United States District Court, N.D. West Virginia
ANTHONY E. ZELLNER, Petitioner,
FREDERICK ENTZEL, JR., Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
day, the above-styled matter came before the Court for
consideration of the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Robert W. Trumble. ECF No. 28. Pursuant to this Court's
Local Rules, this action was referred to Magistrate Judge
Trumble for submission of a proposed R&R. Magistrate
Judge Trumble issued his R&R on May 1, 2018. In the
R&R, he recommends that the Petitioner's § 2241
petition [ECF No. 1] be denied and dismissed with prejudice.
Standard of Review
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Failure to file timely objections constitutes a waiver of
de novo review and of a Petitioner's right to
appeal this Court's Order. 28.U.S.C..'.636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of the Petitioner being served with
a copy of the same. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). The R&R was mailed to the Petitioner by certified
mail on May 1, 2018. ECF No. 28. The Petitioner accepted
service on May 7, 2018. ECF No. 19. The Petitioner filed
objections on May 24, 2018. ECF No. 30. Accordingly, the
Court will review the portions of the R&R to which the
Petitioner objects de novo.
§ 2241 petition, the Petitioner alleges that prison
staff retaliated against him by placing a sharpened
instrument in his locker following a complaint of staff
misconduct. ECF No. 1 at 5-6. The Petitioner further asserts
that his constitutional rights were violated during and prior
to the disciplinary proceedings that resulted. Id.
at 9. Petitioner asserts that his due process rights were
violated and requests that the Court restore the 40 days of
Good Conduct Time which was taken as a result of the
disciplinary action. Id.
results of a prison disciplinary proceeding will be upheld so
long as there is “some evidentiary basis” to
support the decision. Superintendent v. Hill, 472
U.S. 445, 455 (1985). Determining whether this standard is
satisfied “does not require examination of the entire
record, independent assessment of the credibility of
witnesses, or weighing of the evidence.” Id.
at 455-56. Rather, “the relevant question is whether
there is any evidence in the record that could support the
conclusion reached.” Id.
case, Magistrate Judge Trumble accurately found that there is
at least some evidentiary basis to support the Disciplinary
Hearing Officer's (“DHO”) findings. The DHO
found the Petitioner guilty of possession, manufacture, or
introduction of a sharped instrument, in violation of
Prohibited Acts Code § 104. The DHO officer lists the
following reasons for his finding: (1) the Petitioner did not
deny the item was found in his locker; (2) the reporting
officer stated in his incident report that a random search
revealed the sharpened instrument hidden under various
clothing; and (3) the staff member who located the item and
prepared the incident report was not the same staff person
about whom the Petitioner previously complained. Accordingly,
on the whole, the DHO's decision was supported by some
Petitioner's first objection is to Magistrate Judge
Trumble's Factual and Procedural History, specifically
the section addressing his underlying conviction and
sentence. ECF No. 30. However, his underlying conviction and
sentence has no bearing on the validity of the claim before
the Court. Accordingly, this objection is without merit and
the Petitioner alleges that the incident report stated that
the searching officer found a “homemade”
sharpened instrument. Petitioner argues that this is
factually impossible because he could not have “made
the alleged sharpened instrument at home, when he had been
incarcerated for 16 years already.” ECF No. 30 at 3.
However, the term “homemade” likely refers to the
fact that the sharpened object was not purchased at a store
and, rather, was made by the individual-whether in his home
or jail cell. Accordingly, this objection is without merit
and is OVERRULED.
Petitioner further argues that the term “sharpened
instrument” is unconstitutionally vague. For example,
he questions whether possession of a pencil or pen would be a
violation of the Prohibited Acts Code. ECF No. 30 at 4.
However, the term “sharpened instrument” is
commonly used and relatively precise. A person of average
intelligence should be able to determine what conduct is
prohibited and conform his conduct ...