The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
This is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 (Doc. 1). Kenneth Jay Raney, is a prisoner confined at USP-Marion and challenges the decisions of two prison disciplinary hearings wherein 7 (seven) days of his good time credits were revoked. Respondent filed a response to the petition (Doc. 11) and thereafter Raney filed a motion for summary judgment (Doc. 13).
Pursuant to 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Philip M. Frazier submitted a Report and Recommendation ("the Report") on November 24, 2008 (Doc. 15). The Report recommends that the Court deny Raney's 28 U.S.C. § 2241 petition for writ of habeas corpus (Doc. 1); deny Raney's motion for summary judgment (Doc. 13) and dismiss Raney's cause of action. Specifically, Judge Fraizer found that Raney failed to properly exhaust his administrative remedies, that he has not shown cause and prejudice for failure to properly exhaust his administrative remedies and that Raney cannot show that he was deprived of due process regarding the disciplinary hearings as he admitted that he engaged in the charged conduct.
The Report was sent to the parties with a notice informing them of their right to appeal by way of filing "objections" within ten days of service of the Report. To date, Raney filed objections to the Report (Doc. 16). Raney raises three objections: (1) that his appeal was timely, i.e., he did exhaust his administrative remedies; (2) that evidence and witnesses were withheld and (3) his request for protective custody was ignored after Unit Manager Wheeler recommended it.
Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P.72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id. Based on the pleadings and the applicable law, the Court adopts the Report.
Raney is currently incarcerated at United States Penitentiary in Marion, Illinois. From May 1, 2002 to April 25, 2007, Raney was incarcerated at the Federal Correctional Institution in Pekin, Illinois.*fn1 On November 13, 2002, a disciplinary report was filed that accused Raney of possessing a radio belonging to another inmate. A hearing was held before the Unit Disciplinary Committee ("UDC") on November 16, 2002. Raney told the UDC that he had borrowed another inmate's radio. At the hearing, the UDC found Raney guilty of the violation and sanctioned him to a loss of 15 days of commissary.
Thereafter in February 2003, Raney requested protective custody.*fn2 Pursuant to policy, the institution placed him in a special housing unit and interviewed the circumstances underlying the request. Suzanne Wheeler, R. Farlin and Dayna Buck all prepared reports. Wheeler and Buck also gathered supplemental information and prepared additional reports.
Raney remained in the special housing unit and the Special Investigative Services ("SIS") completed a threat assessment on May 27, 2003. At this time, Raney continued to claim that he had been threatened and that he needed protective custody. SIS determined that Raney's allegations could not be verified and agreed with the earlier investigation that his protective custody status could not be substantiated. SIS believed that Raney was attempting to manipulate a transfer to another institution due to possible debts he may have incurred from gambling. Therefore, SIS concluded that Raney should be considered an unverified protective custody case and ordered to return to general population.*fn3
In June 2003, Raney was accused of violating prison disciplinary rules by refusing an order to move to a cell in the general population compound. This charge did not result in a disciplinary ticket. On July 16, 2003, Raney was issued a disciplinary report accusing him of refusing to obey an order from a staff member to accept program assignment. Raney was notified of the charge that same day. In responding to the charge, Raney stated that it was true but indicated that his actions were justified by the threats. Further, he sought to prove that a threat to his safety had been explained and verified.
The UDC held a hearing on July 19, 2003. The UDC referred the matter to a disciplinary hearing officer ("DHO") for a decision. The UDC recommended disciplinary segregation and loss of good conduct time. That same day, Raney received notice of his rights at the hearing and notice of the hearing.
On August 20, 2003, the DHO held a hearing. At the hearing, Raney had a staff representative. The DHO considered a report stating that Raney was ordered to move to general population and that he refused to move. The DHO also considered Raney's argument that he had been threatened and that his need for protection had been demonstrated to and verified by prison staff members. Further, the DHO considered a statement made by an inmate witness claiming that Raney had been "pressed." The DHO elected not to call the other two witnesses because their written reports adequately described the events and that their conclusions resulted in the accusation and therefore were considered to be adverse to Raney's case.*fn4
The DHO found that Raney committed the act as charged. The DHO relied on the reporting officer's statement that Raney refused repeated orders to leave the special housing unit as well as the reports suggesting that the staff investigated but were unable to verify Raney's claim for protective custody. The DHO revoked 7 days of good conduct time, imposed 15 days of disciplinary segregation, and suspended commissary, telephone and visitation privileges for 365 days. The DHO informed Raney that some of the sanctions would be reconsidered if he ...