DANIEL M. KIRK, Petitioner,
N.C ENGLISH, Respondent.
MEMORANDUM AND ORDER
David R. Herndon, Chief Judge United States District Court
Before the Court is a Report and Recommendation (“R&R”) (Doc. 9), issued on February 20, 2013, by United States Magistrate Judge Donald G. Wilkerson recommending dismissal of petitioner’s Section 2241 petition for a writ of habeas corpus (Doc. 1) with prejudice. Petitioner was disciplined for an incident that occurred while petitioner was incarcerated at the Federal Prison Camp Manchester in Kentucky. Two officers reported that they observed petitioner masturbating in the prison yard. After a Disciplinary Hearing Officer (“DHO”) heard testimony from the officers and several other witnesses, he found that petitioner’s statement was not credible, his witnesses were not paying attention, and the statements of the officers were credible.
Petitioner is held at Federal Correctional Institution Marianna, in Florida. He objects to the R&R, claiming: (1) he was not given a written report of Officer Barnett’s memo at the hearing; (2) the “DOJ” did not timely respond to his “Admin Remedy”; (3) the DHO misrepresented his testimony; (4) the incident as reported made no sense; (5) Officer Melissa Langford was mistaken as to what she observed; (6) petitioner’s inability to recall the title of the book he claimed to be reading does not negate his version of the incident; and (7) the chaplain and the DHO’s stating that inmates will lie for each other. The remaining two points petitioner claims in his objection to the R&R are statements supporting his claims above. Petitioner argues that the Court should restore his good conduct credit and expunge the record of the incident.
In the context of a prison disciplinary hearing, due process requires that the prisoner receive: (1) written notice of the claimed violation at least 24 hours before the hearing; (2) an opportunity to call witnesses and present documentary evidence (when consistent with institutional safety) to an impartial decision-maker; and (3) a written statement by the fact-finder of the evidence relied on and the reasons for the disciplinary action. Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011).
Officer Barnett’s Memorandum
Petitioner’s claim that he did not receive Officer Barnett’s memorandum regarding the incident before the DHO hearing is without merit. Petitioner is entitled to notice of his claimed violations at least 24 hours in advance of the hearing. The record reflects that petitioner was given an advanced written notice of the charge on May 25, 2010, the date of the incident. Petitioner’s hearing in front of the DHO was held on June 23, 2010. Nothing in Officer Barnett’s brief memorandum would have exonerated petitioner. It merely concurs with the written notice of the charges petitioner received. Thus, petitioner’s not receiving Officer Barnett’s memorandum before the hearing did not violate his due process rights.
Claimed Delay in Receiving the Government’s Response
Petitioner also objects to the R&R because he claims he did not receive a copy of the “Admin Remedy” within the allotted time limits. Although the DHO’s written findings were not issued until approximately six months after petitioner’s hearing, petitioner fails to show any prejudice he suffered as a result. Courts have held that absent a showing of prejudice, a delay in providing a prisoner a written report following a disciplinary hearing does not rise to the level of a due process violation. See e.g. Staples v. Chester, 2010 WL 1225826 (10th Cir. March 31, 2010); and Cook v. Warden, 241 Fed.Appx. 828, 829 (3rd Cir. 2007).
In this case, petitioner was able to administratively appeal the charges. Moreover, he does not claim that he was at all prejudiced by this delay. The amount of good conduct time at issue here is less than a month, and petitioner’s projected release date is nearly eighteen years in the future. Thus, this claim is without merit.
The DHO’s Misrepresentation of Petitioner’s Testimony
Additionally, petitioner objects to the R&R by claiming that the DHO misrepresented petitioner’s testimony during the hearing. However, the Court’s review of the DHO’s report does not support this contention. In his filings, petitioner consistently claims he was flipping the pages of a book quickly, looking for maps or pictures. The DHO’s report is in agreement with petitioner’s account to this Court of what he was doing at the time the two officers testified they observed him engaging in a sex act. Therefore, the Court finds the DHO did not misrepresent petitioner’s testimony.
The Sense of the Incident
In addition to his objections above, petitioner claims that, in the middle of the afternoon in the recreation yard, it makes no sense that he would stop talking to his fellow inmates and go sit down and start masturbating. It is not the Court’s function to determine the logic of petitioner’s ...