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Shonta Mcpherson v. David Ebbert

December 6, 2012


The opinion of the court was delivered by: Yvette Kane, Chief Judge Middle District of Pennsylvania

(Chief Judge Kane)


Shonta McPherson is an inmate confined at the Federal Correctional Institution at Allenwood-Medium, Pennsylvania. He filed this petition for writ of habeas corpus pursuant to

28 U.S.C. § 2241 on January 9, 2012, wherein he challenges the number of good conduct days he lost pursuant to the sanction imposed by the Disciplinary Hearing Officer ("DHO") for the Code 222 offense of possessing intoxicants. Specifically, he maintains that the sanctions imposed exceed those permitted for a 200-level offense. On February 2, 2012, a response to the petition was filed. (Doc. No. 7.) A traverse was subsequently submitted by McPherson. (Doc. No. 8.) On July 13, 2012, McPherson filed a supplement to his petition. (Doc. Nos. 9, 10.) A response to the supplement was filed by Respondent. (Doc. No. 13.) No further filings were submitted by McPherson in reply to the supplemental response. The matter is ripe for consideration and, for the reasons that follow, the petition will be denied.

I. Factual Background

McPherson is currently serving a 150-month federal sentence for a drug-related conviction. (Doc. No. 7, Ex. 1, McCluskey Decl. ¶ 4.) His projected release date is July 27, 2017, via good conduct time release. (Id.) On July 19, 2011, a correctional officer at FCIAllenwood found a bag containing a liquid substance in between the mattress and the bunk assigned to McPherson. (Doc. No. 7, Ex. 1 at ¶ 5; Attach. B, Incident Report § 11.) McPherson told the correctional officer that the liquid belonged to him. (Id.) The liquid tested positive for intoxicants. (Id.) As a result, the officer issued Incident Report #2187905 to McPherson charging him with a Code 222 violation for possession of intoxicants. (Id. § 9.) A copy of the incident report was delivered by a BOP staff member to McPherson on July 20, 2011. (Id. §§ 14-16.)

On July 25, 2011, McPherson appeared before the Unit Discipline Committee ("UDC") and admitted that he was guilty. (Id. §§ 17-21.) The UDC referred the charge to the DHO for further hearing. (Doc. No. 7, Ex. 1 at ¶ 5; Attach. B.) At the UDC hearing, a staff member advised McPherson of his rights before the DHO, and McPherson signed a copy of the "Inmate Rights at Discipline Hearing" form. (Id., Ex. 1 at ¶ 5; Attach C.) He also signed the form entitled "Notice of Discipline Hearing Before the DHO." (Id.) On that form, he indicated that he did not wish to have a staff representative or any witnesses. (Id.)

On July 28, 2011, the DHO hearing was conducted. (Doc. 7, Attach. D, DHO Report.) The DHO noted that McPherson was provided with a copy of the incident report on July 20, 2011, and that he was advised of his rights on July 25, 2011. It was further noted that McPherson indicated that he understood his rights, and that he waived the appearance of a staff representative and did not wish to have any witnesses. (Id. §§ I (A)-(C) and III (C)(1).)

At the DHO hearing, McPherson again admitted to the offense charged and stated that "the report is true." (Id. § III (A)-(B).) After considering all available evidence including the incident report, investigation, and photographs of the intoxicants, the DHO concluded that the greater weight of the evidence supported the finding that McPherson committed the Code 222 offense of making, possessing or using intoxicants on July 19, 2011. (Id. §§ III-V.) It was noted by the DHO that this was McPherson's fourth Code 222 offense. (Id. §§ IV(B), VI and VII.) McPherson's disciplinary record indicates that he also violated Code 222 on March 20, 2010, February 6, 2011, and April 21, 2011. (Doc. No. 7, Ex. 1, McCluskey Decl., Attach. E.)

On the same date as the hearing, the DHO issued a written decision and delivered a copy of it to McPherson. (Id. § IX.) McPherson was sanctioned to sixty (60) days in disciplinary segregation, a fifty-four (54) day disallowance of good conduct time, a 243-day forfeiture of non-vested good conduct time, a one (1) year loss of telephone and visiting privileges, and a four (4) month loss of commissary privileges. (Id. § VI.) It was noted in the report that as McPherson's fourth Code 222 violation, this conduct represented a "highly aggravated offense which greatly jeopardizes the safety of staff and inmates." (Id. § VII.)

McPherson has filed the instant petition and supplement thereto challenging the sanctions he received from the DHO. Specifically, he maintains that the number of non-vested good time days lost should have been far fewer. He also maintains that he did not have prior Code 222 violations.

II. Discussion

The BOP disciplinary process is fully set forth in the Code of Federal Regulations, Title 28, Sections 541 through 541.8.*fn1 These regulations dictate the manner in which disciplinary action may be taken should a prisoner violate institutional rules. The first step requires filing an incident report and conducting an investigation. Staff is required to conduct the investigation promptly absent intervening circumstances beyond the control of the investigator. See 28 C.F.R. § 541.5 (formerly §541.14). Following the investigation, the matter is then referred to the UDC for a hearing pursuant to 28 C.F.R. § 541.7 (formerly § 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. Id. Based upon the seriousness of the charges against McPherson and the requirement of sanctions greater than could be afforded by the UDC, the instant matter was referred for a disciplinary hearing.

Greatest category offenses carry a possible sanction of loss of good conduct time credits. 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 statement by the factfinder as to evidence relied on and reasons for the disciplinary action. See Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974). The DHO's decision is required to be supported by some evidence in the record. See Superintendent v. Hill, 472 U.S. 445, 454 (1985); see also Young v. Kann, 926 F.2d 1396, 1402-03 (3d Cir. 1991)(applying Hill standard to federal prisoner due process challenges to prison disciplinary proceedings). The determination of whether the standard is satisfied "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56. Under Hill, judicial review of a prison disciplinary decision is limited to ensuring that the prisoner was afforded certain procedures, the action against him was not arbitrary, and that the ultimate decision has some evidentiary support. Id. at 457; see also 28 C.F.R. ยง 541.8(f) ...

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