IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH BUTLER, :

:

Petitioner :

: CIVIL NO. 4:09-CV-2224

:

v. : Hon. John E. Jones III

 :

:

WILLIAM SCISM, :

:

Respondent :

MEMORANDUM

 June 3, 2010

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Kenneth Butler (“Petitioner” or “Butler”), an inmate presently 

confined at the Allenwood Low Security Correctional Institution (“LSCI Allenwood”)

in White Deer, Pennsylvania, commenced the instant action pro se by filing a Petition

for Writ of Habeas Corpus (“Petition”) under the provisions of 28 U.S.C. § 2241. 

(Doc. 1.) Butler alleges that he was denied due process during disciplinary

proceedings that were conducted while he was an inmate at the Otisville Federal

Correctional Institution (“FCI Otisville”) in Otisville, New York. (See id.) Following

those proceedings, the Disciplinary Hearing Officer (“DHO”) found Butler guilty of

the charges against him and imposed sanctions, including the loss of fifty-four (54)

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days of good conduct time, disciplinary segregation, and the loss of visiting and

commissary privileges. As relief, Butler requests the restoration of his good conduct

time, reinstatement of his visiting and commissary privileges, and expungement of the

incident from his disciplinary record.

Service of the Petition was directed by Order dated December 3, 2009. (Doc.

5.) On December 24, 2009, Respondent filed a Response (Doc. 6) and supporting

exhibits1

 (Doc. 6-2.) On January 4, 2010, Petitioner filed a Reply. (Doc. 7.) 

Accordingly, the Petition is fully briefed and ripe for review. 

I. FACTUAL BACKGROUND

On November 15, 2008, while Butler was an inmate at FCI Otisville, Mr. 

Lincoln, Cook Supervisor, conducted a search of the “A” side cubes in the prison

camp. (Doc. 6-2 at 4 ¶ 11, Incident Report; Doc. 6-2 at 12 § V, DHO Report.) While

in cube number seventeen, and searching Butler’s locker, Lincoln found two pairs of

safety glasses, one half dozen onions, one half dozen green peppers, and a calculator

without an identification number. (See Doc. 6-2 at 4, 12.) Lincoln also found a pair

of shoes, which Butler identified as his shoes. (See id.) Lincoln found hidden in the

1

Respondent submitted the Declaration (Doc. 6-2 at 3) of D. Weber, a Paralegal Specialist at

the United States Penitentiary at Lewisburg, Pennsylvania, who has access to Bureau of Prisons’

inmate records and files, and who verified that the copies attached to the Declaration of the incident

report Petitioner received on November 16, 2008 (id. at 4-10), and the DHO’s Report from

Petitioner’s November 24, 2008 hearing (id. at 11-13), are true and accurate to the best of Weber’s

knowledge.

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shoes six yellowish pills that were wrapped in plastic, then wrapped in a paper towel,

and further wrapped in more plastic. (See id.) The incident report prepared by

Lincoln indicates that further analysis of the pills by BOP staff member Henwood

indicated the presence of amphetamines. (See id. at 4.) In a Memorandum dated

November 23, 2008, Activities Lieutenant B. Henwood provides the following

account regarding the testing of the pills:

On November 15, 2008 at approximately 2:00pm Food Service Foreman

Mr. Lincoln brought to the Lieutenant’s Office items he had found during

a shakedown at the Camp that he thought may be drugs. Specifically 6

yellowish pill / capsule type items without any label or marking on them. 

These items were placed in the SIS Evidence Locker in the Lieutenant’s

Office until a NIK Test could be conducted on them.

On November 16, 2008 at approximately 8:45am these items were

removed from the SIS Locker and tested utilizing the NIK Test. The

items tested positive for AMPHETAMINES.

(See id. at 6, Henwood Memo.) 

An incident report, which charged Butler with violations of Code 113 for

Possession of Narcotics Not Prescribed by Medical Staff and Code 305 for Possession

of Anything Not Authorized, was delivered to Butler by Lieutenant Henwood on

November 16, 2008 at 12:15 p.m. (See id. at 4 ¶¶ 10, 14-16.) On November 17, 2008,

Butler was seen by the Unit Disciplinary Committee. (See id.

