United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING
RESPONDENT'S MOTION TO DISMISS OR FOR SUMMARY
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se petitioner, a federal inmate housed at FCI
Gilmer, filed a petition for habeas corpus pursuant to 28
U.S.C. § 2241. ECF No. 1. The petitioner is currently
serving a 151-month sentence after pleading guilty to
possession with intent to distribute fifty grams or more of
cocaine base. ECF No. 16 at 2.
habeas petition arises out of a prison disciplinary
proceeding. During a search of the petitioner's cell, an
FCI Gilmer employee discovered a weapon taped underneath a
locker. ECF No. 11 at 4. At that time, the petitioner
received an incident report in which the FCI Gilmer employee
charged him with possession of a tool or weapon capable of
doing harm under Bureau of Prisons (“BOP”)
prohibited act code 108. ECF No. 11 at 4. However, following
a disciplinary hearing, the Disciplinary Hearing Officer
(“DHO”) issued a report concluding that the
petitioner had violated BOP prohibited act code 104,
possession of a dangerous weapon. ECF No. 1-1. The petitioner
contends that his right to due process was violated when the
DHO sanctioned the petitioner under a different prohibited
act than the one listed in the incident report provided to
the petitioner. ECF No. 1 at 5. Further, the petitioner
alleges that at the time of the search, his cell was
accessible to 130 inmates living in that unit, and that,
therefore, the DHO cannot rely on the concept of constructive
possession to conclude that the petitioner possessed the
weapon. ECF No. 1 at 6.
respondent, the Warden of FCI Gilmer, filed a motion to
dismiss, or, in the alternative, for summary judgment. ECF
No. 10. In the respondent's memorandum in support,
respondent argues that the petitioner fails to present a
cognizable habeas claim for four reasons: (1) the petitioner
received all due process protections available to an inmate
facing discipline; (2) the sanctions against the petitioner
were supported by adequate evidence; (3) a federal inmate has
no fundamental constitutional right to be free from false
prison disciplinary charges; and (4) to the extent the
petitioner challenges sanctions other than the loss of good
conduct time, those cannot be the basis of a habeas petition.
ECF No. 11 at 8-14.
petitioner then filed a response to the respondent's
motion to dismiss. ECF No. 14. In response, the petitioner
asserts that the DHO violated procedure by changing the
violation code, as well as alleging for the first time that
the petitioner never received a lock up order to place him in
the Special Housing Unit. ECF No. 14 at 2.
to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Prisoner
Litigation 2, this case was referred to United States
Magistrate Judge James E. Seibert. The magistrate judge then
entered a report and recommendation. ECF No. 16. In that
recommendation, the magistrate judge recommended that the
respondent's motion to dismiss be granted and the
petitioner's § 2241 petition be dismissed with
prejudice. ECF No. 16 at 11. The magistrate judge reviewed
the requirements of due process for a prisoner in a prison
disciplinary hearing and found that these requirements were
met. ECF No. 16 at 7-8. In particular, the magistrate judge
noted that under 28 C.F.R. § 541.8(a), an incident
report provided to a prisoner need only list the prohibited
act charged or a similar prohibited act. ECF No. 16 at 10.
Because the acts prohibited by codes 104 and 108 are similar,
and because the petitioner received the incident report which
detailed the underlying facts of the charge, the magistrate
judge found that the petitioner received adequate notice. ECF
No. 16 at 10-11. Thus, the magistrate judge recommended that
the respondent's motion be granted and the petition be
dismissed with prejudice. ECF No. 16 at 11.
magistrate judge advised the parties that, pursuant to 28
U.S.C. § 636(b)(1)(C), any party may file written
objections to his proposed findings and recommendations
within 14 days after being served a copy of the report and
recommendation. Neither party filed any objections to the
report and recommendation.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because the petitioner did not file any objections to the
report and recommendation, the magistrate judge's
findings and recommendations will be upheld unless they are
“clearly erroneous or contrary to law.” 28 U.S.C.
reviewing the parties' filings and the record, this Court
is not “left with the definite and firm conviction that
a mistake has been committed” by the magistrate judge.
United States v. Gypsum Co., 333 U.S. at 395. The
magistrate judge correctly held the pro se petition
to less stringent standards than those complaints drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520
(1972). Upon review, the magistrate judge examined the
standard of review and requirements of due process in a
prison disciplinary hearing. ECF No. 16 at 8. The magistrate
judge correctly found that the petitioner received adequate
notice because the DHO found that the petitioner had violated
a prohibited act similar to the act described in the incident
report. ECF No. 16 at 11.
prison disciplinary hearing that may result in a loss of good
time credit, due process requires that the prisoner receive
written notice of the charges. Wolf v. McDonnell,
418 U.S. 539, 540 (1974). At the disciplinary hearing, the
DHO may decide that “[the prisoner] committed the
prohibited act(s) charged, and/or similar prohibited act(s)
as described in the incident report.” 28 C.F.R. §
541.8(a)(1). Here, the written notice contained a description
of the conduct in question. ECF No. 1-1 at 3. The conduct
described in the incident report was similar to the
prohibited act that the DHO found the ...