The opinion of the court was delivered by: Judge Rambo
Presently before the court is a petition for writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2241, filed by Petitioner Kareem Hassan Milhouse ("Milhouse"), an inmate confined at the United States Penitentiary in Lewisburg, Pennsylvania ("USP-Lewisburg"). Milhouse alleges that his constitutional rights were violated in the context of a disciplinary proceeding. For the reasons that follow, the petition will be denied.
On December 4, 2009, at approximately 10:55 a.m., while collecting food trays in USP-Lewisburg's Z-Unit, Officer Figlio, S.O.S., arrived at the cell of Milhouse and his cellmate. (Doc. 8-1 at 16.) The Officer observed Milhouse "standing in full view of his cell door window calling this Officer's name and stroking his exposed penis, engaged in the act of masturbation, while looking at this Officer." (Id.)
As a result of this incident, Milhouse was issued an incident report charging him with Engaging in a Sexual Act and Indecent Exposure, in violation of Sections 205 and 300 of the Bureau of Prisons' ("BOP") disciplinary code, respectively. (Id.) The incident report was delivered to Milhouse at approximately 11:30 a.m. on that same day, December 4, 2009. (Id.)
An investigation was conducted on December 4, 2009, commencing at 11:30 a.m. (Id. at 17.) The investigating officer, Thomas Brouse, advised Milhouse of his rights and gave him a copy of the report. (Id.) The officer noted that Milhouse made no statement and displayed a poor attitude. (Id.) After completing his investigation, Officer Brouse referred the incident report to the Unit Disciplinary Committee ("UDC") for further review. (Id.)
The UDC held a hearing on December 7, 2009. (Id. at 16.) At the hearing, Milhouse refused to make a statement. (Id.) He refused to sign a "Waiver of Appearance" and refused to sign an acknowledgment of "Inmate Rights at a Discipline Hearing." (Id. at 20, 22.) After reviewing the matter, the UDC referred it to the Disciplinary Hearing Officer ("DHO") for further hearing. (Id. at 16.) Milhouse was advised of the DHO hearing and advised of his rights at that hearing. (Id. at 19, 21-23.) He was given copies of "Duties of Staff Representative," "Notice of Discipline Hearing Before the DHO," and "Inmate Rights at Discipline Hearing."
(Id.) Milhouse refused to sign the "Inmate Rights at Discipline Hearing" form. (Id. at 22.)
The DHO held a hearing on January 19, 2010. (Id. at 11-15.) On that date, the DHO noted that he had attempted to hear the case on three previous occasions, December 8, 2009, December 16, 2009, and January 5, 2010, but Milhouse's requested staff representative at each hearing date either withdrew due to a reassignment or a conflict of interest. (Id. at 11-12.) On January 19, 2010, Milhouse received a Warden-appointed staff representative whom he agreed to. (Id. at 12.) At the hearing, Milhouse acknowledged that he understood his rights before the DHO and was ready to proceed with the hearing. (Id.) He presented no documentary evidence for the DHO to consider. (Id.) Milhouse testified that Section 11 of the incident report outlining the incident was inaccurate, and was completely fabricated by the reporting officer. (Id.) He testified that he did not commit the prohibited act. (Id.) The DHO also heard testimony from Milhouse's cellmate, Inmate Gray, who stated that he was the one who was "talk[ing] shit" to the reporting officer and that "both he and Milhouse could not have both been engaging in the exact same behavior at the same time." (Id.) The DHO noted that Milhouse made no complaints of procedural errors during the hearing. (Id.)
The DHO relied on the incident report and investigation, the reporting officer's eyewitness written account, and the testimony of Milhouse and his cellmate, to support his finding that Milhouse had committed the Code 205 violation, Engaging in a Sexual Act. (Id. at 13.) Milhouse was sanctioned with disallowance of 41 days of good conduct time, 60 days of disciplinary segregation, loss of 120 days of commissary privileges, loss of 120 days of telephone privileges, and loss of 120 days of visiting privileges. (Id. at 14.)
The BOP disciplinary process is fully outlined in the Code of Federal Regulations, Title 28, Sections 541.10 through 541.23. These regulations dictate the manner in which disciplinary action may be taken should a prisoner violate, or attempt to violate, institutional rules. The first step requires filing an incident report and conducting an investigation pursuant to 28 C.F.R. § 541.14. Staff is required to conduct the investigation promptly absent intervening circumstances beyond the control of the investigator. 28 C.F.R. § 541.14(b).
Following the investigation, the matter is then referred to the UDC for a hearing pursuant to 28 C.F.R. § 541.15. If the UDC finds that a prisoner has committed a prohibited act, it may impose minor sanctions. If the alleged violation is serious and warrants consideration for more than minor sanctions, or involves a prohibited act listed in the greatest or high category offenses, the UDC refers the matter to a DHO for a hearing. 28 C.F.R. § 541.15. Because Milhouse was charged with Engaging in a Sexual Act, an offense in the high severity category, the matter was referred for a disciplinary hearing.
High category offenses carry a possible sanction of, inter alia, loss of good conduct time credits. 28 C.F.R. § 541.13. When a prison disciplinary hearing may result in the loss of good conduct time credits, due process requires that the prisoner receive (1) written notice of the claimed violation at least twenty-four (24) hours in advance of the hearing, (2) an opportunity to call witnesses and present documentary evidence in his or her defense when doing so would not be unduly hazardous to institutional safety or correctional goals, and (3) a written ...