Perotti v. Perdue

Filing 47

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION (DKT. NO. 42 ) AND GRANTING RESPONDENT'S MOTION TO DISMISS (DKT. NO. 16 AND DISMISSING CASE WITHOUT PREJUDICE. The Court adopts the 42 Supplemental Report and Recommendation in its ent irety; grants Respondent's 16 Motion to Dismiss Warden R. A. Perdue and Orders that this case be DISMISSED WITHOUT PREJUDICE. Further, the Clerk is directed to strike this case from the Court's docket and to enter a separate judgment ord er in this matter. Written notice of appeal must be received by the Clerk of this Court within 30 days from the date of the entry of the Judgment Order. Signed by District Judge Irene M. Keeley on 9/30/15. (Copy PS Petitioner via cert. mail)(mh) (Additional attachment(s) added on 9/30/2015: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOHN W. PEROTTI,
Petitioner,
v.

//

CIVIL ACTION NO. 1:14CV112
(Judge Keeley)

WARDEN R.A. PERDUE,
Respondent.
ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
Pending before the Court is the Supplemental Report and
Recommendation (“Supplemental R&R”) (dkt. no. 42) of the Honorable
Robert W. Trumble, United States Magistrate Judge, regarding a
Motion to Dismiss or for Summary Judgment filed by the defendant,
Warden R.A. Perdue (“Perdue”) (dkt. no. 16). Specifically, the
magistrate judge’s Supplemental R&R follows this Court’s July 6,
2015, Order Recommitting Case to Magistrate Judge for Limited
Purpose of Addressing Claim of Administrative Delay. (Dkt. No. 36).
I. BACKGROUND
Petitioner’s claims stem from a February 6, 2014, disciplinary
hearing at which the disciplinary hearing officer (“DHO”)at FCI
Fairton, New Jersey, determined that the petitioner, John W.
Perotti (“Perotti”), then an inmate at that facility, had assaulted
another inmate. As a consequence, the DHO revoked twenty-seven (27)
days of Perotti’s good conduct time (“GCT”).

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
On April 18, 2014, the Regional Director of the Bureau of
Prisons (“BOP”) remanded the incident for a rehearing because of
“questions concerning the disciplinary hearing record and the
documentary evidence used to support the charge.” (Dkt. No. 8-1 at
2). The Regional Director further advised Perotti that “[y]ou will
be notified of the date and time of any further proceedings.” Id.
Documentation submitted by Perdue in this proceeding has
established that, as of September 11, 2014, “the disciplinary
action

no

longer

appear[ed]

on

[Perotti’s]

Chronological

Disciplinary Record, [and] the 27 days of [GCT] were credited back
to him.” (Dkt. No. 17-1 at 2). After reinstatement of Perotti’s
twenty-seven (27) days of GCT, Perotti was transferred to FCI
Leavenworth, Kansas, where, on October 16, 2014, a rehearing on the
original incident took place. This rehearing occurred approximately
eight months after the initial hearing, and approximately ten
months after the incident. The Leavenworth DHO found Perotti guilty
of violating Code 224, Assaulting with Serious Injury, which
resulted in Perotti again losing twenty-seven (27) days of GCT.
(Dkt. No. 34 at 8).

2

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
Prior to the rehearing, Perotti filed a § 2241 petition on
July 3, 2014, claiming, among other things,1 that, if any rehearing
was to be held, it would violate his constitutional rights due to
delay. (Dkt. No. 8 at 5). At the time Perotti filed this petition,
he was no longer an inmate at FCI Fairton, having been moved to FCI
Gilmer, West Virginia.2 Gilmer’s Warden, Perdue, responded to the
petition by filing a Motion to Dismiss or, in the alternative,
Motion for Summary Judgment and Response. (Dkt. No. 16).
Although Perotti was advised of his right to file a reply, and
was granted two enlargements of time within which to do so, he
failed to file any reply. In his Report and Recommendation (the
“first R&R”) filed on March 10, 2015, Magistrate Judge Trumble
recommended

that

Perdue’s

motion

to

dismiss

be

granted,

and

Perotti’s petition be dismissed. (Dkt. No. 26). On May 11, 2015,
Perotti filed late objections to the first R&R. (Dkt. No. 34).
On July 6, 2015, this Court entered a Memorandum Opinion and
Order addressing Perotti’s objections. (Dkt. No. 36). However,

