United States District Court, M.D. Pennsylvania
November 8, 2005.
BERNARD S. LEVI, Petitioner
RONNIE HOLT, Warden, Respondent.
The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
MEMORANDUM AND ORDER
Before the court is a report and recommendation of the
magistrate judge to whom the captioned matter was referred. The
magistrate judge recommended that Petitioner's habeas corpus
petition filed pursuant to 28 U.S.C. § 2241 and his motions for a
preliminary injunction and a temporary restraining order be
denied. Petitioner has filed objections to the report and
recommendation (Doc. 22) and a motion for discovery (Doc. 21).
The parties have briefed the issues, and the matters are ripe for
With respect to Petitioner's motion for discovery, the court
finds that good cause does not exist to grant Petitioner's motion
for discovery. Thus, the court will deny Petitioner's motion.
Under Rule 6(a)of the rules governing 28 U.S.C. § 2254 "[a] party
shall be entitled to invoke the processes of discovery available
under the Federal Rules of Civil Procedure if, and to the extent
that, the judge in the exercise of his discretion and for good
cause shown grants leave to do so, but not otherwise."*fn1 Petitioner seeks discovery of all DHO decisions imposed by DHO
Officer Kevin Bittenbender. Petitioner's motion is based on his
assertion that the DHO is biased and finds inmates guilty in all
cases. However, as the magistrate judge correctly noted, in the
instant case the DHO complied with all due process requirements.
Based upon the evidence presented the DHO found Petitioner guilty
of the charged offense. The sanctions imposed upon Petitioner
were in conformity with the charged offense. Petitioner has not
shown good cause as to how the requested discovery would provide
any relevant information in the instant case. Petitioner also
seeks discovery of all the records in the files of SCI-Schuykhill
personnel that list Petitioner as a sex offender. The court fails
to see how Petitioner's request relates to his habeas petition
under § 2241. The court finds that Petitioner has failed to show
good cause as to why this request should be granted. Accordingly,
the court will deny Petitioner's request for discovery.
With respect to Petitioner's objections to the magistrate
judge's report and recommendation, the court finds that
Petitioner's objections are without merit. Petitioner raises all
but two of the same issues that he did before the magistrate
judge. The court will not revisit those issues already raised.
See United States v. Raddat, 447 U.S. 667, 676 (1980) (holding
that the court may, in the exercise of sound judicial discretion,
rely on the magistrate judge's proposed findings and
The first new issue Petitioner raises is with respect to
witnesses' testimonies. During his January 3, 2005 DHO hearing
Petitioner called Inmate Baseem Williams. Inmate Baseem
Williams's testimony indicated that he was unaware of what
Petitioner was doing during the relevant time frame. Petitioner
now seeks to introduce an affidavit from Inmate Jamar Williams dated
March 2, 2005, which purports that Petitioner did not engage in
the charged conduct. Petitioner asserts that the magistrate judge
erred by failing to consider the March 2, 2005 affidavit of Jamar
Williams. The court notes that the report and recommendation does
not address the March 2, 2005 affidavit.*fn2 Regardless, the
court finds that Inmate Jamar Williams's affidavit is untimely.
As stated in the report and recommendation, Petitioner was
afforded every opportunity within his due process rights to call
witnesses during his DHO hearing. Since there was no due process
violation during the DHO hearing, the court will not consider the
March 2, 2005 affidavit of Inmate Jamar Williams.
The second new issue relates to Petitioner's allegation that
Lieutenant Broe instructed Mrs. Feger to write the incident
report as a form of retaliation. Petitioner also asserts that if
Mrs. Feger were to testify she would admit that Lieutenant Broe
instructed her to make the report. While the magistrate judge did
not mention Lieutenant Broe in the report and recommendation, the
court finds Petitioner's argument unconvincing. Mrs. Feger
provided in her eyewitness rendition that Petitioner committed
the offense for which he was charged. Therefore, Mrs. Feger's
eyewitness rendition contradicts Petitioner's assertions.
Moreover, Petitioner fails to provide any evidence in support of
Finally, the court notes that the Supreme Court has stated that
[t]he fundamental fairness guaranteed by the Due
Process Clause does not require courts to set aside
decisions of prison administrators that have some
basis in fact. Revocation of good time credits is not
comparable to a criminal conviction, [Wolf v. McDonnell,
418 U.S. 539,] 556 [(1974)]  and neither the amount of
evidence necessary to support such a conviction, see
Jackson v. Virginia, 443 U.S. 307  (1979) nor any
other standard greater than some evidence applies in
Superintendent v. Hill, 472 U.S. 445
, 456 (1985). As stated, in
the instant case, Petitioner was afforded his due process rights
with respect to his DHO hearing. There exists, at the very least,
some evidence that supports the DHO finding, namely the
eyewitness rendition of Mrs. Feger. The court finds that the
sanctions imposed on Petitioner comport with the standard
articulated in Hill. Id.
Accordingly, IT IS HEREBY ORDERED THAT:
1) Petitioner's motion for discovery (Doc. 21) is DENIED.
2) The court adopts the report and recommendation (Doc 19) of
Magistrate Judge Blewitt.
3) Petitioner's motion for a preliminary injunction (Doc. 10)
4) Petitioner's motion for a temporary restraining order (Doc.
11) is DENIED.
5) Petitioner's petition for habeas corpus relief under
28 U.S.C. § 2241 (Doc. 1) is DENIED.
6) The Clerk of Court shall close the file.
7) The court declines to issue a certificate of appealability.
© 1992-2005 VersusLaw Inc.