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Phillips v. Tucker

United States District Court, S.D. West Virginia, Bluefield

April 24, 2018

MICHAEL ANTHONY PHILLIPS, Petitioner,
v.
SHERIFF RANDALL TUCKER[1], Madison County Detention Center, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley United States Magistrate Judge.

         Pending before the court is the petitioner's Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, which was filed on April 20, 2015. (ECF No. 1). The petitioner has paid the $5.00 filing fee. (ECF No. 4). This matter is assigned to the Honorable David A. Faber, Senior United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).

         PROCEDURAL HISTORY AND THE PETITIONER'S PRESENT CLAIM

         The petitioner is a federal inmate who, at the time he filed the instant petition, was incarcerated at the Federal Correctional Institution, McDowell, in Welch, West Virginia. The petition challenges an institutional disciplinary action taken against him at FCI Miami in 2014, for possession of contraband consisting of a cellular phone. Following a hearing before a Disciplinary Hearing Officer (“DHO”), the petitioner was found guilty of the charge and sanctioned with the disallowance of 40 days of good conduct time (“GCT”), 60 days of disciplinary segregation, and one year loss of telephone privileges. The instant petition asserts both substantive and procedural due process violations resulting from these disciplinary proceedings.

         On April 8, 2016, the undersigned issued an Order to Show Cause, directing the respondent to file a response to the petitioner's section 2241 petition. (ECF No. 7). The respondent, by counsel, filed a response to the petition on April 29, 2016. (ECF No. 10). On May 6, 2016, the petitioner filed a Reply. (ECF No. 11). This matter is ripe for adjudication.

         ANALYSIS

         The respondent's Response addresses the Bureau of Prisons' (“BOP”) rules for inmate discipline, which are found in 28 C.F.R. Part 541 et seq. According to these rules, where a staff member believes an inmate has violated a BOP regulation, the staff member prepares an incident report and provides the inmate with a written copy of the charges against him, normally within 24 hours of when staff becomes aware of the alleged violation. See 28 C.F.R. § 541.5(a). Thereafter, an investigating officer is assigned to inform the inmate of the charges and take a statement from the inmate. An inmate is advised that he has a right to remain silent, but that an adverse inference may be drawn from his silence, which may, alone, be used to support a finding that he committed the prohibited act. Id., § 541.5(b).

         Next, a Unit Disciplinary Committee (“UDC”) will review the incident report, usually within five days of its issuance. The inmate is permitted to appear and make a statement and present documentary evidence before the UDC either in person or electronically, except during the UDC's deliberations, or if institutional security would be jeopardized by his presence. Id., §§ 541.7(c), (d), and (e). The UDC then makes a decision based upon at least some evidence, and if there is conflicting evidence, based upon the greater weight thereof. Id., § 541.7(e).

         The UDC may determine whether or not the inmate committed the prohibited act as charged, or refer the case to a Disciplinary Hearing Officer (“DHO”) for further proceedings. Id., § 541.7(a)(1)-(H). When charges are referred to the DHO, the UDC advises the inmate of the rights afforded to him at the DHO hearing. Id., § 541.7(g). An inmate may request to have a staff representative and/or witnesses at the DHO hearing. Id., § 541.8. At the hearing, the inmate may make a statement, present documentary evidence, and present witnesses on his behalf, subject to institutional security issues. Id., § 541.8(f).

         The DHO considers all evidence presented at the hearing and determines whether or not the inmate committed the infraction, or whether further investigation is needed. Id., § 541.8(a). The DHO prepares a record of the proceedings, which need not be verbatim. The record documents the advisement of the inmate's rights, the DHO's decision, the evidence relief upon in making the decision, and the reasons for the sanctions imposed. Id., § 541.8(h).

         According to the respondent's Response, on May 25, 2014, while housed at FCI Miami, a correctional officer completed Incident Report No. 2587050, charging the petitioner with a violation of prohibited act code 108, Possession of a Cell Phone, after the correctional officer found the device in the petitioner's underwear during a search. (ECF No. 10, Ex. 1, Attach. A, § 11). The petitioner received a copy of the incident report on May 26, 2014 at 7:15 a.m. (Id., §§ 15, 16). The Lieutenant tasked with conducting an investigation into the incident advised the petitioner of his rights that same day. (Id., §§ 23, 24). The petitioner responded, “I have no comment.” (Id., § 24).

         A UDC hearing was held on May 28, 2014. (ECF No. 10, Ex. 1, Attach. A, § 21). Again, the petitioner told the UDC that he had “no comments.” (Id., § 17). The incident report was forwarded to a DHO for further proceedings. (Id., §§ 18, 19).

         The petitioner was provided with a Notice of Disciplinary Hearing Before the DHO on May 28, 2014. (ECF No. 10, Ex. 1, Attach. B). The petitioner did not request a staff representative or that any witnesses be made available for the hearing. (Id.) The petitioner was also provided with a form advising him of his rights at the DHO hearing. (ECF No. 10, Ex. 1, Attach. C).

         A DHO hearing was held on May 29, 2014. (ECF No. 10, Ex. 1, Attach. D). At the hearing, the petitioner was advised of his rights, and he acknowledged that he understood those rights. The petitioner admitted the accuracy of the incident report, stating, “I had it. I bought it for $1, 400.00.” (Id. at Part III, ยง B, and Part V). However, the DHO's Report, drafted after the hearing, mistakenly indicated that the petitioner ...


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