1

Perotti’s additional claims are well laid out in the
magistrate judge’s R&R (dkt. no. 26), which the Court adopted in
its July 6, 2015 order (dkt. no. 36).
2

As noted earlier, Perotti subsequently was transferred to
FCI Leavenworth, Kansas, where his rehearing was conducted.
Sometime after that, he was moved again, this time to FCI
Greenville, Illinois.
3

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
because the first R&R had not analyzed Perotti’s claim that the
delay between the original hearing and any future rehearing would
violate his constitutional rights, the Court recommitted the case
to Magistrate Judge Trumble for the limited purpose of determining
whether Perotti’s constitutional rights had been violated by any
delay in the administrative process. (Dkt. No. 36). With the
exception of this limited issue, the Court “concur[red] with all
the conclusions set forth in the [first] R&R . . . .” (Dkt. No.
36).
Magistrate

Judge

Trumble

set

a

briefing

schedule,

which

required Perdue to file a supplemental response by July 21, 2015,
and Perotti to file any reply by August 14, 2015.3 (Dkt. No. 37).
Perdue timely filed his response (dkt. no. 39), but, as of the
August 14 deadline, Perotti had not replied. Accordingly, the

3

On August 31, 2015, the Court received a letter from Perotti
claiming that he had never received the Government’s response to
the Supplemental R&R, despite the undisputed fact that Perotti had
received notice on July 15, 2015 that the Government was required
to file its response by July 21, 2015 and that his reply was due on
August 21, 2015.
On September 2, 2015, this Court directed the Clerk to forward
a copy of the Government’s response to Perotti and ordered Perotti
to file any reply by September 10, 2015. (Dkt. No. 44). Perotti
received Government’s response on September 8, 2010, but failed to
file a response or to request for extension. It should be noted
that the Court’s September 2, 2015 Order clearly noted that “[n]o
additional extensions would be granted.” (Dkt. No. 44).
4

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
magistrate judge filed his Supplemental R&R on August 21, 2015
(dkt. no. 42) without having heard from Perotti. It was not until
almost one (1) month later, September 18, 2015, that Perotti
finally filed a reply with this Court. (Dkt. No. 46).
II. THE MAGISTRATE JUDGE’S SUPPLEMENTAL REPORT AND RECOMMENDATION
The Supplemental R&R addressed the sole issue of whether delay
in the administrative process had violated Perotti’s constitutional
rights. It noted that prison disciplinary proceedings are not
equivalent to criminal proceedings and do not provide the same due
process

rights.

Moreover,

it

observed

that

the

only

time

requirement pertaining to prison disciplinary proceedings is that
the prisoner receive written notice of the charge levied against
him within 24 hours of the disciplinary hearing. Officials need not
adhere to any other time constraints in order to comport with
federal due process requirements. (Dkt. No. 42 at 3).
In addition, the Supplemental RR noted that BOP regulations
codified at 28 C.F.R. § 541.1-541.8 contain no time limitations
other than those related to 24 hour notice of the charge and of the
hearing. It further noted that, even if the regulations contained
a mandatory time limit within which to conduct the hearing, Perotti

5

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
would be required to show actual prejudice before being entitled to
relief.
Lastly, the Supplemental R&R determined that Perdue was not
the proper respondent because the rehearing, when held, occurred
at FCI Leavenworth. Perdue is the Warden at FCI Gilmer and thus not
the proper respondent to any challenge to the rehearing.
III. PEROTTI’S OBJECTIONS TO THE MAGISTRATE JUDGE’S SUPPLEMENTAL
REPORT AND RECOMMENDATION
In his objections, Perotti asserts that courts have frequently
found that delays in administrative hearings can amount to due
process violations. In support of this argument, he relies on a
decision by the West Virginia Supreme Court of Appeals in Tasker v.
Griffith, 238 S.E.2d 229 (W.Va. 1977), holding that administrative
segregation or geographical distance from witnesses and evidence
can give rise to due process violations. (Dkt. No. 46 at 4).
Perotti

also

disagrees

that

Perdue

is

not

the

proper

respondent. He contends that this Court maintains jurisdiction over
his claim because he filed his petition while incarcerated at FCI
Gilmer, and because the BOP transferred him for illegitimate
reasons; indeed, he contends that the BOP continues to transfer him
in an effort to intentionally interfere with his filings.

