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Galab v. Hogsten

April 26, 2007

FAYSAL GALAB, PETITIONER
v.
KAREN HOGSTEN, RESPONDENT



The opinion of the court was delivered by: Judge McClure

MEMORANDUM

Background

This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 was initiated by Faysal Galab ("Petitioner") regarding a loss of good time credits which was imposed during his prior detention at the Allenwood Federal Correctional Institution, White Deer, Pennsylvania ("FCI-Allenwood").*fn1 Named as Respondent is FCI-Allenwood Warden Karen Hogsten.

Galab claims that he was denied due process during an FCI-Allenwood disciplinary proceeding. Specifically, Petitioner states that during October, 2005, he telephoned a family member from his FCI-Allenwood housing unit and asked the relative to "order copies of the Qur'an, the revealed text of Islam, to be sent to Petitioner in the institution." Record document no. 1, ¶ III (2). Galab indicates that in accordance with his beliefs, he intended to donate the copies to the FCI-Allenwood Chapel library so they could be used by prisoners who were unable to purchase their own copies. One of the books requested was an Albanian translation of the Qur'an. The publications were confiscated upon their arrival at the prison on November 1, 2005.

On November 3, 2005, Galab was issued a disciplinary report alleging that he violated Code 297, which prohibits inmate use of the telephone for abuses other than criminal activity. See Record document no. 9, Exhibit 1-B. The misconduct charge alleged that between October 10-28, 2005, Galab employed a telephone in his housing unit to order four (4) religious books, including a prohibited publication, The Noble Qur'an (the aforementioned Albanian translation), for distribution to other inmates without prior permission. A hearing on the charge was conducted by Disciplinary Hearing Officer ("DHO") Bittenbender on November 10, 2005. During the hearing, Petitioner acknowledged that he had employed a telephone to obtain the books without obtaining prior permission from the prison Chaplain. The DHO found Petitioner guilty of the charge on the grounds that the evidence, including Galab's own admission, established that he had used a telephone in his housing unit to "arrange the delivery of Muslim books, specifically The Noble Qur'an." Record document no. 9, Exhibit 1-E. Furthermore, The Noble Qur'an had been identified by the FCI-Allenwood Chaplain as being contraband. Galab was sanctioned to an eighty-seven (87) day loss of good time credit, thirty (30) days of disciplinary segregation, as well as an eighteen (18) month loss of visitation and telephone privileges.

Petitioner asserts that his actions did not rise to the level of a Code 297 violation. His petition notes that none of the books he requested, including the Albanian translation, had been restricted or otherwise considered to be contraband by the Bureau of Prisons ("BOP"). Moreover, even if the Albanian translation was deemed contraband, the FCI-Allenwood staff had not informed the inmate population of said designation or that inmates needed to obtain prior permission from the prison Chaplain in order to donate books to the chapel library. In addition, Galab asserts that the inmate population was never given notice of the charged offense, Code 297, a high security level telephone abuse violation. Furthermore, donating books without prior permission does not rise to the level of abuse required for a Code 297 violation. He concludes that his disciplinary proceedings also substantially burdened the exercise of his religious beliefs in violation of the First Amendment.

By Order dated January 22, 2007, the Respondent was directed to file a supplemental response which included the Table listings from BOP regulations for alternative disciplinary infractions referenced in the response. Based on the exhibits accompanying Respondent's supplemental response , the BOP has created different level offenses for telephone related abuse. See Record document no. 16. Specifically, Code 197 (greatest severity) is used for conduct involving use of the telephone to further criminal activity. Forfeiture of earned statutory good time or non-vested good conduct time (100%) are among the permissible sanctions for a Code 197 violation.

As noted earlier Code 297 (high severity) involves use of the telephone for abuses other than criminal activity. Examples listed for Code 297 conduct include talking in code, circumventing telephone monitoring procedures, use of another prisoner's PIN number, and using credit card numbers to place telephone calls. Available sanctions include forfeiture of earned statutory good time or non-vested good conduct time to a lesser extent (up to sixty (60) days) than that provided for Code 197 conduct.

Code 397 (moderate severity) likewise involves use of the telephone for abuses other than criminal activity. The listed samples of code 397 conduct include conference calling, three way calling, and providing false information for preparation of a telephone list. Forfeiture of up to thirty (30) days of statutory good time or non-vested good conduct time is a permissible sanction.

Code 497 (low moderate severity) also is for telephone abuse other than criminal activity. Examples of Code 497 offenses include exceeding the 15 minute time limit for telephone calls, using the telephone in an unauthorized area, and placing an unauthorized person on the telephone list. Loss of good conduct time credit (1-7days) is a permissible sanction for second or successive Code 497 offenses.

Also ripe for consideration is the Petitioner's motion seeking the issuance of sanctions against the Respondent under Federal Rule of Civil Procedure 11. See Record document no. 18. The Petitioner asserts that counsel for the Respondent should be sanctioned because the response contains a material misrepresentation, namely that The Noble Qur'an has been deemed to be contraband by the BOP. Discussion

It is well-settled that a habeas corpus petition may be brought by a prisoner who seeks to challenge either the fact or duration of his confinement in prison. Preiser v. Rodriguez, 411 U.S. 475 (1973), Telford v. Hepting, 980 F.2d 745, 748 (3d Cir.), cert. denied, 510 U.S. 920 (1993). Federal habeas corpus review is available only "where the deprivation of rights is such that it necessarily impacts the fact or length of detention." Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002).

The alleged unconstitutional due process violations by FCI-Allenwood officials occurred during the course of an institutional disciplinary proceeding. Since the internal disciplinary hearing resulted in the Petitioner's being sanctioned by the DHO to a loss of good time credits which extended the length of Galab's incarceration, his present due process claims are properly raised before this Court.

Respondent seeks dismissal of the petition on the grounds that Galab was afforded adequate due process, the DHO satisfied the required evidentiary standard, non-excessive sanctions were imposed, and the prisoner's claim that the disciplinary proceedings infringed his First Amendment rights is not properly asserted in a § 2241 petition.

First Amendment

Petitioner asserts in part that the Code 297 disciplinary charges constituted a violation of his First Amendment right to exercise his religious beliefs. This claim does not maintain that either the fact or duration of his confinement was adversely impacted by the violation of his First Amendment rights as contemplated under Preiser, Leamer, and Telford. Thus, said argument is not properly raised in a ยง 2241 federal habeas corpus petition. Accordingly, Galab's First Amendment claim will be dismissed without ...


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