NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-3081

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MICHAEL STEVEN GORBEY,

Appellant

v.

WARDEN LEWISBURG USP

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3-20-cv-01364)

District Judge: Honorable Robert D. Mariani

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Submitted Pursuant to Third Circuit LAR 34.1(a)

September 26, 2022

Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges

(Opinion filed October 7, 2022)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PER CURIAM

Michael Gorbey, a federal inmate proceeding pro se and in forma pauperis, 

appeals the orders of the United States District Court for the Middle District of 

Pennsylvania denying his habeas petition filed under 28 U.S.C. § 2241 and his 

subsequent motion for reconsideration. For the following reasons, we will affirm.

I.

On March 14, 2020, while confined at Federal Correctional Institution Estill (“FCI 

Estill”), Gorbey received a written incident report charging him with “disruptive conduct 

most likely [the] use of drugs.” On March 23, Gorbey received notice that he was to 

appear before a Disciplinary Hearing Officer (“DHO”) regarding the charge. Upon 

receipt of the notice, he requested a staff representative and three witnesses. Gorbey was 

subsequently transferred to Lewisburg United States Penitentiary (“USP Lewisburg”), 

where he had a two-day hearing. During the hearing, Gorbey, who had the assistance of 

a staff representative, presented documentary evidence and contested the incident report, 

arguing that his disruptive actions were the result of being attacked by other inmates and 

reacting to his medication, rather than drug or alcohol use. The DHO denied Gorbey’s 

requests for witnesses after deeming their testimony either adverse or unnecessary. 

Gorbey was found guilty as charged, received a written report after the hearing, and was 

sanctioned with, among other things, loss of good time credits.1

1

In his pro se brief, Gorbey contends that a reduction of 41 days of good time credits 
3

Gorbey then filed a § 2241 petition claiming that his due process rights were 

violated because (1) he was not given 24 hours’ notice of the hearing; (2) the hearing 

took place on two separate dates; (3) the DHO was not an impartial arbiter; (4) he was 

denied the staff representative of his choice; (5) he was denied effective representation; 

and (6) he was prevented from submitting witness testimony. He also claimed that he 

was actually innocent and that the Bureau of Prisons (“BOP”) Code provision under 

which he was charged was unconstitutional.2 The District Court denied Gorbey’s 

petition, concluding that he was afforded due process, that there was “some evidence” to 

support the DHOs’ findings of guilt, see Superintendent v. Hill, 472 U.S. 457 (1985), and 

that the sanctions imposed were within the limits of 28 C.F.R. § 541.3. Gorbey 

appealed. After he appealed, Gorbey filed a motion for reconsideration, which the 

District Court denied. He subsequently filed a timely amended notice of appeal to also 

challenge the District Court’s denial of his motion for reconsideration.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). We 

review the District Court’s denial of habeas corpus relief de novo, and we review factual 

findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007). 

exceeded permissible limits, but we cannot consider that issue because it was not 

presented to the District Court. See Royce v. Hahn, 151 F.3d 116, 125 (3d Cir. 1998). 

2 Gorbey additionally alleged that his charge was against the weight of the evidence and 

that his misconduct charge was retaliatory, but he has abandoned those issues on appeal.
4

We review the denial of a motion for reconsideration for abuse of discretion. Max’s 

Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). We 

may affirm the District Court’s judgment on any basis supported by the record. See

Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

Federal prisoners have a liberty interest in statutory good time credits. See Wolff 

v. McDonnell, 418 U.S. 539, 557 (1974); see also 18 U.S.C. § 3624(b)(1); Vega, 

493 F.3d at 317 n.4. Thus, a prison disciplinary hearing that may result in the loss of 

good conduct time must provide the following due process safeguards, in a proceeding 

before an impartial decision-making body: (1) at least 24 hours of advance written notice 

of the charges, (2) an opportunity to call witnesses and present documentary evidence, (3)

assistance from an inmate representative if the charge involves complex issues or if the 

prisoner is illiterate, and (4) a written decision explaining the evidence relied upon and 

the reasons for the disciplinary action. See Wolff, 418 U.S. at 563–67.

We discern no error in the District Court’s denial of Gorbey’s petition. Contrary 

to Gorbey’s contentions, he was not entitled to receive notice exactly 24 hours before his 

hearing. See Wolff, 418 U.S. at 564 (holding that “no less than 24 hours[] should be 

allowed to the inmate to prepare for the appearance” (emphasis added)); 28 C.F.R. § 

541.8(c). Although he was not provided with additional notice when he was transferred 

to another facility, he had already been afforded ample time to “marshal the facts and 

prepare a defense” prior to his transfer. Id. Even if he were entitled to receive additional 
5

notice when he was transferred, Gorbey does not explain how he was prejudiced by the 

lack of notice. See Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992) (noting that harmless 

error analysis applies to cases concerning prison disciplinary proceedings). The same is 

true for his claim that he should have had another opportunity to choose a staff 

representative after he was transferred, given that the record indicates that he made no 

specific requests of his assigned staff representative. (ECF No. 23 at 25). His failure to 

do so also negates his claim that his staff representative did not provide him adequate 

assistance. 

As for Gorbey’s claim that the DHO violated his limited right to call witnesses, 

the District Court properly concluded that the DHO legitimately denied Gorbey’s witness 

requests on the grounds of relevance. See Wolff, 418 U.S. at 566 (1974); Scott v. Kelly, 

962 F.2d 145, 147 (2d Cir. 1992) (noting that a prisoner’s request for a witness can be 

denied on the basis of irrelevance). Gorbey did not dispute that he was acting erratically 

or displaying signs of intoxication; he disputed only the cause of his behavior, which he 

stated was an adverse reaction to his medication and being attacked by other inmates. 

Witnesses who did not observe the alleged attack and could not speak to the cause of his 

actions could not provide relevant testimony. We also conclude that the DHO’s decision 

to continue the proceeding and have “ex parte” contact with requested witnesses does not 

rise to the level of a due process violation. See Withrow v. Larkin, 421 U.S. 35, 47 

(1975); Robinson v. State of New Jersey, 806 F.2d 442, 450 (3d Cir. 1986). 
6

Finally, we are not persuaded that BOP Codes 112 or 199 are unconstitutionally 

vague. See Johnson v. United States, 576 U.S. 591, 594 (2015); Meyers v. Alldredge, 

492 F.2d 296, 306 (3d Cir. 1974) (rejecting the view that “the degree of specificity 

required of [prison] regulations is as strict in every instance as that required of ordinary 

criminal sanctions”). Contrary to Gorbey’s contentions, it is clear what the regulation 

prohibits, and 28 C.F.R. § 541.8(f) places limits on the DHO’s discretion by requiring the 

decision to be based on some facts and, where there is conflicting evidence, on the 

greater weight of the evidence.

Turning to the motion for reconsideration, we note that Gorbey had a proper basis 

for bringing the motion given that the District Court failed to address some of his claims, 

see Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010), but any error on the District 

Court’s part in denying it was harmless in light of our foregoing conclusions that 

Gorbey’s claims are without merit. 

We will accordingly affirm the judgment of the District Court.