6

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
IV. STANDARD OF REVIEW
“The Court will review de novo any portions of the magistrate
judge's Report and Recommendation to which a specific objection is
made . . . and the Court may adopt, without explanation, any of the
magistrate judge's recommendations to which the prisoner does not
object.” Dellacirprete V Gutierrez, 479 F. Supp. 2d 600, 603-04
(N.D. W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th
Cir.1983)).
Here, Perotti’s late objections to those portions of the
magistrate judge's first R&R focused on the following claims: (1)
that his confinement in the Special Housing Unit (“SHU”) violated
the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq.;
and (2)that the delay between the date of the incident and the date
of

the

rehearing

violated

his

constitutional

rights.

As

to

Perotti’s objection that his confinement in the SHU violated the
APA, the Court fully addressed that issue in its July 6, 2015 Order
(dkt. no. 36), and found no violation of the APA.
Because Perotti objected to the magistrate judge’s findings in
the first R&R regarding his claim that the delay between the
incident and rehearing violated his due process rights, and because

7

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
he renewed that claim in his objection to the Supplemental R&R, the
Court reviews that issue de novo.
V. ANALYSIS
A.

Due Process Regarding Delay in Disciplinary Hearing

“An inmate has a liberty interest in good time credit and no
state may constitutionally deprive him of that good time credit
without due process of law.” Moses v. Bledsoe, 2004 WL 3317657, at
*2 (N.D.W.Va. 2004)(citing Wolff v. McDonnell, 418 U.S. 539, 555
(1974)). Significant delays in criminal proceedings can potentially
rise to the level of constitutional due process violations. See
United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir. 1984)
(“[U]ndue delay in processing an appeal may rise to the level of a
due process violation.”); see also United States v. Hood, 556 F.3d
226, 237-38 (4th Cir. 2009) (citing Johnson, 732 F.2d at 381-82).4

4

Although Johnson and Hood relate to delay in post conviction
appeals, the Johnson court set forth a four-factor test that
applies to a variety of delays. Indeed, the four factors
established in Johnson were culled from the Supreme Court opinion
in Baker v. Wingo, 47 U.S. 514 (1972), which dealt with a potential
due process violation of the sixth amendment right to a speedy
trial. See also United States v. Timms, 64 F.3d 436, 454, n. 17
(4th Cir. 2012) (noting that Johnson factors also could be applied
to determine whether delay in hearing on post-sentence civil
commitment constituted a due process violation).
8

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
Critically,
constitutional
imprisonment

and

although
due

necessarily

prisoners

process
makes

clause

have

not

lost

protections,

unavailable

many

all

“[l]awful

rights

and

privileges of the ordinary citizen.” Wolff, 418 U.S. at 555. Among
those rights and privileges lost by prisoners are some of the due
process rights guaranteed during criminal proceedings. Id. at 556
(“Prison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in such
[criminal] proceedings does not apply.”).
Indeed, in Wolff, the Supreme Court held that compliance with
due process in the context of prisoner disciplinary hearings only
requires prison officials to provide the following:
(1) written notice to the prisoner of his charges at
least twenty-four (24) hours prior to the disciplinary
hearing;
(2) “a written statement by the fact finders as to the
evidence relied on and reasons for the disciplinary
action;”
(3) the opportunity for the prisoner to call witnesses
and present documentary evidence in his defense when

9

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals;
(4) the opportunity for the prisoner to seek the aid of
a

fellow

inmate,

staff

member,

or

competent

inmate

designated by the staff, if the prisoner is illiterate,
or if the issue is sufficiently complex; and
(5) impartial fact finders.
Wolff, 418 U.S. at 564-71. Notably, the rights to confrontation and
cross examination are not guaranteed in disciplinary hearings. Id.
at 567-68.
Of critical importance to Perotti’s allegations here, no
further

time

requirements,

including

limitations

on

the

time

between incidents and hearings, are necessary to comply with due
process. See Kokoski v. Small, No. 5:07-0145, 2008 WL 3200811 at
*19 (S.D. W. Va. 2004) (“[T]he only time requirement under Wolff is
that the inmate receive written notice of the charge within 24
hours

of

a

disciplinary

hearing.

