1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TERRENCE EDWARD HAMMOCK, :

:

Petitioner :

:

v. :

:

: CIVIL NO. 4:CV-04-1981 

:

WARDEN JOHN NASH, ET AL., : (Judge McClure)

:

Respondents :

ORDER

January 17, 2006

Background

Terrence Edward Hammock (“Petitioner”) filed this pro se petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2241 while confined at the Schuylkill Federal

Correctional Institution, Minersville, Pennsylvania (“FCI-Schuylkill”). Hammock

claims entitlement to federal habeas corpus relief on the grounds that he was denied due

process during an institutional disciplinary hearing.

This Court previously concluded that an evidentiary hearing should be

conducted with respect to the Petitioner’s surviving claims that Disciplinary Hearing

Officer (“DHO”) Bittenbender improperly considered confidential source information

(“CSI”) and that the resulting finding of guilt was not supported by the evidence. By

Order dated November 7, 2005, this Court granted Petitioner Terrence Hammock’s

request for appointment of counsel. An evidentiary hearing is scheduled for January

Case 4:04-cv-01981-RPC-JVW Document 49 Filed 01/17/06 Page 1 of 4
1 The Respondents do not assert that their supplemental submissions alleviate

the need for an evidentiary hearing.

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31, 2006. 

On December 15, 2005, this Court granted the Respondents’ motion to expand

the record and accepted for consideration the attached declarations of DHO

Bittenbender and Investigating Officer J. Tomlinson. The Order also directed the

Respondents to submit for in camera review the confidential investigative report

provided to the DHO by Tomlinson. The only remaining pre-hearing determination

required of this Court is whether the in camera submission should be provided to

Petitioner and/or his counsel. 1

Discussion

The United States Court of Appeals for the Third Circuit has directed that when

a prison disciplinary tribunal's decision is based on information received from a CSI,

the two prong test announced in Gomes v. Travisano, 510 F.2d 537 (1st Cir. 1974),

must be satisfied in order to guarantee due process. Helms v. Hewitt, 655 F.2d 487 (3d

Cir. 1981), rev'd on other grounds, 459 U.S. 460 (1983).

In Gomes, the First Circuit held that:

1) The record must contain some underlying factual

information from which the Board can

reasonably conclude that the informant was

credible or his information reliable;

2) The record must contain the informant's

statement in language that is factual rather than

conclusionary and must establish by its

specificity that the informant spoke with personal

knowledge of the matters contained in such

statement.

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Gomes at 540.

Based on this Court’s review of the entire record, including the in camera

submission it remains our conclusion that there is still a material factual dispute as to

whether the DHO relied upon CSI evidence in rendering his decision. With respect to

the in camera submission, a portion of Tomlinson’s investigative report states that in

documentation provided by a correctional employee, the employee stated that an inmate

he spoke with had identified Hammock (via his nickname) as being responsible for the

stabbing in Unit 4B. See Record document no. 43, p. 3, ¶ 5. No other details

regarding the attack were provided. DHO Bittenbender acknowledges that he relied

upon said information in rendering his decision.

The investigative report contains information which could conceivably reveal the

identity of the inmate who provided the information set forth in ¶ 5. It also appears that

the summary of ¶ 5 set forth above may provide the Petitioner with sufficient

information to adequately pursue his present claims. Therefore, the in camera

submission will not be provided to the Petitioner at this time. See Henderson v.

Carlson, 812 F. 2d 874, 880 (3d Cir. 1987). However, if future proceedings

demonstrate the need for additional disclosure of the contents of the in camera

submission, this determination will be reconsidered. Consequently,

IT IS HEREBY ORDERED THAT:

1. The evidentiary hearing scheduled for January 31, 2006 will

proceed.

2. The Respondents’ in camera submission shall not be provided to

the Petitioner.

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 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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