make a cognizable due process claim as the disciplinary

sanctions he received do not implicate any liberty interest that is protected by the
Due Process Clause. To invoke the Due Process Clause, Petitioner must first
identify a liberty interest that has been violated. Wilkinson v. Austin, 545 U.S. 209,
221, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174, 189 (2005). Prisoners are entitled to
due-process protection only when the disciplinary action results in the loss of goodconduct time or when a penalty “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515
U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995).
As a threshold matter, Mr. Wallace does not allege he lost any good-time
credits. The copy of the DHO’s Report (Doc. 1-1 at ECF pp. 1-4) confirms that he
did not lose any good-time conduct. His disciplinary infractions resulted only in a
temporary change in his security level (his placement in DS), and the temporary loss
of telephone, visitation, and TRULINC (email) privileges, none of which implicate a
protected liberty interest as they do not result in atypical or significant hardships in
relation to the ordinary incidents of prison life. See, e.g. Gray v. Holt, No. 1:11-CV1278, 2011 WL 4738118 (M.D. Pa. Oct. 6, 2011); Santos v. Bureau of Prisons, No.
1:05-cv-008, 2006 WL 709509, at *3 (M.D. Pa. Mar. 20, 2006)(citing Sandin, 515 at
484, 115 S.Ct. at 2300); Almahdi v. Bourque, 386 F. App’x 260 (3d Cir.
2010)(temporary loss of telephone privileges); Perry v. Lackawanna County
Children & Youth Services, 345 F. App’x 723, 726-27 (3d Cir. 2009)(temporary loss

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of visitation). These punishments cannot be challenged under § 2241 because they
do not affect Mr. Wallace’s good time credits, and thus they have no impact on the
fact or length of his sentence or confinement. See Leamer v. Fauver, 288 F.3d 532,
540-42 (3d Cir. 2002). To the extent that Mr. Wallace challenges the sanctions
imposed, the claim is not cognizable under § 2241. Accordingly, the instant Petition
will be dismissed.
An appropriate order will follow.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: December 7, 2012

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ELLIOT WALLACE,
Petitioner
v.
WARDEN DAVID J. EBBERT,
Respondent

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CIVIL NO. 3:CV-12-2435
(Judge Caputo)

ORDER
AND NOW, this 7th day of DECEMBER, 2012, in accordance with the
accompanying Memorandum, it is ORDERED that:
1.

Mr. Wallace’s motion for leave to proceed in forma
pauperis (Doc. 2) is GRANTED.

2.

The petition for writ of habeas corpus filed pursuant to 28
U.S.C. § 2241 (Doc. 1) is DENIED.

3.

The Clerk of Court shall CLOSE this case.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge