IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN LOUIS CLARK, : No. 4:CV-05-0031

:

Petitioner, : Petition filed 01/06/05

:

v. : 

:

WARDEN JOSEPH V. SMITH, : (Judge Muir)

:

Respondent : (Magistrate Judge Mannion)

ORDER

November 16, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On January 6, 2005, Petitioner Brian Louis Clark, an inmate

at the United States Penitentiary at Allenwood, in White Deer,

Pennsylvania, initiated this action by filing a habeas corpus

petition pursuant to 28 U.S.C. § 2241. He is proceeding pro se

and in forma pauperis. Clark alleges that his due process rights

were violated as a result of the manner in which he was found

guilty in prison disciplinary proceedings of the following

offenses: destruction of government property (on two separate

occasion), threatening a staff member, and assault. The sole

respondent is the warden of the United States Penitentiary at

Allenwood. 

The Clerk of Court assigned responsibility for this case to

us but referred it to United States Magistrate Judge Malachy E.

Mannion for preliminary consideration. On October 21, 2005,

Magistrate Judge Mannion issued a report in which he recommends

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that Clark’s petition be denied because Clark’s disciplinary

proceedings included all of the required procedures. 

The time allowed for the parties to file objections to the

Report and Recommendation expired on November 7, 2005, and to

this date no objections have been filed. When no objections are

filed to the report of a Magistrate Judge, we need only review

that report as we in our discretion deem appropriate. Thomas v.

Arn, 474 U.S. 145, 151-52 (1985).

 Clark’s claims arise from two incident reports. In the

first (number 1241808) Clark was charged on July 14, 2004, with

destruction of government property for removing strands of

threads from the mattresses in his cell. Clark was the only

inmate housed in that cell. The second incident report (number

1240678) charged Clark with threatening a staff member, assault,

and destruction of government property. According to that

report, on July 14, 2004, after a staff member served Clark a

tray of food, Clark threw the tray back through the slot in his

cell door in an attempt to hit the staff member, Clark ripped his

book shelf off the wall of his cell and threw the shelf against

the cell door, and yelled “It is on! I’ll get all of you.”

Because of Clark’s violent and unruly behavior, shortly

after the incident involving the food tray five staff members

placed Clark in hand and foot restraints and transported him to a

holding cell. He was not returned to his housing unit until July

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17, 2004. Clark received notice of incident report number

1240678 on that date. The following day he received notice of

incident report 1241808. 

The initial hearing on report number 1240678 was held on

July 18, 2004. The first hearing on report number 1241808 was

held on July 29, 2004. Clark refused to participate in those

hearings. After conducting additional hearings on the incident

reports, a Disciplinary Hearing Officer imposed the following

sanctions: 1) for the offense concerning the mattress,

disallowance of 27 days of good conduct time, 15 days in

disciplinary segregation, loss of 60 days of commissary

privileges, and the payment of restitution in the amount of

$160.00; 2) for threatening a staff member, disallowance of 27

days of good conduct time, 15 days in disciplinary segregation,

loss of 90 days of visiting privileges; 3) for the assault,

disallowance of 27 days of good conduct time, 15 days in

disciplinary segregation, loss of 90 days of telephone

privileges; and 4) disallowance of 27 days of good conduct time,

15 days in disciplinary segregation, loss of 90 days of

commissary privileges, and the payment of restitution in the

amount of $198.16.

Clark’s commissary account was frozen until the restitution

was paid in full and he was advised of his appeal rights. He

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pursued all of his administrative remedies and the Disciplinary

Hearing Officer’s conclusions and sentences were upheld.

Based on those facts, Clark challenges the adequacy of the

notice he received concerning his hearings, and the sufficiency

of the evidence used to discipline him.

In Wolff v. McDonnell, 418 U.S. 539, 563-573 (1974), where

the plaintiffs were deprived of good time credits as a severe

sanction for serious misconduct, the Supreme Court held that such

inmates have various procedural due process protections in a

prison disciplinary proceeding. The Supreme Court recognized

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." Id. at 556. Nonetheless, the

Supreme Court held that a prisoner facing serious institutional

sanctions is entitled to some procedural protection before

penalties can be imposed. Id. at 563-71. 

The Supreme Court set forth five requirements of due process

in a prison disciplinary proceeding: (1) the right to appear

before an impartial decision-making body; (2) twenty-four hour

advance written notice of the charges; (3) an opportunity to call

witnesses and present documentary evidence, provided the

presentation of such does not threaten institutional safety or

correctional goals; (4) assistance from an inmate representative

if the charged inmate is illiterate or if complex issues are

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involved; (5) a written decision by the fact finders as to the

evidence relied upon and the rationale behind their disciplinary

action. Id. 

An additional procedural requirement was set forth in

Superintendent, Massachusetts Correctional Institution at Walpole

v. Hill, 472 U.S. 445, 453-456 (1985). In that case, the Court

held that there must be “some evidence” which supports the

conclusion of the disciplinary tribunal. 

Our review of the file confirms Magistrate Mannion’s

conclusions that 1) the disciplinary hearings at issue in this

case provided Clark with all of the procedural requirements set

forth in Wolff v. McDonnell, and 2) the Disciplinary Hearing

Officer’s decisions were based on sufficient evidence existed to

discipline Clark, as required by Hill. 

Magistrate Judge Mannion’s Report and Recommendation is free

from error and no objections have been filed to it. For those

reasons we will adopt the Report and Recommendation as our own

and deny Clark’s habeas corpus petition.

NOW, THEREFORE, IT IS ORDERED THAT:

1. The Report and Recommendation of Magistrate Judge

Mannion filed on October 21, 2005, is adopted in toto.

2. Clark’s petition for a writ of habeas corpus (Document

1) is denied.

3. The Clerk of Court shall close this case. 

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4. Any appeal from this order will be deemed lacking in

probable cause and a certificate of appealability will

not issue.

 s/Malcolm Muir 

 MUIR, U.S. District Judge

MM:ga

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