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Borker v. Baltazar

United States District Court, M.D. Pennsylvania

October 8, 2014

VITALY BORKER, Petitioner,


WILLIAM W. CALDWELL, District Judge.

I. Introduction

Vitaly Borker, an inmate at the federal correctional institution in Allenwood, Pennsylvania, has filed a pro se petition under 28 U.S.C. ยง 2241 challenging disciplinary proceedings against him. As a result of the proceedings, Petitioner lost credit against his sentence for twenty-seven days of good conduct time.

Petitioner claims the following due process violations. First, he was not given twenty-four-hours notice of the charge against him when he was found guilty on appeal of a charge that was not made against him at the disciplinary proceedings. Second, the prohibited acts that may subject an inmate to disciplinary sanction are not described sufficiently rendering them too vague for enforcement. Third, Petitioner's waiver of a staff representative at the hearing was not knowing or intelligent because Petitioner had not been advised that a staff representative, unlike the inmate, could view all the evidence. Fourth, he was not allowed to see a copy of a memorandum by a case manager that might have provided exculpatory evidence.

II. Relevant Law

Federal prisoners have a liberty interest in good time credits. Lang v. Sauers, 529 F.Appx. 121, 122 (3d Cir. 2013)(nonprecedential). At a disciplinary hearing that may result in the loss of good time credits, due process requires that an inmate "receive: (1) written notice of the charges at least 24 hours prior to a hearing; (2) an opportunity to call witnesses and present evidence in his defense; (3) an opportunity to receive assistance from an inmate representative; and (4) a written statement of the evidence relied on and the reasons for the disciplinary action." Id. at 123 (citing Wolff v. McDonnell, 418 U.S. 539, 563-71, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)).

Due process also requires that the Discipline Hearing Officer's (DHO's) decision be supported by "some evidence." Id. (quoting Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985)). A determination of whether there is some evidence to support the decision "does not require examination of the entire record, an independent assessment of the credibility of witnesses, or a weighing of the evidence." Id. (citing Thompson v. Owens, 889 F.2d 500, 502 (3d Cir. 1989)). "This requirement is minimal, and is satisfied if there is any evidence in the record that could support the conclusion reached by the'" DHO. Deen-Mitchell v. Bledsoe, 548 F.Appx. 747, 750 (3d Cir. 2013)(nonprecedential)(quoting Hill, 472 U.S. at 455-56, 105 S.Ct. at 2774).

III. Background

In an incident report, dated November 3, 2012, Petitioner was charged with an attempt to commit two offenses on November 2, 2012: (1) giving or offering any official or staff member a bribe (a Code 216 violation); and (2) making sexual proposals or threats to another (a Code 206 violation). (Doc. 9-2, ECF p. 7).[1] On November 28, 2012, a hearing was held, (Doc. 9-2, ECF p. 14), and in a report dated December 18, 2012, the DHO found him guilty only on the attempt to bribe an official or staff member. ( Id., ECF pp. 15, 16). Petitioner was sanctioned by disallowance of 27 days of good conduct time, the imposition of 15-days disciplinary segregation, the loss of ninety-days e-mail privileges, and the loss of ninety-days phone privileges. ( Id., ECF p. 15).

In his report, the DHO listed the evidence upon which he based his decision:

This decision is based on the evidence provided before me which is documented in the written report provided by the reporting employee. The employee documented, "On November 3, 2012, at approximately 1:30 p.m., as I was monitoring inmates' emails through the TRULINCS program, I reviewed inmate Vitaly Borker's email to numerous recipients at 11:03 pm, dated November 2, 2012, titled, "A guard likes me". He states in the email, "I am going to take a shower, then I am going to get dress up a little, do my hair with gel, and get back on the computer and pass by her office to ask her some questions. If it gets personal I am going to come down in the middle of the night, and try to fuck her. If she allows me to fuck her, I am going to bribe the BOP with 2 man room and other good things in exchange for information leading to guard and inmate sex. Maybe I will fuck her a little more than once and ask her to bring me some lobster and report it."[2] Activities Lieutenant was notified."

(Doc. 9-2, ECF p. 15)(spelling and grammar as in original)(footnote added).

Petitioner appealed the decision to the Bureau of Prison's (BOP's) Northeast Regional Office, arguing, as he did before the DHO, that the e-mail was intended as a joke and further, that it did not support the conclusion that a bribe, or attempted bribe, took place. On February 15, 2013, the Regional Director rejected the appeal. In doing so, he agreed with Petitioner that his conduct did not satisfy the elements of attempting to bribe a staff member. However, he did find Petitioner guilty ...

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