¶¶ 17-21.) The Committee referred the matter to the DHO. (See id.) Butler’s

disciplinary hearing took place on November 24, 2008. (See id. at 11.) The DHO

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found that Butler had committed the prohibited act of Possession of Narcotics Not

Prescribed by Medical Staff, in violation of Code 113, and sanctioned Butler to a

disallowance of fifty-four (54) days of good conduct time, thirty (30) days of

disciplinary segregation, eighteen (18) months loss of commissary privileges, eighteen

(18) months loss of visiting privileges, and eighteen (18) months Immediate Family

Only Visiting to commence upon completion of the previous sanctions. (See id. at 12-

13, §§ IV-VI.) 

 The DHO also found that Butler had committed the prohibited act of 

Possession of Anything Not Authorized, in violation of Code 305, and sanctioned him

to “15 Days Disciplinary Segregation - Suspended Pending 180 Days Clear Conduct.” 

(See id. at 13 § VI.) The DHO provided the following explanation of his findings:

Specific evidence relied on to support this finding is the incident report

written by Mr. Lincoln, Cook Supervisor. He states that on November

18, 2008, at approximately 1:30 p.m., he conducted a random search of

your Cube, #17. In your locker, he discovered two pairs of safety

glasses, a half dozen onions, a half dozen peppers and a calculator

without any identification number. He also discovered six yellowish pills

wrapped in plastic and paper towels. These pills were found in your

shoes. In his memorandum, Acting Lt. Henwood stated he tested the pills

and they were positive for Amphetamines. You offered the following as

your defense: The incident report is not true. I was in my cube and Mr.

Lincoln came down. I would have to get rid of it if it was mine. Mr.

Lincoln was always telling me I was next to go from the Camp. I had

three green peppers, a calculator and sunglasses from my job. The DHO

asked if Mr. Lincoln asked if they were your boots. You said he asked

what side of the cube you kept your boots on and you told him the left

side. The DHO asked if that was the side the boots were with the pills in

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them. You said it was. When asked, you said you received the peppers

from another inmate to hold. 

Based on the incident report, your statement and supporting

documentation, the DHO has given greater weight to the written report

from staff. You admitted you possessed the peppers you received from

another inmate. You also admitted the boots he searched were yours. 

Inmates are responsible for all contraband found in their cells and

property. The DHO finds you have committed Prohibited Act 113 -

Possession of Narcotics and Code 305 - Possession of Anything Not

Authorized.

(See id. at 12 § V.)

II. DISCUSSION

Butler alleges that he was denied due process in the disciplinary proceedings 

that were conducted at FCI Otisville because there was insufficient evidence to

support the DHO’s finding that Butler was guilty of the charged offenses. (See Doc. 1

at 3-6.) Because Butler’s sanctions included the revocation of fifty-four (54) days of

good conduct time, and thus the disciplinary hearing impacted the duration of his

confinement, his claim is properly before this Court in the context of a Petition filed

under 28 U.S.C. § 2241. 

 The Due Process Clause of the Fifth Amendment of the Constitution of the 

United States provides: “No person shall . . . be deprived of life, liberty, or property,

without due process of law.” U.S. Const. amend. V. Federal inmates possess a liberty

interest in good conduct time. See Wolff v. McDonnell, 418 U.S. 539, 555-57 (1974);

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Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991). When a prison disciplinary

hearing may result in the loss of good conduct time credits, due process requires that

the prisoner receive the following due process protections: (1) written notice of the

claimed violation at least twenty-four (24) hours in advance of the hearing; (2) an

opportunity to call witnesses and present documentary evidence in his or her defense

when doing so would not be unduly hazardous to institutional safety or correctional

goals; (3) aid in presenting a defense if the inmate is illiterate; (4) an impartial

tribunal; and (5) a written statement by the factfinder as to evidence relied on and

reasons for the disciplinary action. See Wolff, 418 U.S. at 564.

In the instant case, the incident report was served on Butler on November 16,

2008, and his disciplinary hearing took place on November 24, 2008. (See Doc. 6-2 at

4 ¶¶ 14-16; at 11.) Therefore, he clearly was provided with more than twenty-four

(24) hours notice of the charges against him. 

Butler also was given the opportunity to call witnesses and indicated in advance

of the hearing that he wished to call inmate Bernard to testify that he observed Mr

Lincoln carrying items from another cell into his cell. (See id. at 9, 12.) However,

Butler also was advised that the DHO would call witnesses who are determined to

have information relevant to the charges. (See id. at 9.) In his Report, the DHO

indicates that he denied Butler’s request to call Bernard on the basis that Bernard’s

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testimony was not relevant. (See id. at 12.) Specifically, when the DHO asked Butler

what items Bernard allegedly saw Lincoln carrying, Butler responded that Bernard

would testify that he saw Lincoln carrying vegetables when he went into Butler’s cell. 