There

are

no

other

time

requirements necessary to comport with federal due process.”);
Moses, 2004 WL 3317657 at *7 (“Wolff holds that a hearing cannot be
held less than 24 hours but it does not state that a hearing must
be held within a certain number of days or months.”). So long as

10

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
prison officials have satisfied the requirements of due process,
Perotti is required to show actual prejudice to receive relief.
Moses, 2004 WL 3317657 at *4 (citing

Von Kahl v. Brennan, 855

F.Supp. 1413 (M.D.Pa. 1994)).
In his reply to the Supplemental R&R, Perotti cites a myriad
of cases for the proposition that hearing delay can constitute a
due process violation. (Dkt. No. 46 at 2). Unfortunately, none of
these cases deals with delays in prisoner disciplinary proceedings.
See C.I.R. v. Shapiro, 424 U.S. 614 (1976) (reviewing delay in
hearing on tax levies by Internal Revenue Service); North Georgia
Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) (reviewing
the lack of an early hearing when property has been garnished);
Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974) (reviewing the
lack of hearing on a writ of sequestration on encumbered property);
Fuentes

v.

Shevin,

407

U.S.

67

(1972)

(reviewing

the

constitutionality of a state replevin statute lacking a pre-seizure
hearing); Sniadach v. Family Finance Corp. of Bay View, 395 U.S.
337 (1969) (reviewing the constitutionality of garnishment action
without notice or prior hearing). Virtually all of the cases cited
by Perotti relate to property takings subject to due process

11

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
requirements; thus, they are inapposite to a prisoner due process
claim related to disciplinary hearings while incarcerated.
The one case on which Perotti relies that does address
prisoner disciplinary hearings is Vice v. Harvey, 458 F.Supp. 1031
(D.S.C. 1978). There, Vice received notice of a disciplinary
hearing on a charge of “disrespect to an officer” during

a

transfer from one prison to another. Id. at 1033-34. Vice was
immediately

placed

in

administrative

segregation

pending

his

hearing; he later refused to attend his hearing and consequently
lost six months of GCT.
Vice claimed that due process required Harvey to provide him
with a hearing prior to placing him in administrative segregation.
Id. at 1034. Not only does Vice not involve any issue of lengthy
delay between an incident and a disciplinary hearing, it clearly is
distinguishable from the instant situation where Perotti did have
the benefit of a hearing before losing his GCT.5 The result is that

5

Perotti also cites Gittens v. LaFevre, 891 F.2d 38 (2d Cir.
1989). Gittens not only is not binding on this Court, but also,
like Vice, the inmate there was placed in administrative
segregation prior to any hearing. Thus, Gittens and Vice do not
address the delay between the incidents and the hearings, but
rather the imposition of a sanction without the benefit of a
hearing in advance of such sanction. The only issue before this
Court is whether the sanction imposed after Perotti’s hearing, i.e.
the loss of twenty-seven (27) days of GCT, violated due process
12

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
Perotti has not legitimately refuted the principles in Wolff, nor
has he provided any justification for this Court to deviate from
that established precedent.
The Court need not address whether the hearing held at FCI
Fairton was in fact violative of Perottti’s due process rights
because that claim is moot. Although the factual record surrounding
the hearing is sparse and largely unavailable, in point of fact it
is undisputed that the BOP Regional Director agreed with Perotti
that the disciplinary hearing at FCI Fairton was deficient,6 (dkt.
no. 8-1 at 2), and consequently granted in part his appeal from the
disciplinary action and remanded the matter for rehearing. Id.
The BOP then struck the disciplinary action resulting from
that flawed hearing from Perotti’s Chronological Disciplinary
Record and restored his twenty-seven (27) days of lost GCT. (Dkt.
No.

17-1

at

2).

