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Forney v. Recktenwald

United States District Court, Middle District of Pennsylvania

August 8, 2014

ALFONSO FORNEY, Petitioner,
v.
MONICA RECKTENWALD, Warden, et al., Respondents

RAMBO, J.

REPORT AND RECOMMENDATION

Karoline Mehalchick United States Magistrate Judge

On April 15, 2014, the Court received and filed a petition for a writ of habeas corpus submitted pursuant to 28 U.S.C. § 2241, signed and dated by Petitioner Alfonso Forney on April 13, 2014. (Doc. 1). Petitioner names as Respondents Monica Recktenwald, Warden of FCI Allenwood; J.L. Norwood, Northeast Regional Director; and Charles E. Samuels, Jr., Director of the Federal Bureau of Prisons. (Doc. 1). At the time of filing, Forney was being detained at the United States Penitentiary at Allenwood, located in White Deer, Pennsylvania (USP Allenwood). Thus, the Warden of USP Allenwood at the time of the filing of the petition, Warden Donna Zickefoose, is his custodian and the proper respondent to this petition under Third Circuit precedent. See 28 U.S.C. § 2243; Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994); Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“[T]he proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.”). See also Faulk v. Recktenwald, No. 14-120, 2014 WL 1872118, at *2 n.1 (M.D. Pa. May 8, 2014) (noting that prison warden, not the Bureau of Prisons, was the only correct Respondent to a 28 U.S.C. § 2241 habeas petition). The Petitioner, however, will not be required to submit an amendment. Instead, the Court will liberally construe the petition as naming the appropriate respondent. See Maher v. Pa. Bd. of Probation & Parole, No. 04-1277, 2005 WL 1324879, at *1 n.2 (M.D. Pa. June 3, 2005).

I. Background and Procedural History

At the time of filing, Forney was incarcerated at USP Allenwood.[1] In his petition, Forney alleges due process violations regarding a disciplinary action that occurred while he was incarcerated at the Allenwood Federal Correctional Institution (FCI Allenwood). A disciplinary hearing occurred on September 13, 2013, and resulted in sanctions against Forney, including the loss of Good Conduct Time toward his federal sentence.

On August 26, 2013, at approximately 12:35 p.m., an officer responded to Forney’s cell in the Special Housing Unit (SHU) after Forney activated the duress button in the cell. (Doc. 5, pp. 2-3). When the officer arrived at the door to Forney’s cell, Forney stated that “I want a lieutenant down here now bitch.” (Doc. 5, p. 3). The officer requested Forney and Forney’s cellmate’s food trays. (Doc. 5, p. 3). Forney passed out his cellmate’s tray through the food slot but refused to pass out his tray. (Doc. 5, p. 3). Forney then passed his tray through the slot, but placed a book in the slot preventing it from being closed and locked by the officer. (Doc. 5, p. 3). Forney again requested a lieutenant, and stated he would not remove the book until he could speak with a lieutenant. (Doc. 5, p. 3). At that time he also placed his arm through the food slot. (Doc. 5, p. 3). At approximately 12:50 p.m., Forney submitted to hand restraints and was removed from his cell. (Doc. 5, p. 3). A search of the cell revealed two additional food trays and lids hidden in the cell. (Doc. 5, p. 3). The officer issued Forney an Incident Report, No. 2484676, for a violation of the Bureau of Prisons (BOP) disciplinary codes 208-tampering with or blocking a locking device, 305-possession of anything not authorized, and 312-insolence to a staff member. (Doc. 5, p. 3). The incident report was delivered to Forney on August 26, 2013, at approximately 1:50 p.m. (Doc. 5, p. 3).

On August 29, 2013, Forney appeared before the Unit Discipline Committee (UDC). (Doc. 5, p. 3). The UDC referred the charge to the Discipline Hearing Officer (DHO) for further hearing “due to the severity of the charges.” (Doc. 5, p. 4). At the UDC hearing, Forney received a copy of the “Inmate Rights at Discipline Hearing” form and a “Notice of Discipline Hearing Before the DHO” form. (Doc. 5, p. 4). Forney refused to sign the two forms, but requested Lieutenant Olshefski as a staff representative for the hearing with the DHO. (Doc. 5, p. 4).