(See id.) Because Butler already had admitted that he possessed peppers, the DHO

determined that, even if it were true that Lincoln was carrying vegetables, “it wouldn’t

have an impact on this incident report.” (See id.) Denying Butler the opportunity to

call inmate Bernard as a witness does not constitute a violation of due process as it is

evident that the testimony Butler wanted to elicit from Bernard was not relevant to

defending the charges that he possessed the pills found by Lincoln. 

 Butler also was advised in advance of the hearing that he would have 

the opportunity to present documentary evidence, but he did not do so at the hearing. 

(See id. at 9, 12 ¶ D.) Further, Butler was afforded an opportunity to have a staff

representative, and he chose to waive this right. (See id. at 9, 11-12.) Finally, Butler

does not argue, and there is no indication from the record, that the DHO was impartial,

particularly in light of the fact that the DHO provided a thorough explanation of the

specific evidence he relied on in finding Butler guilty of the charges, as well as for the

sanctions that were imposed. (See id. at 12-13.) Butler also was notified of the

findings, the evidence relied on, and reasons for sanctions, and was provided with a

copy of the DHO Report. (See id. at 13.) He also was notified of his right to appeal. 

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(See id.) Accordingly, we find that Butler was afforded all of the due process

protections required by Wolff. 

In his Petition and Reply, Butler challenges the sufficiency of the evidence

relied on by the DHO in finding that he was guilty of the charges of Possession of

Narcotics Not Prescribed by Medical Staff and Possession of Anything Not

Authorized. (See Doc. 1 at 4-6; Doc. 7 at 1-2.) Butler contends that there was

insufficient evidence to support the DHO’s findings because he based them on

unreliable evidence. (See Doc. 1 at 5-6; Doc. 7 at 1-2.) Specifically, Butler alleges

that the incident report is unreliable because the writer of the report failed to identify

the type of testing equipment that was used to analyze the pills that were found to

contain amphetamines. (See id.) Butler also argues that the DHO findings are not

supported by sufficient evidence because he did not review any service record for the

equipment that was used to test the pills or the qualifications of the person who

performed the testing. (See Doc. 1 at 6; Doc. 7 at 1-2.) 

Where the due process requirements of Wolff are met, as is the case here, 

the decision of the hearing examiner will be upheld if there is “some evidence” to

support the decision to revoke good time credits. Superintendent v. Hill, 472 U.S.

445, 455 (1985); see also Young, 926 F.2d at 1402-03 (applying Hill standard to

federal prisoner due process challenges to prison disciplinary proceedings). The

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determination of whether the standard is satisfied “does not require examination of the

entire record, independent assessment of the credibility of witnesses, or weighing of

the evidence. Instead, the relevant question is whether there is any evidence in the

record that could support the conclusion reached by the disciplinary board.” Hill, 472

U.S. at 455. Under Hill, judicial review of a prison disciplinary decision is limited to

ensuring that the prisoner was afforded certain procedures, the action against him was

not arbitrary, and that the ultimate decision has some evidentiary support. Id. at 457;

see also 28 C.F.R. § 541.17(f) (requiring that the DHO's decision be based upon at

least some facts and, if there was conflicting evidence, to be based on the greater

weight of the evidence).

 Although he now attempts through the instant Petition to challenge the reliability 

of the testing that was performed to ascertain that the pills contained amphetamines,

Butler made no attempt to present that challenge at the time of the hearing through his

statement or through the presentation of evidence. Instead, Butler stated that the incident

report was not true. Moreover, the DHO did not rely solely on the Incident Report in

reaching his findings. His findings also were supported by Butler’s own admissions that

the boots that were searched and in which the pills were found were his, and that he

possessed the peppers that he claimed he was holding for another inmate. In considering

Butler’s statements at the time of the incident and at the hearing, as well as the other

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evidence, as summarized in the Factual Background section, supra, including the incident

report written by Mr. Lincoln, and the supporting documentation, consisting of

Lieutenant Henwood’s Memorandum and digital photograph of the pills, glasses, and

calculator, we conclude that there was “some evidence” to support the DHO's decision. 

As a result, we find that Butler’s claim that his right to due process was violated because

there was insufficient evidence to support the DHO’s finding of guilt lacks merit. 

III. CONCLUSION

Because Butler was afforded all of the due process protections required by Wolff

and there was “some evidence” to support the DHO’s findings, Butler is not entitled to

habeas relief, and the Petition will be denied. An appropriate Order will enter.

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