United States District Court, Middle District of Pennsylvania
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
The petitioner, Fernando Lopez-Ugarte, challenges the finding of a Disciplinary Hearing Officer that he was guilty of possession of a weapon, which finding resulted in Lopez-Ugarte losing 40 days of good time credit. Because we conclude that there was some evidence to support the disciplinary finding, we recommend that the petition for a writ of habeas corpus be denied.
II. Background and Procedural History.
Lopez-Ugarte, a federal prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petition concerns the disciplinary process in connection with a disciplinary action taken against Lopez-Ugarte.
On March 19, 2012, Officer Haight issued an incident report charging Lopez-Ugarte with misconduct. In the incident report, Officer Haight described the incident at follows:
On the above date and time, I responded to Brady A, due to Officer Parker receiving a drop note. I conducted a search in cube 16. The inmates assigned in the cube are Rivera #23063-047, Lopez #57954-180, and Alverez #78494-179. I found a 9 inch long plastic weapon with electrical tape wrapped around it for a handle, in the bed assigned to inmate Rivera #23063-047.
Doc. 1 at 10. The incident report charged Lopez-Ugarte with possession of a weapon in violation of Code 104. Id  The incident report was referred to the Unit Discipline Committee (UDC), which in turn referred the incident report to the Discipline Hearing Officer (DHO). Doc. 4-1 at 16.
The DHO held a hearing on May 17, 2012. Doc. 1 at 11. The DHO noted on his Discipline Hearing Officer Report that Lopez-Ugarte was given advance written notice of the charges, was advised of his rights, and indicated that he understood his rights. Id. The DHO further noted that Lopez-Ugarte waived staff representation and did not request witnesses. Id. at 11-12. The DHO summarized Lopez-Ugarte’s statement as follows:
Through interpretation, LOPEZ-UGARTE states that the weapon was found in cellmate Rivera’s bed. However, he did not think it belonged to him. He said he is always in church and helping other people. LOPEZ-UGARTE went on to state that he has no problems and would not need a weapon and third cellmate Alvarez had no problems. Finally, he said he’d been incarcerated seven years with no incident reports.
Id. at 11. Relying primarily on the incident report and a photograph of the item found, the DHO found Lopez-Ugarte guilty of possession of a weapon. Id. at 12-13. The DHO stated that there was no credible evidence to show that Lopez-Ugarte was not potentially responsible for the weapon. Id. The DHO reasoned that, although the weapon was discovered in the bed assigned to one of Lopez-Ugarte’s cellmates, the bed was a common space in the cell, the Bureau of Prisons’ policy provides that inmates are required to keep their assigned area free of contraband, and neither of Lopez-Ugarte’s two cellmates claimed ownership of the weapon in their disciplinary cases. Id. at 13. The DHO concluded that because the weapon was found in Lopez-Ugarte’s assigned living space, he was jointly responsible for it along with his cellmates. Id. The DHO sanctioned Lopez-Ugarte with 30 days of disciplinary segregation, disallowance of 40 days of good conduct time, and loss of commissary privileges for six months. Id. He set forth his reasons for imposing those sanctions emphasizing that possession of a weapon threatens the safety of staff and inmates. Id.. Lopez-Ugarte unsuccessfully appealed the DHO’s decision.
Lopez-Ugarte filed this action on November 22, 2013 claiming that he is actually innocent ...