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SINDE v. GERLINSKI

March 26, 2003

JOHN SINDE, PETITIONER
v.
SUSAN GERLINSKI, WARDEN, LSCI-ALLENWOOD, RESPONDENT.



The opinion of the court was delivered by: Malachy E. Mannion, United States Magistrate Judge.

MEMORANDUM AND ORDER

I. BACKGROUND

On June 17, 2002, the petitioner, an inmate at the Low Security Correctional Institution at Allenwood, ("Allenwood"), White Deer, Pennsylvania, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges the process provided to him at a Disciplinary Hearing Officer, ("DHO"), hearing, as well as the sufficiency of the evidence relied upon by the DHO to find him guilty. The petitioner further complains that he did not receive a hearing every thirty days while he was in segregation, and that, after his release from segregation and before the DHO hearing, his phone calls were unjustly limited to one call per week. The petitioner is seeking expungement of the institutional incident report and restoration of privileges and good conduct time credits lost as a result of the action taken against him by the DHO. (Doc. No. 1).

On July 17, 2002, a show cause order was issued. (Doc. No. 7). A response to the show cause order, along with supporting exhibits, were filed by the respondent on August 5, 2002. (Doc. Nos. 9 & 10).

By way of background, the documents submitted by the parties indicate that on February 13, 2001, the petitioner was interviewed by the Federal Bureau of Investigations, ("FBI"), which was conducting an investigation into telephone calls made from a black Nokia pre-paid cellular telephone found hidden inside a tractor, during a search of an equipment barn at Allenwood. During the investigation, the telephone numbers dialed from the Nokia cellphone were cross-referenced with the list of inmate approved telephone numbers kept at Allenwood.

In performing this cross-reference, it was determined that one of the telephone numbers called from the Nokia cellphone was on the petitioner's "approved list." Further investigation revealed that the telephone number was only on petitioner's approved list. In other words, no other inmate had this telephone number on his approved list. In addition, the investigation revealed that two other inmates were interviewed concerning use of the cellphone. Both of those inmates admitted to authorities that all three men (including petitioner) had used the cellphone. (Doc. No. 10, p. 11).

On the same day, February 13, 2001, an incident report was written accusing the petitioner of "Use of Telephone for Abuses Other Than Criminal Activity," in violation of Bureau of Prisons, ("BOP"), Code 297, and for "Conduct Which Disrupts or Interferes With the Security of the Facility," in violation of BOP Code 399. (Doc. No. 10, p. 5). BOP staff did not serve the incident report upon the petitioner at that time as it deferred the administrative investigation of the incident pending a criminal investigation by the FBI. (Doc. No. 10, p. 6). On November 8, 2001, the FBI, having concluded the investigation (and apparently declined criminal prosecution), referred the matter back to the institution for administrative action. (Doc. No. 10, p. 6). The following day, November 9, 2001, a copy of the incident report was served upon the petitioner. (Doc. No. 10, p. 5).

The Unit Discipline Committee's, ("UDC"), hearing on the matter was delayed because the UDC requested additional documents from the investigating lieutenant. After acquiring the additional documents, on November 29, 2001, the investigating lieutenant returned the matter to the UDC. (Doc. No. 10, p. 6). On December 4, 2001, the petitioner received a memo from the respondent, Warden Gerlinski, which advised the plaintiff that the delay in holding his hearing was due to the incident being referred to the FBI for possible prosecution and the request for additional information. (Id.). In compliance with Program Statement 5270.07*fn1, the warden at FPC-Allenwood granted an extension of time for the UDC hearing. (Id.).

A UDC hearing, on the charges, was held on December 5, 2001. The charges, however, were then referred to the DHO for disposition, because of their seriousness. (Doc. No. 10, p. 5). On the same day, the petitioner received notice of the DHO hearing. (Doc. No. 10, p. 7). On this form notice, the petitioner requested that Mr. Steimling, a General Foreman, represent him at his hearing before the DHO. In addition, he requested that a fellow inmate testify as a witness on his behalf. (Id.). This form notice was signed by the petitioner on December 5, 2001. (Id.). On the same day, the petitioner received, signed and dated an "Inmate Rights at Disciplinary Hearing" form which advised him of his rights at the DHO hearing. (Doc. No. 10, p. 8).

On December 18, 2001, the DHO hearing was held. (Doc. No. 10, p. 9). The petitioner was present at the hearing, along with his staff representative, Mr. Steimling, and his inmate witness. Both Mr. Steimling and the inmate testified on the petitioner's behalf. (Doc. No. 10, pp. 9-10). After considering the evidence presented at the hearing, including the incident and investigation reports, photocopies of pictures of the tractor and cellphone, and the testimony of the petitioner and his witnesses, the DHO determined that the petitioner had violated Code 297, "Use of Telephone for Abuses Other Than Criminal Activity." (Doc. No. 10, pp. 10-11).

The petitioner was sanctioned twenty-seven days good time conduct; twenty-one days of disciplinary segregation, (which was suspended pending 180 days of clear conduct); and, one year loss of telephone privileges. (Doc. No. 10, p. 11). On December 21, 2001, the petitioner received a copy of the written report of the DHO, the evidence relied upon and the reasons for the disciplinary sanctions administered. (Doc. No. 10, p. 12).

II. DISCUSSION

"(A federal) court, . . . will raise . . . subject matter jurisdiction on its own motion." Morel v. INS, 144 F.3d 248, 251 (3d Cir. 1998). Hence, this court has an obligation to raise questions of jurisdiction even when not disputed by the parties. In the instant case, the petitioner filed a "Consent to Jurisdiction by United States Magistrate Judge" on June 8, 2002. The consent was docketed on June 24, 2002. The respondent also submitted a consent which was docketed on July 23, 2002. As a result of these consents, the district court entered an "order of ...


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