The opinion of the court was delivered by: Judge Conner
Presently before the court is a petition for writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2241 filed by petitioner, Lester Butcher ("Butcher"), an inmate confined at the United States Penitentiary at Canaan, Waymart, Pennsylvania. Butcher contends that his due process rights were violated in the context of a disciplinary hearing. For the reasons discussed below, the petition will be denied.
On October 14, 2005, an incident report was delivered to Butcher charging him with "Interfering with staff in performance of duties (high severity) and Most like Assaulting any person (minor assault)." (Doc. 2, p. 12). The incident was described by Corrections Officer Cindy A. Skelton ("reporting officer") as follows:
On 10-13-05 at approximately 2:00 p.m., after completing a search of cell 224L A-1 unit, I walked out of the cell carrying confiscated items. Inmate Lester Butcher, # 03969-078, approached me and asked what I had. When I told him I was confiscating his head phones he said "no, those are mine" he then grabbed my hand and took the head phones from me. I then ordered him to return the head phones to me. He complied. I then notified the Operations Lieutenants. Inmate Butcher was medically assessed and no injuries were noted. I was medically assessed and had no injuries.
Id. Butcher was provided with a copy of the incident report on October 14, 2005. He was later notified that the matter was referred to the disciplinary hearing officer ("DHO") for further hearing. He indicated that he wished to have the assistance of a staff member representative, requested that two inmate witnesses be allowed to appear on his behalf, asked the reporting officer be present, and sought review of the surveillance video tape of the incident. (Doc. 2, p. 13).
The disciplinary hearing was held on October 27, 2005. (Doc. 2, p. 14). After being advised of his rights, and indicating that he understood them, Butcher made the following statement:
I never grabbed her hand. I was at the microwave while she was searching my cell. When she was finished, she came over to where I was and asked if I liked tattoos. I thought that maybe she found something to do tattoos with or something like that. I told her I don't do tattoos and asked her if she found something in my room. She said she took some headphones that were altered. I told her that my headphones were not altered, at this point she opened the bag to show me the headphones. I reached into the bag to show her the headphones were not altered and then I put them back in the bag and told her I wanted a confiscation form. I later asked her again for a confiscation form, as I have lost a lot of property in the past this same way. I think that she just did this because she was mad because I asked her for a confiscation form. At no time did I touch her.
Butcher's staff representative noted no discrepancies in the disciplinary process, and reported that he met with Butcher in advance of the hearing to discuss the case and, as requested by Butcher, viewed the video tape. (Doc. 2, p. 14). (Id.)
When questioned about the content of the video tape, the staff representative indicated that "he could not tell if Butcher had actually grabbed the officer's hand, as the angle of the camera only showed the officer's back and blocked the view of the actual incident as written." (Doc. 2, p. 15). He further noted that "the officer did not react as if she had been assaulted and actually left the area where Butcher was and then returned a few seconds later and interacted with Butcher again, before departing." (Id.)
Both inmate witnesses appeared at the hearing and testified that they witnessed the disagreement between Butcher and the officer over the headphones. One witness described Butcher's temperament as "heated." (Id.) However, both inmates testified that they did not see him take headphones from the officer or grab the officer's hand. (Doc. 2, p. 15).
Although Butcher also requested that the reporting officer be present, the DHO "believed that the reporting officer was an adverse witness and their knowledge of the incident was summarized in the incident report, therefore the reporting officer was not called." (Id.)
The DHO concluded that Butcher committed the charged acts. In so finding, he relied on the reporting officer's statement in the incident report that Butcher grabbed her hand and took the headphones. Also, he considered Butcher's statement admitting that he reached into the bag the officer was holding and retrieved the headphones. Because the inmate witnesses testified that they did not see Butcher take the headphones, their statements contradicted Butcher's account of the incident and were deemed unreliable. Finally, in weighing the testimony of the staff representative, the DHO noted that "although the officer may have not reacted in [a] way that would indicate an assault, she did call the Operation Lieutenant and write an incident report. One of the elements of ...