David Fiore v. Cameron Lindsay , 336 F. App'x 168 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-22-2009
David Fiore v. Cameron Lindsay
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-4785
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BLD-202 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4785
___________
DAVID W. FIORE,
Appellant
v.
WARDEN USP-CANAAN CAMERON LINDSAY
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 07-cv-498)
District Judge: Honorable Richard P. Conaboy
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 29, 2009
Before: McKEE, FISHER and CHAGARES, Circuit Judges
(Filed: June 22, 2009 )
___________
OPINION
___________
PER CURIAM
Appellant David Fiore, a pro se prisoner, appeals from the District Court's denial
of his habeas petition under 28 U.S.C. § 2241. For the reasons set forth below, we will
summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6.
I.
While Fiore was imprisoned at the United States Penitentiary in Waymart,
Pennsylvania (“USP-Canaan”), he filed the § 2241 petition at issue in this appeal.1
However, his claims arose from incidents which took place at the Federal Medical Center
in Fort Devens, Massachusetts (“FMC-Devens”), his previous place of confinement. In
the petition, Fiore raised four claims: 1) his due process rights were violated during
disciplinary proceedings related to Incident Report No. 1330650; 2) his due process rights
were violated during disciplinary proceedings related to Incident Report No. 1466880;
3) prison officials unlawfully subjected him to retaliation and harassment as a result of
those two incidents; and 4) during his administrative detention pending resolution of
Incident Report No. 1330650, prison officials failed to provide him with a complete copy
of the prison handbook and related materials in violation of Bureau of Prison (“BOP”)
policy.
As relief, Fiore sought to have the two disciplinary actions expunged from his
record and 27 days of good time credit restored. The District Court denied Fiore’s
petition after determining that his claims were either without merit or not cognizable on
federal habeas review. Fiore subsequently appealed the ruling.
1
While Fiore’s habeas petition was pending in the District Court, he was
transferred to the Stratford County Prison in Dover, New Hampshire.
2
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C.
§ 2253(a). A certificate of appealability is not required to appeal from the denial of
Fiore’s § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009). We
exercise plenary review over the District Court's legal conclusions, and review its factual
findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007).
III.
A. Due Process Claims
I. Incident Report No. 1330650
On April 11, 2005, Senior Officer Specialist Lieutenant A. Colon issued Incident
Report No. 1330650 (“IR 1330650") charging Fiore with fighting with another person in
violation of BOP disciplinary code 201. This misconduct charge stemmed from a January
15, 2005 altercation between Fiore and another inmate at FMC-Devens. On May 18,
2005, prison officials conducted an administrative hearing and, thereafter, ruled that Fiore
violated code 201. He was sanctioned to a 27-day loss of good time credit.
Fiore alleged that his due process rights were violated at various stages during the
disciplinary proceedings. Specifically, he claimed that Lieutenant Colon violated his
rights when he failed to: 1) read him his rights before taking his statement regarding the
incident; 2) record his statement; 3) allow him to sign a written version of his statement;
4) timely serve him with a copy of IR 1330650; and 5) issue IR 1330650 in a timely
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manner as required by BOP regulations. In addition, Fiore claimed that the Disciplinary
Hearing Officer assigned to his case (DHO Bracy) violated his rights by: 1) refusing his
request to dismiss the disciplinary charge for failure of correctional officer staff to follow
institutional policy; and 2) failing to “audio record” the administrative hearing.
It is well established that "prison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in such proceedings does not
apply." Wolff v. McDonnell, 418 U. S. 539, 556 (1974). The Supreme Court has,
however, recognized a set of minimum procedural protections that must apply to prison
disciplinary proceedings when, as in this case, a prisoner's good-time credit is at stake.
Specifically, when good-time credit is at stake, a prisoner is entitled to: 1) appear before
an impartial decision-making body; 2) twenty-four hour advance notice of the charges;
3) an opportunity to call witnesses and present documentary evidence; 4) assistance from
a representative; and 5) a written decision explaining the evidence relied upon. Id. at
563-71. "Revocation of good time does not comport with the minimum requirements of
procedural due process unless the findings of the prison disciplinary board are supported
by some evidence in the record." Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445,
454 (1985).
Upon review of the record, we agree with the District Court that Fiore received all
the process he was due during the disciplinary proceedings. The record reveals that Fiore
was given 24 hours notice of the charges against him in accordance with 28 C.F.R.
4
541.17(a); that he was provided the opportunity to call witnesses and present
documentary evidence in his defense; and that he was issued a written decision setting
forth the evidence relied on, and reasons for, the disciplinary action. See Wolff, 418 U.S.
at 563-67.
Furthermore, the DHO's findings were clearly supported by "some" evidence in the
record. In his report, DHO Bracy noted that his decision was based upon Lieutenant
Colon’s detailed incident report and a physician’s report dated January 15, 2005, which
revealed that Fiore sustained injuries consistent with the reported incident.
We agree with the District Court that this evidence is sufficient to support the
outcome of the hearing, and meets the requirements imposed by the Due Process Clause.
See Hill, 472 U.S. at 454.2
II. Incident Report No. 1466880
On May 13, 2006, Lieutenant Colon issued Incident Report No. 1466880 against
Fiore charging him with insolence toward a staff member in violation of BOP disciplinary
code 312. Following an administrative hearing, the DHO ruled that Fiore violated code
312. As a result, Fiore was sanctioned to 10 days of disciplinary segregation, three
months loss of commissary privileges, and 3 months loss of social telephone privileges.
2
We need not reach Fiore's allegations that the prison failed to follow certain other
BOP guidelines because, as discussed above, such failure will not result in a due process
violation as long as Fiore was provided with the process he is due under Wolff.
5
Again, Fiore claimed that his due process rights had been violated during the
administrative process.
The District Court correctly determined that this claim was not appropriate for
federal habeas review. While the Due Process Clause protects against the revocation of
good time credit, it does not provide the same level of protection against the other forms
of discipline that Fiore received. See Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir.
2002) (citing Sandin v. Conner, 515 U.S. 472, 486 (1995)). Based upon a review of the
undisputed record, Fiore was not sanctioned to a loss of good time credits in connection
with Incident Report No. 1466880. Furthermore, as the District Court aptly pointed out,
Fiore acknowledged in his habeas petition that the incident report could not be addressed
in a § 2241 petition. Accordingly, the District Court properly denied this claim.
B. Harassment and Retaliation Claims
Lastly, Fiore claimed that he was unlawfully retaliated against and harassed by
prison staff during his stay in FMC-Devens’ Special Housing Unit pending the
investigation of IR1330650. Specifically, Fiore claims that his mail was interfered with
and he was given a retaliatory job reassignment. He also claimed that he was ultimately
transferred from FMC-Devens to another correctional facility in retaliation for various
conflicts with prison staff.
We agree with the District Court that these claims are not cognizable in a § 2241
petition. They do not present a challenge to the fact or length of Fiore’s conviction, see
6
Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002), nor do they challenge the manner of
its execution, see Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 243 (3d Cir. 2005)
(indicating that while certain types of transfers may give rise to habeas claims, "a garden
variety prison transfer" would not).
As Fiore’s appeal presents no substantial question, we will summarily affirm. See
Third Cir. LAR 27.4; I.O.P. 10.6. Fiore’s motion to hold the case in abeyance is denied
as moot.
7