United States District Court, S.D. Illinois
MICHAEL W. SMITH, Petitioner,
T.G. WERLICH, Respondent.
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE
an inmate in the Federal Correctional Institution in
Greenville, Illinois, brings this habeas corpus action
pursuant to 28 U.S.C. § 2241. In this action, he seeks
restoration of 41 days of good conduct credit and expungement
of a disciplinary ticket.
of the Rules Governing Section 2254 Cases in United States
District Courts provides that upon preliminary consideration
by the district court judge, “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to
notify the petitioner.” Rule 1(b) of those Rules gives
this Court the authority to apply the rules to other habeas
corpus cases. After carefully reviewing the Petition in the
present case, the Court concludes that Petitioner has a valid
cause of action and will order a response.
is a federal prisoner. (Doc. 1, p. 1). Petitioner states that
he shared a “tank” with 5 other inmates in
October 2016. (Doc. 1, pp. 8, 21). Marijuana was found inside
the bathroom air vent and Petitioner was disciplined for it,
losing 41 days of good conduct credit. (Doc. 1, pp. 6-8).
Petitioner alleges that the contraband was not found in his
locker or near his bed, and that it did not actually belong
to him. (Doc. 1, p. 6). He argues that his discipline was not
supported by “some evidence.” (Doc. 1, pp. 6-7).
disciplinary report attached to the Petition, # 2902444,
indicates that Petitioner was disciplined for violating Code
113, possession of any drug. (Doc. 1, p. 21). In addition to
the discipline described by the Petition, the disciplinary
report also indicates that Petitioner received 30 days
disciplinary segregation (suspended), 90 days loss of
commissary privileges; 90 days loss of visiting privileges;
and 90 days loss of phone privileges. (Doc. 1, p. 22).
Petitioner appealed the decision, but the Regional Director
rejected his appeal on the grounds that the contraband was
visible to anyone in the cell and that inmates are
responsible for keeping their cell free of contraband. (Doc.
1, p. 26).
petition seeking habeas corpus relief is appropriate under 28
U.S.C. § 2241 when challenging the fact or duration of a
federal prisoner's confinement. Preiser v.
Rodriguez, 411 U.S. 475, 490 (1973). A claim for
restoration of wrongfully revoked good conduct credit is
properly brought in a § 2241 action. Jones v.
Cross, 637 F.3d 841 (7th Cir. 2011); Valona v.
United States, 138 F.3d 693, 694 (7th Cir. 1998).
alleges that his due process rights were violated by his
prison disciplinary hearing. In Wolff v. McDonnell,
the Supreme Court set out the minimal procedural protections
that must be provided to a prisoner in disciplinary
proceedings. 418 U.S. 539, 556-572 (1974); see also
Hewitt v. Helms, 459 U.S. 460, 466 n.3 (1983). The
findings of the disciplinary tribunal must be supported by
some evidence in the record. Scruggs v.
Jordan, 485 F.3d. 934, 9471 (7th Cir. 2007) (quoting
Superintendent v. Hill, 472 U.S. 445, 455 (1985));
McPherson v. McBride, 188 F.3d 784, 786 (7th Cir.
1999). Courts are to apply a lenient standard when
determining “whether there is any evidence in
the record that could support the conclusion reached
by the disciplinary board.” See Webb v.
Anderson, 224 F.3d 649, 652 (7th Cir. 2000)(emphasis in
request for restoration of good conduct credit is properly
raised in this § 2241 Petition. Jones, 637 F.3d
841 (presenting due process claim); Waletzki v.
Keohane, 13 F.3d 1079 (7th Cir. 1994) (denial of good
time credits lengthened sentence and brought claim within
ambit of § 2241). Without commenting on the merits of
Petitioner's claims, the Court concludes that the
Petition survives preliminary review under Rule 4 and Rule
1(b) of the Rules Governing Section 2254 cases in United
States District Courts. The Court orders Respondent Werlich
to file a response.
IS HEREBY ORDERED that Respondent shall answer the
petition or otherwise plead within thirty days of the date
this order is entered. This preliminary order to respond does
not, of course, preclude the State from making whatever
waiver, exhaustion, or timeliness argument it may wish to
present. Service upon the United States Attorney for the
Southern District of Illinois, 750 Missouri Avenue, East St.
Louis, Illinois shall constitute sufficient service.
IS FURTHER ORDERED that pursuant to Local Rule
72.1(a)(2), this cause is referred to United States
Magistrate Judge Clifford J. Proud for further pre-trial
IS FURTHER ORDERED that this entire matter be
REFERRED to United States Magistrate Judge
Clifford J. Proud for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all
the parties consent to such a referral.
is ADVISED of his continuing obligation to
keep the Clerk (and each opposing party) informed of any
change in his whereabouts during the pendency of this action.
This notification shall be done in writing and not later ...