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Butler v. Scism

June 3, 2010

KENNETH BUTLER, PETITIONER
v.
WILLIAM SCISM, RESPONDENT



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Kenneth Butler ("Petitioner" or "Butler"), an inmate presently confined at the Allenwood Low Security Correctional Institution ("LSCI Allenwood") in White Deer, Pennsylvania, commenced the instant action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241. (Doc. 1.) Butler alleges that he was denied due process during disciplinary proceedings that were conducted while he was an inmate at the Otisville Federal Correctional Institution ("FCI Otisville") in Otisville, New York. (See id.) Following those proceedings, the Disciplinary Hearing Officer ("DHO") found Butler guilty of the charges against him and imposed sanctions, including the loss of fifty-four (54) days of good conduct time, disciplinary segregation, and the loss of visiting and commissary privileges. As relief, Butler requests the restoration of his good conduct time, reinstatement of his visiting and commissary privileges, and expungement of the incident from his disciplinary record.

Service of the Petition was directed by Order dated December 3, 2009. (Doc. 5.) On December 24, 2009, Respondent filed a Response (Doc. 6) and supporting exhibits*fn1 (Doc. 6-2.) On January 4, 2010, Petitioner filed a Reply. (Doc. 7.) Accordingly, the Petition is fully briefed and ripe for review.

I. FACTUAL BACKGROUND

On November 15, 2008, while Butler was an inmate at FCI Otisville, Mr. Lincoln, Cook Supervisor, conducted a search of the "A" side cubes in the prison camp. (Doc. 6-2 at 4 ¶ 11, Incident Report; Doc. 6-2 at 12 § V, DHO Report.) While in cube number seventeen, and searching Butler's locker, Lincoln found two pairs of safety glasses, one half dozen onions, one half dozen green peppers, and a calculator without an identification number. (See Doc. 6-2 at 4, 12.) Lincoln also found a pair of shoes, which Butler identified as his shoes. (See id.) Lincoln found hidden in the shoes six yellowish pills that were wrapped in plastic, then wrapped in a paper towel, and further wrapped in more plastic. (See id.) The incident report prepared by Lincoln indicates that further analysis of the pills by BOP staff member Henwood indicated the presence of amphetamines. (See id. at 4.) In a Memorandum dated November 23, 2008, Activities Lieutenant B. Henwood provides the following account regarding the testing of the pills:

On November 15, 2008 at approximately 2:00pm Food Service Foreman Mr. Lincoln brought to the Lieutenant's Office items he had found during a shakedown at the Camp that he thought may be drugs. Specifically 6 yellowish pill / capsule type items without any label or marking on them. These items were placed in the SIS Evidence Locker in the Lieutenant's Office until a NIK Test could be conducted on them.

On November 16, 2008 at approximately 8:45am these items were removed from the SIS Locker and tested utilizing the NIK Test. The items tested positive for AMPHETAMINES. (See id. at 6, Henwood Memo.)

An incident report, which charged Butler with violations of Code 113 for Possession of Narcotics Not Prescribed by Medical Staff and Code 305 for Possession of Anything Not Authorized, was delivered to Butler by Lieutenant Henwood on November 16, 2008 at 12:15 p.m. (See id. at 4 ¶¶ 10, 14-16.) On November 17, 2008, Butler was seen by the Unit Disciplinary Committee. (See id. ¶¶ 17-21.) The Committee referred the matter to the DHO. (See id.) Butler's disciplinary hearing took place on November 24, 2008. (See id. at 11.) The DHO found that Butler had committed the prohibited act of Possession of Narcotics Not Prescribed by Medical Staff, in violation of Code 113, and sanctioned Butler to a disallowance of fifty-four (54) days of good conduct time, thirty (30) days of disciplinary segregation, eighteen (18) months loss of commissary privileges, eighteen (18) months loss of visiting privileges, and eighteen (18) months Immediate Family Only Visiting to commence upon completion of the previous sanctions. (See id. at 12-13, §§ IV-VI.)

The DHO also found that Butler had committed the prohibited act of Possession of Anything Not Authorized, in violation of Code 305, and sanctioned him to "15 Days Disciplinary Segregation - Suspended Pending 180 Days Clear Conduct." (See id. at 13 § VI.) The DHO provided the following explanation of his findings:

Specific evidence relied on to support this finding is the incident report written by Mr. Lincoln, Cook Supervisor. He states that on November 18, 2008, at approximately 1:30 p.m., he conducted a random search of your Cube, #17. In your locker, he discovered two pairs of safety glasses, a half dozen onions, a half dozen peppers and a calculator without any identification number. He also discovered six yellowish pills wrapped in plastic and paper towels. These pills were found in your shoes. In his memorandum, Acting Lt. Henwood stated he tested the pills and they were positive for Amphetamines. You offered the following as your defense: The incident report is not true. I was in my cube and Mr. Lincoln came down. I would have to get rid of it if it was mine. Mr. Lincoln was always telling me I was next to go from the Camp. I had three green peppers, a calculator and sunglasses from my job. The DHO asked if Mr. Lincoln asked if they were your boots. You said he asked what side of the cube you kept your boots on and you told him the left side. The DHO asked if that was the side the boots were with the pills in them. You said it was. When asked, you said you received the peppers from another inmate to hold.

Based on the incident report, your statement and supporting documentation, the DHO has given greater weight to the written report from staff. You admitted you possessed the peppers you received from another inmate. You also admitted the boots he searched were yours. Inmates are responsible for all contraband found in their cells and property. The DHO finds you have committed Prohibited Act 113 -Possession of Narcotics and Code 305 - Possession of Anything Not Authorized. (See id. at 12 § V.)

II. DISCUSSION

Butler alleges that he was denied due process in the disciplinary proceedings that were conducted at FCI Otisville because there was insufficient evidence to support the DHO's finding that Butler was guilty of the charged offenses. (See Doc. 1 at 3-6.) Because Butler's sanctions included the revocation of fifty-four (54) days of good conduct time, and thus the disciplinary hearing impacted the duration of his ...


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