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Scott v. Martinez

March 20, 2009

HENRY SCOTT, PETITIONER,
v.
JERRY MARTINEZ, RESPONDENT



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by Petitioner Henry Scott ("Scott"), an inmate at the Low Security Correctional Institution at Allenwood, Pennsylvania. Scott alleges that his constitutional rights were violated in the context of a disciplinary proceeding. The petition is ripe for consideration and, for the reasons that follow, will be denied.

I. BACKGROUND

On January 28, 2007, Officer Powell was conducting rounds at the Federal Prison Camp in Petersburg, Virginia when he observed Scott sitting in his assigned cubicle, talking on a black cellular phone. According to Powell, Scott had the phone in his right hand and was holding it to his right ear. When Scott noticed Powell, he made a throwing motion with his right hand in the direction of his bed and stood up. As Powell walked closer to the entrance of the cubicle, Scott started to approach Powell. As Powell put his hand up and twice ordered Scott to stop, Scott continued to walk past Powell, exited the cubicle out of the room, and walked into a crowd of inmates. He and his roommate were located by staff about twenty (20) minutes later. On the same date, Scott was transferred to the Special Housing Unit pending an investigation. (Doc. No. 6, Ex. 1, Hise Declar. ¶ 5.)

Powell wrote Incident Report 1560898 on January 31, 2007, charging Scott with Possession or Introduction of Hazardous Equipment, in violation of Bureau of Prisons' Code 108, and Refusing to Obey a Order, in violation of Code 307. (Id., Ex. 1, Attach. D.) Scott was thereafter provided with a copy of the report on February 1, 2007. (Id.)

On February 2, 2007, Scott appeared before the Unit Discipline Committee ("UDC"). He was afforded the opportunity to make a statement. He informed the UDC "that he never had a cell phone and that the officer never told him to stop walking." (Id.) The UDC determined that the case should be referred to the Disciplinary Hearing Officer for a hearing.

Prior to a DHO hearing being conducted, Incident Report 1560989 was suspended and returned to Officer Powell to be rewritten. BOP staff determined that the body of the original report, as written, did not contain enough evidence to support a finding that Scott committed the prohibited acts. (Id., Ex. 1, ¶ 10, Attach. E.) Further, due to the need for the report to be rewritten, Scott's Unit Team requested an extension of time to conduct another UDC hearing.*fn1

(Id. at ¶ 11, Attach. E.) Warden Adams approved the extension of time to conduct another UDC hearing. (Id.)

On February 9, 2007, Officer Powell rewrote Incident Report 1560898. (Doc. No. 6, Ex. 1, ¶ 12, Attach. F.) Upon reviewing the report, the DHO determined that it still lacked sufficient information regarding Scott's conduct after being confronted by Powell on the date of the incident. (Id.) Powell was asked to again rewrite the report. A second rewritten report was prepared on February 21, 2007. (Id., Ex. 1, ¶ 13, Attach. B.) Scott was provided with a copy of the report the following day, charging him with the Code 108 and Code 307 violations.

On February 26, 2007, a hearing on the incident report was conducted by the UDC. Scott again was afforded the opportunity to make a statement. He stated " that he was not sitting in a chair in the room talking on a cell phone, did not disobey an order, and did not walk into a crowd of inmates." (Id., Ex. 1, ¶ 15, Attach B.) After considering the evidence, the UDC determined the matter should be referred to the DHO for a hearing. Scott was thereafter advised of his rights before the DHO and signed the Inmate Rights at Discipline Hearing form, acknowledging that he had been advised of his rights. (Id.)

A DHO hearing took place on March 7, 2007. At the hearing, Scott stated that he had received a copy of the incident report and understood his rights. (Id., Ex. 1, ¶ 17, Attach. H.) Although he had initially requested a staff member to represent him at the hearing, he waived the right to a staff representative. (Id.) Scott denied the charges claiming that he did not have a cell phone. Rather, he claims to have had headphones on his ear. Although provided with the opportunity to present witnesses and documentary evidence, Scott chose not to do so. (Id.)

After considering all of the evidence, the DHO found Scott guilty of the Code 108 violation, Possession or Introduction of Hazardous Equipment. In doing so, he relied upon the personal observation of Officer Powell, a memorandum from Lieutenant Negron-Oliver, Scott's statements and also the conduct of Scott when encountered by Powell at the time of the incident. (Id.) The Code 307 violation of Refusing to Obey an Order was dismissed by the DHO because said conduct was considered in finding guilt with regard to the Code 108 violation. Scott was sanctioned to the following: (1) thirty (30) days disciplinary segregation, fifteen (15) days suspended pending 180 days clear conduct; (2) disallowance of forty-one (41) days good conduct time; (3) one year loss of telephone privileges; and (4) recommendation for a disciplinary transfer. (Id., Ex. 1, ¶ 26.)

In the pending petition, Scott alleges that he was not provided with the required due process with regard to the disciplinary action against him. He further contends that there was insufficient evidence to support the findings of the DHO. Scott also repeatedly argues throughout his petition that he could not be charged with Possession or ...


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