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McCarthy v. Warden, USP Lewisburg

United States District Court, M.D. Pennsylvania

February 23, 2015

JOHN McCARTHY, Petitioner,
v.
WARDEN, USP LEWISBURG, Respondent.

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, Magistrate Judge.

I. Statement of Facts and of the Case

A. Introduction

This case comes before us on a petition for writ of habeas corpus filed by John McCarthy, an inmate housed at the United States Penitentiary, Lewisburg. In his petition McCarthy brings various claims relating to the conduct of a series of disciplinary proceedings, claims that are both without merit and claims which have not been fully and properly exhausted. Recognizing both the procedural flaws and substantive shortcomings in this petition, for the reasons set forth below, it is recommended that this petition be denied.

B. Statement of Fact and of the Case

In this case, the pertinent facts can be simply stated:

1. McCarthy's latest Disciplinary Citations

The petitioner, John McCarthy is an armed career criminal who is currently serving a sentence of 235 months imprisonment for Possession of a Firearm by a Prohibited Person, in violation of 18 U.S.C. ยงยง 922(g) and 924(e). In the instant petition McCarthy challenges some disciplinary hearing outcomes and seeks relief in the form of an order which would "[e]xpunge all reports. Give good time back - preliminary injunction for appropriate process - declaratory judgment." (Doc. 1., p.8.)

With respect to these disciplinary matters, a review of prison records reveals that between April, 2014 and August, 2014, McCarthy had five separate disciplinary hearings. (Doc. 17.) Only three of the five disciplinary actions against McCarthy during that time period resulted in sanctions against him, including the loss of Good Conduct Time ("GCT") credit toward his federal sentence.

First, on June 3, 2014, the Discipline Hearing Officer ("DHO") conducted a hearing regarding Incident Report No. 2589328, which charged McCarthy with interfering with security devices, in violation of Code 208. See Report ( Id., Att. 1 to Ex. A) at 1.) The report states that McCarthy admitted possession of contraband, a flattened AA battery terminal, and that he denied intent or design to use a handcuff shim. (Id.) McCarthy was found to have committed the prohibited act and received sanctions which included the loss of 27 days of GCT. (Id.)

In addition, on June 3, 2014, the DHO conducted a hearing regarding Incident Report No. 2585371, which charged McCarthy with threatening bodily harm, in violation of Code 203; and refusing to obey an order, in violation of Code 307. See Report ( Id., Att. 1 to Ex. A) at 1.) The report stated that McCarthy admitted refusing to remove his arm from the food slot in his cell door, and but denied stating "come any closer, I'll fuck you up." (Id.) McCarthy was found to have committed the this prison infraction and received sanctions which included the loss of 27 days of GCT. (Id.)

Within weeks of this episode, McCarthy was cited for a July 2014 incident in which he allegedly threatened staff and refused to comply with orders. On this occasion McCarthy was directed to submit to hand restraints while his cell was searched. In response McCarthy reportedly told correctional staff: "Fuck that dude, if you try and put me in that cell I'll fuck up anyone that I have to." (Doc. 17.) On August 8, 2014, the DHO conducted a hearing regarding this prison infraction which charged McCarthy with Threatening Another with Bodily Harm and Refusing to Obey an Order. (Doc. 17 Att. 4 to Ex. A at 1.) In the course of this hearing, the DHO received evidence from staff reports confirming the specific threat made by McCarthy. For his part, McCarthy denied threatening staff while acknowledging that he refused to submit to staff orders. (Id.) At the conclusion of this hearing, the DHO found that McCarthy had committed these prohibited acts, and sanctioned him with the loss of 27 days of good conduct time.

A review of prison records reveals that in each of these three disciplinary episodes McCarthy was afforded his administrative procedural due process rights. Thus, McCarthy received advance notice of the DHO hearings and was advised of his right to staff assistance and to present evidence on his own behalf. In fact, throughout these proceedings McCarthy either exercised or waived his procedural due process rights. Furthermore, the grounds for the adverse disciplinary findings ...


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