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Rudy Stanko v. Warden David Ebbert

April 18, 2011

RUDY STANKO, PETITIONER
v.
WARDEN DAVID EBBERT,
RESPONDENT



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

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

On October 5, 2009, Petitioner Rudy Stanko ("Petitioner" or "Stanko"), an inmate presently confined at the Federal Correctional Institution in Terre Haute, Indiana ("FCI Terre Haute"), initiated the instant pro se action by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241. At the time of filing, Stanko was an inmate at the Federal Correctional Institution Allenwood ("FCI Allenwood") in White Deer, Pennsylvania.

On December 8, 2009, the Honorable James F. McClure, Junior, to whom this case then was assigned, summarily dismissed the Petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts without prejudice to Stanko's ability to pursue his claims seeking relief based upon allegedly unconstitutional conditions of confinement in a properly filed civil rights action. (Doc. 4.) Stanko appealed, and in an opinion filed on September 21, 2010, the United States Court of Appeals for the Third Circuit affirmed the dismissal of Stanko's challenge to the conditions of his confinement, but vacated the December 8, 2009 Order to the extent that it dismissed Stanko's claims that sounded in habeas. (See Doc. 9-1.) Specifically, the Third Circuit Court of Appeals held that the Court should have considered Stanko's challenge to the validity of disciplinary proceedings that occurred on February 12, 2009 while he was in the custody of the Federal Bureau of Prisons ("BOP") at an unspecified institution that resulted in a sanction of an additional twenty-seven (27) days in jail, and therefore, remanded the case for further proceedings consistent with its Opinion. (See id.) The Opinion was docketed in this Court on November 9, 2010 (Doc. 8), and was followed by the entry of a Mandate on November 12, 2010 (Doc. 9).

By Order dated November 15, 2010, President Barack Obama was dismissed as a respondent to this action, leaving Warden Ebbert as the sole Respondent, service of the Petition was directed, and Respondent was directed within twenty-one (21) days to file an answer solely addressing Petitioner's challenge in his petition to the validity of BOP disciplinary proceedings that occurred on February 12, 2009 that resulted in a sanction of an additional twenty-seven (27) days in jail. (Doc. 10.) On December 3, 2010, Respondent filed a Response (Doc. 11) and supporting exhibits*fn1 (Doc. 11-2). On December 17, 2010, Stanko filed a Motion requesting a ten (10) day extension of time to file a Reply. (Doc. 12.) On December 22, 2010, following Judge McClure's death, this case was re-assigned to this Member of the Court. Thereafter, on December 28, 2010, Stanko filed his Reply. (Doc. 13.) By Order dated December 29, 2010, we granted nunc pro tunc Stanko's Motion requesting an extension of time to file his reply brief, and thus we deemed his Reply to be timely filed. Accordingly, the Petition is fully briefed and ripe for disposition. For the reasons set forth herein, the Petition will be denied.

I. FACTUAL BACKGROUND

On August 3, 2006, Stanko was sentenced by the United States District Court for the District of Nebraska to a seventy-two (72) month term of imprisonment for felon in possession of a firearm. (Doc. 11-1 at 8, Stanko's Public Information Data and Inmate History.) As of December 1, 2010, his projected release date was August 28, 2011, via good conduct time release. (Id.) Stanko was admitted to BOP custody on September 18, 2006 and designated to FCI Allenwood on July 27, 2009. (Id. at 14-15.*fn2 ) He was designated to the FCI in Englewood, Colorado, ("FCI Englewood") from October 16, 2008 through February 13, 2009. (Id. at 14.)

On February 4, 2009, while Stanko was confined at FCI Englewood, he was issued Incident Report No. 1829781, which charged him with interfering with staff in the performance of their duties. (Doc. 11-1 at 20, Incident Report #1829781.) The incident report was delivered to Stanko that same day. (Id., Boxes 14-16.) The report states, that on February 4, 2009, at approximately 10:00 a.m., the Special Investigative Services Office ("SIS") completed an investigation which concluded that Stanko made threats against several BOP employees by submitting documents to his unit team that indicated he would file liens against these BOP staff members. (Id., Box 11.) The incident specifically was described as follows:

On 12-10-08, Stanko submitted several documents to his unit team which listed complaints and issued threats to file liens against the Education Supervisor, two Lieutenants and the Warden for the performance of their duties. The documents stated in part: 'A fine of no less than $5,000 for each civil rights violation as codified at 18 USC . . . If not prosecuted or rebutted point for point categorically within three months, the surety shall be a lien on all property and rights to property of the Defendant, severally and jointly, which includes all official performance bonds and home owners insurance policies, and the unpaid balance will be payable to the Federal Bureau of Prisons from the US Treasury.' (Id.) The description of the incident also notes that the documents were fraudulently notarized by another inmate. (Id.) Copies of the documents are attached to the Incident Report. (Doc. 11-1 at 21-26.)

In addition, SIS's investigation revealed that Stanko filed additional documents containing lien threats against a unit manger, the warden, the associate warden, the facilities assistant, the inmate systems manager at the FCI in Waseca, Minnesota ("FCI Waseca"), the regional director, a lieutenant, and six (6) unnamed bus drivers for the performance of their duties. (Doc. 11-1 at 20, Box 11.) As stated in the incident report, the filing of fraudulent Uniform Commercial Code ("UCC") redemptive process documentation by inmates is a means of harassing and intimidating federal employees and an attempt to prevent them from performing their duties. (Id.) The incident report also states that the SIS found that Stanko's actions were an attempt to extort money from these individuals and is a federal crime. (Id.)

On February 5, 2009, the Unit Disciplinary Committee ("UDC") reviewed the charges against Stanko. (Doc. 11-1 at 20, Incident Report, Part II- Committee Action.) The UDC referred the charges to the Disciplinary Hearing Officer ("DHO") because of the severity of the charges and sanctions that were unavailable to the UDC. (Id., Box. 19.)

On February 5, 2009, Stanko was advised that a hearing would be held before the DHO at a date and time to be determined. (Id. at 20 § II; Doc. 11-1 at 28, Notice of Discipline Hearing.) Also on February 5, 2009, Stanko was advised of his rights before the DHO. (Doc. 11-1 at 29, Inmate Rights at Discipline Hearing.) Stanko refused to sign the documents advising him of the hearing and of his rights at the hearing. (See id. at 28-29.)

At the DHO hearing on February 12, 2009, Stanko was in attendance and denied the charges, but stated he felt he had the right to file the sureties and that, "The money is not mine, it is going to the BOP. I have never filed a UCC, this is not a UCC, I do not have a UCC account." (Doc. 11-1 at 31, Discipline Hearing Officer Report, § III B.) According to his report, the DHO considered all available evidence, including the reporting staff member's incident report. (Id. § III. D.) The DHO also considered that Stanko admitted culpability during the hearing in making the statement "I have the right to file these with surety"; a copy of the documents containing the lien threats; the statements of the witnesses that Stanko requested; and the fact that the staff member is considered more credible in that he is morally and legally obligated to submit truthful statements and would not stand to gain by doing otherwise. (Id. at 32 § V.)

Stanko was found to have committed the prohibited acts. (Id. at 31 ยง IV.) The DHO sanctioned him to a disallowance of twenty-seven (27) days of good conduct time; thirty (30) days of disciplinary segregation; twelve (12) months loss of commissary; six (6) months loss of telephone ...


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