On September 11, 2013, the DHO held a hearing for Incident Report No. 2484676. (Doc. 5, p. 4). Forney’s staff representative appeared and stated that he met with Forney prior to the hearing, and noted no discrepancies in the disciplinary process. During the proceeding, Forney did not request any witnesses, he was advised of his rights and indicated that he understood them, and he made a verbal statement denying the charges and submitted a written statement. (Doc. 5, p. 4). In his verbal statement, he admitted to holding the trays “because [he] wanted to speak with a lieutenant” but denied placing a book in the food slot. (Doc. 5-1, p. 31). Forney stated that the officer involved in the incident “was speaking disrespectfully” and he could not remember how he responded but knew that he did not call the officer a bitch. (Doc. 5-1, p. 31). Forney’s written statement, dated September 4, 2013, requested dismissal of Incident Report No. 2484676, on the basis of procedural violations pursuant to Program Statement 5270 dealing with the “Inmate Discipline Program.” (Doc. 5-1, pp. 28-29).

On September 13, 2013, the DHO issued a written report on his decision for Incident Report No. 2484676. (Doc. 5, p. 4). The DHO considered all available evidence, including the incident report and investigation. (Doc. 5, p. 4). The DHO found that, based on the greater weight of the evidence, Forney committed the prohibited acts of tampering with or blocking a locking device (Code 208) and insolence towards a staff member (Code 312) on August 26, 2013. (Doc. 5, p. 4). The DHO expunged the charge for possession of anything not authorized (Code 305) as duplicitous with the sustained charges. (Doc. 5, p. 4). On the Code 208 violation, the DHO sanctioned Forney to fifteen (15) days in disciplinary segregation, a twenty-seven (27) day disallowance of good conduct time, and a four (4) month loss of visiting and telephone privileges. (Doc. 5, p. 5). On the Code 312 violation, the DHO sanctioned Forney to fifteen (15) days in disciplinary segregation, a thirteen (13) day disallowance of good conduct time, and a four (4) month loss of commissary privileges. (Dc. 5, p. 5). A copy of the report was provided to Forney on September 13, 2013. (Doc. 5, p. 5).

On April 15, 2014, Forney filed a pro se petition for a writ of habeas corpus alleging various due process violations regarding the disciplinary action taken against him while he was incarcerated at FCI Allenwood. (Doc. 1). In his Petition, Forney first alleges that the investigating officer, Lt. J. Brown, was a witness to the original incident and, pursuant to Program Statement 5270.09, should not have investigated the incident. (Doc. 1, p. 3). Forney argues Brown’s involvement created a conflict of interest. Second, Forney alleges that the DHO and BOP violated their own program statement when they did not allow Forney to review the camera footage of the incident. Forney alleges that the footage would have confirmed that Lt. J. Brown was present at the incident. (Doc. 1, p. 4). Third, Forney states that the Incident Report does not indicate the exact location of the incident. (Doc. 1, p. 6). Forney states that the location listed on Incident Report No. 2484676 was not “specific” as required by Program Statement 5270 since he was in the Special Housing Unit (SHU) when the incident occurred, and the terms “Special Housing Unit” and/or “SHU” never appear in the report. (Doc. 1, p. 6). In his Fourth Ground, Forney states that the DHO and BOP failed to comply with the Program Statement because the DHO relied on confidential information to support his findings that Forney committed the prohibited acts. (Doc. 1, p. 7).

On May 9, 2014, this Court issued an Order directing Respondents to show cause on or before May 30, 2014, as to why Petitioner should not receive the relief he seeks. (Doc. 4). On May 29, 2014, Respondents submitted a Response to the Petition for Writ of Habeas Corpus. (Doc. 5). Petitioner did not file a reply to the response. This matter is now ripe for disposition.

II. Discussion

A. Summary Dismissal of Habeas Petition

A petition for a writ of habeas corpus may be brought by a prisoner who seeks to challenge the fact or duration of the prisoner’s confinement. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Georgevich v. Strauss, 772 F.2d 1078, 1086-87 (3d Cir. 1985). Under § 2241, a federal prisoner may challenge the execution of his sentence – such as a claim concerning the denial or revocation of parole, or the loss of good-time credits – in the district court for the federal judicial district where the prisoner is in custody. See 28 U.S.C. § 2241(a);Rumsfeld v. Padilla, 542 U.S. 426, 443–44 (2004);Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). To the extent that Forney seeks restoration of telephone and visiting privileges, and removal of all ...


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