The

remand

by

the

Regional

Director

thus

because of the delay between the incident and the hearing. Finally,
the West Virginia Supreme Court of Appeals case on which Perotti
relies, Tasker v. Griffith, 238 S.E.2d 229 (W.Va. 1977), addressed
the four day segregation of an inmate without any evidence
warranting the segregation.
6

In granting Perotti’s rehearing, the BOP Regional Director
stated that “a review of [Perotti’s] appeal revealed questions
concerning the disciplinary hearing record and the documentary
evidence used to support the charge.” (Dkt. No. 8-1 at 2).
13

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
effectively rendered moot Perotti’s claim as to a deficient hearing
at FCI Fairton. See Rojas v. Driver, No. 5:06CV88, 2007 WL 2789471
* 3,(N.D. W.Va. 2007), aff’d, Rojas v. Driver, 267 F. App’x 302
(4th Cir. 2008) (per curiam)(a remand for a disciplinary rehearing
moots claims related to the first hearing)(internal citations
omitted); Stoley v. O’Brien, No. 7:07CV00507, 2008 WL 2852023 (W.D.
Va. 2008)(when a disciplinary action is given no effect, claims
related to the first hearing are moot).
B.

Proper Respondent for Petition Challenging Perotti’s
Rehearing

In its Order to recommit (dkt. no. 36), this Court noted that
“any

new

claims

alleging

procedural

defects

in

[Perotti’s]

rehearing are not properly raised in the first instance through
objections to the R&R.” (citing White v. Keller, No. 1:10CV841,
2013 WL 791008, at *4 (M.D.N.C. 2013) (“Nor does a petitioner fare
better by raising new claims in objections to a recommended
ruling.") (citations omitted)). Thus, issues surrounding any delay
in, or the procedures employed during, Perotti’s rehearing at FCI
Leavenworth may only be addressed in a new § 2241 petition.
Of

course,

as

Magistrate

Judge

Trumble

noted

in

his

Supplemental R&R, Perotti is “in the posture to contest the result
of that rehearing and demonstrate actual prejudice which resulted
14

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
from the delay between the alleged incident and the rehearing.”
(Dkt. No. 42). In his reply to the Supplemental R&R, Perotti
challenges the fairness of his rehearing. As that rehearing, and
any alleged due process violations, occurred at FCI Leavenworth,
Kansas, after Perotti left this District, he has no recourse for
those violations in this Court. Pursuant to 28 U.S.C. § 2241, a
petitioner may only seek a writ of habeas corpus in the district in
which he is in custody. See also

Rumsfeld v. Padilla, 542 U.S.

426, 434 (2004) (“The federal habeas statute straightforwardly
provides that the proper respondent to a habeas petition is ‘the
person who has custody over [the petitioner].’” (quoting 28 U.S.C.
§ 2242)).
Thus, despite the fact that his first disciplinary hearing
took place at FCI Fairton in New Jersey, Warden Perdue was the
proper respondent to the first § 2241 petition because Perotti was
then in custody at FCI Gilmer, situated in this District. When his
rehearing took place, he was in custody at FCI Leavenworth, Kansas.
He now is at FCI Greenville in Illinois, and therefore must seek
relief there.
VI. CONCLUSION

15

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
To sum up, because due process does not mandate that a
disciplinary hearing take place within any particular time frame
after an incident, Perotti’s claim that his due process rights were
violated by undue delay fails. Even assuming his due process rights
were violated due to administrative delay, Perotti’s claim still
fails because the remand and rehearing rendered any claims related
to the first hearing moot. Moreover, claims by Perotti relating to
any delay in or the procedures employed during his rehearing at FCI
Leavenworth are cognizable only through the filing of a new § 2241
petition. Finally, because any new § 2241 petition must be filed in
the judicial district where Perotti is currently incarcerated,
Warden R.A. Perdue is not the proper respondent to answer claims
related to that rehearing and must be dismissed from this action.
Therefore, for the reasons discussed, the Court:
1.

ADOPTS the Supplemental Report and Recommendation in its
entirety (dkt. no. 42);

2.

GRANTS Respondent’s Motion to Dismiss Warden R. A. Perdue
(dkt. no. 16);

3.

ORDERS that this case be DISMISSED WITHOUT PREJUDICE; and

4.

DIRECTS the Clerk to

STRIKE this case from its docket.

Should the petitioner desire to appeal from the decision of

16

PEROTTI V. PERDUE

1:14CV112

ORDER ADOPTING SUPPLEMENTAL REPORT AND RECOMMENDATION
[DKT. NO. 42], AND GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 16] AND DISMISSING CASE WITHOUT PREJUDICE
this Court, written notice of appeal must be received by the Clerk
of this Court within thirty (30) days from the date of the entry of
the Judgment Order, pursuant to Rule 4 of the Federal Rules of
Appellate Procedure.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.
Dated: September 30, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

17