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McRae v. Ebbert

United States District Court, M.D. Pennsylvania

December 16, 2019

ANDRE L. MCRAE, Petitioner
v.
DAVID J. EBBERT Respondent

          Mannion Judge

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE

         Andre L. McRae, an inmate confined in the United States Penitentiary, Lewisburg, Pennsylvania, filed the above captioned petition for a writ of habeas corpus, pursuant to 28 U.S.C. §2241. (Doc. 1, petition). He challenges a disciplinary action against him, which occurred while he was incarcerated at the United States Penitentiary II, Coleman, Florida. Id. Specifically, he claims that he was “deprived due process where the decision to charge and sanction him under Code 297 as opposed to a less severe charge and sanction under an identically described violation is vague, capricious and arbitrary.” Id. For relief, he requests the incident report be vacated and “all sanctions restored, to include loss of 27 days good conduct time and all references to the incident report expunged from Petitioner's records.” Id. The petition is ripe for disposition and, for the reasons that follow, will be denied.

         I. Background

         On March 13, 2017 at approximately 5:30 p.m., Lieutenant J. Bosbous delivered Incident Report No. 2959116 to McRae, charging him with Telephone Abuse, in violation of Code 297. (Doc. 4-1 at 7, Incident Report). The incident report reads as follows:

On March 6, 2017, at approximately 2:00 p.m., I monitored a telephone call made by McRae, Andre, Reg. No. 20831-057. McRae called phone number 786-546-6955 on 03-05-2017, at approximately 6:49 p.m. He spoke to a male individual. During the call McRae asked the male to call his mother. The male called his mother and was able to connect with her. McRae asked the male questions and the male related the information from one person to the other in a three way conversation. Three way calls are not authorized and pose a threat to the safe secure and orderly running of FCC Coleman USP 02. This is a re-write.

Id. On March 16, 2017, Petitioner appeared before the Unit Discipline Committee (“UDC”). (See Doc. 4-1 at 60, Committee Action). Due to the severity of the charges, the UDC referred the charge to the Discipline Hearing Officer (“DHO”), recommending “loss of phone for 120 days and loss of commissary for 90 days.” Id. During the UDC hearing, staff member, Counselor Summerfield informed McRae of his rights at the DHO hearing and provided him with a copy of the “Inmate Rights at Discipline Hearing” form. (Id. at 62, Inmate Rights at Discipline Hearing).

         Also on March 16, 2017, McRae was provided with a “Notice of Discipline Hearing before the (DHO)” form. (Id. at 64). McRae did not request to have a staff representative. Id. He did request to have an inmate witness testify that he did not make a call. Id.

         On March 22, 2017, McRae appeared for a hearing before DHO, W. White. (Doc. 4-1 at 65-67). He waived his right to have witnesses. Id. McRae neither admitted nor denied the charges before the DHO and stated “No comment”. Id.

         In addition to the Incident Report and Investigation, the specific evidence relied on to support the DHO's findings was as follows:

Your due process rights were reviewed with you by the DHO at the time of the hearing. You stated you understood your rights, had no documentary evidence to present. You did not request any witnesses, and you declined the services of a staff representative to assist you during the hearing. You indicated to the DHO you were ready to proceed with the hearing.
It should be noted that the original incident report was written on 03-06-2017. However, a rewrite of the incident report was requested due to additional information needed in the report. The second version was written on 03-13-2017 and you were given your copy on 03-13-2017. This was explained to you and noted during your DHO hearing. This delay did not affect your ability to present a defense.
In addition, your UDC was conducted late due to the report being deferred back to the Lieutenant's office for more information. Once the report was returned back to the UDC it had been over five working days. This was explained to you at your UDC hearing and again at your DHO hearing. This extension did not hinder your due process rights and a memo signed by the warden approving this extension is included with this packet.
The DHO found you committed the prohibited act of phone abuse, code 297.
The DHO bases this decision on the facts presented in the body of the written report. On March 06, 2017, at approximately 2:00 p.m., Officer W. Rivera monitored a telephone call made by McRae, Andre, Reg. No. 20831-057. McRae called phone number 786-546-6955 on 03-05-2017 at approximately 6:49 p.m. He spoke to a male individual. During the call McRae asked the male to call his mother. The male called his mother and was able to connect with her. McRae asked the male questions and the male relayed the information from one person to the other as a ...

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