United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND OVERRULING
FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE.
pro se petitioner, Kevin McWilliams
(“McWilliams”), a federal inmate incarcerated at
F.C.I. Gilmer in Glenville, West Virginia, filed a petition
for habeas corpus under 28 U.S.C. § 2241. ECF No. 1.
This Court entered an order to show cause why the petition
should not be granted. ECF No. 12. The respondent filed a
motion to dismiss the petition or, in the alternative, a
motion for summary judgment. ECF No. 17. Petitioner then
filed a response in opposition and memorandum. ECF No. 21.
The action was referred to United States Magistrate Judge
James P. Mazzone for initial review and report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule of Prisoner Litigation Procedure 2. The magistrate
judge filed a report and recommendation recommending that
respondent's motion be granted and the petitioner's
§ 2241 petition be dismissed with prejudice. ECF No. 26.
The magistrate judge informed the parties that if they
objected to any portion of the report and recommendation,
they were required to file specific written objections within
14 days after being served with copies of the report. The
petitioner filed objections. ECF No. 28.
petition, petitioner asserts that his administrative appeal
of a disciplinary hearing stemming from an altercation with
another inmate was denied in error. For relief, the
petitioner requests that this Court grant his petition, order
his infraction for Code 201 expunged and reinstate his 27
days of good conduct time. ECF No. 1 at 8.
States Magistrate Judge James P. Mazzone entered a report and
recommendation. ECF No. 26. On review, the magistrate judge
found that the petitioner was provided all the due process
required of disciplinary proceedings. Id. at 8.
First, the magistrate judge noted that the petitioner
received written notice of the charges against him in the
form of an incident report more than 24 hours before his
disciplinary hearing. Id. Second, the magistrate
judge noted that after the disciplinary hearing, petitioner
was provided with a report of what occurred during the
hearing, which included the evidence upon which the
Disciplinary Hearing Officer (“DHO”) had relied
and the reasons for petitioner's sanctions. Id.
at 9. Third, the magistrate judge noted that petitioner was
advised of his right to call witnesses and present
documentary evidence at the disciplinary hearing but declined
to present witnesses or documentary evidence. Id.
Fourth, the magistrate judge noted that the petitioner was
instructed of and asserted his right to a staff
representative during the hearing. Id. Finally, the
magistrate judge noted that petitioner was provided with an
impartial fact finder during his disciplinary hearings
because, in accordance with Bureau of Prisons
(“BOP”) regulations, the DHO was not a reporting
official, investigating officer, Unit Disciplinary Committee
(“UDC”) member or witness and did not play a role
in referring the charges. Id. The magistrate judge
further considered that although petitioner's chosen
staff representative reviewed the surveillance footage of the
incident and confirmed petitioner's description of the
events as they transpired, the DHO was not persuaded by
petitioner's argument that he acted in self-defense. For
these reasons, the magistrate judge determined that the
DHO's decision is supported by “some
evidence” and thus, the petitioner is not entitled to
the relief he seeks.
petitioner filed timely objections. ECF No. 28. In his
objections, petitioner enumerates three primary objections to
the magistrate judge's report and recommendation.
Although the objections are separated and numbered, all of
the petitioner's objections directly relate to his
previous argument that he was acting in self-defense.
Id. at 3. Specifically, the petitioner first claims
that the staff representative prohibited petitioner from
presenting a self-defense claim and that the staff
representative did not inform the DHO that the petitioner had
requested that DHO review surveillance footage of the
incident independently. Id. at 2-3. Next, petitioner
asserts that the magistrate judge failed to acknowledge the
petitioner's right to defend himself. Id. at
3-4. Lastly, the petitioner again asserts that the petitioner
only defended himself during the incident and only threw one
punch. Id. at 4.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be affirmed and
adopted in its entirety.
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 an objection is timely
made. Because the petitioner filed objections to the report
and recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which the petitioner objected. As to those findings to which
objections were not filed, all findings and recommendations
will be upheld unless they are “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A).
Court has conducted a de novo review of the portion
of the magistrate judge's report and recommendation
concerning the denial of petitioner's administrative
appeal. In this case, for substantially the reasons stated by
the magistrate judge, this Court finds that the DHO found
petitioner had committed the act of fighting with another
person, in violation of Prohibited Act Code § 201. As
the magistrate judge correctly stated, the results of a
prison disciplinary proceeding will be upheld so long as
there is “some evidence” to support the decision,
and there is adequate evidence in this case to support the
disciplinary sanctions against the petitioner.
petitioner's objections regarding the specifics of his
disciplinary hearing, on de novo review, this Court
finds that petitioner was provided all the due process
required of disciplinary proceedings. As stated by the
magistrate judge, petitioner received written notice of the
charges against him more than 24 hours before his
disciplinary hearing and was provided with a report of what
occurred during the hearing, which included the evidence upon
which the DHO had relied and the reasons for petitioner's
sanctions. Petitioner was also properly advised of his right
to call witnesses and present documentary evidence at the
disciplinary hearing but declined to present witnesses or
documentary evidence. Further, petitioner was instructed of
and asserted his right to a staff representative during the
hearing and was provided with an impartial fact finder during
his disciplinary hearing.
petitioner's assertion that the magistrate judge failed
to acknowledge the petitioner's right to defend himself,
this Court finds that the magistrate judge appropriately
considered petitioner's arguments with respect to this
issue. In the report and recommendation, the magistrate judge
specifically noted that “[t]he DHO considered
Petitioner's defense that he was trying to avoid the
fight and also considered the information provided by
Counselor Slinger, Petitioner's staff representative,
which indicated that he did initially try to avoid engaging
in the fight.” ECF No. 26 at 9. The magistrate judge
further noted that the DHO “acknowledged that the other
inmate was the aggressor but found that Petitioner still made
the decision to become a participant by striking him
back.” Id. ...