1 A “rubber glove fashioned packet” containing twelve (12) individually

wrapped pieces of paper containing heroin was found in the top drawer of a desk in

Petitioner’s cell. Id. at p. 4.

1

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

HUNG LIAN, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-05-2503

:

RONNIE HOLT, :

: (Judge McClure) 

:

Respondent :

MEMORANDUM AND ORDER

April 13, 2006

Background

Hung Lian (“Petitioner”), an inmate presently confined at the Schuylkill Federal

Correctional Institution, Minersville, Pennsylvania (“FCI-Schuylkill”), initiated this pro

se habeas corpus petition pursuant to 28 U.S.C. § 2241. Named as sole Respondent

is FCI-Schuylkill Warden Ronnie Holt. Service of the petition was previously ordered. 

Petitioner states that he is presently serving a 240 month term of incarceration

which was imposed by the United States District Court for the Eastern District of New

York. He states that on May 20, 2005, “a minuscule quantity of drugs were found in

Petitioner’s cell living area under the most suspicious of circumstances.” 1 Record

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2

 In support of his argument, Lian notes that there are several ongoing

investigations into staff misconduct at FCI-Schuylkill.

2

document no. 1, Attachment, p. 2. As a result, Lian was issued a misconduct report

charging him with possession of drugs. Following a hearing before Disciplinary

Hearing Officer (“DHO”) Kevin Bittenbender, Petitioner was found guilty of the charge

and issued various sanctions, including a loss of fifty-four (54) days of good time

credits.

Petitioner initially claims that the DHO’s finding of guilt was not supported by

the evidence because another prisoner has taken responsibility for the drugs. Lian next

asserts that since the packet of drugs was not dusted for fingerprints, an adequate

internal investigation was not undertaken by FCI-Schuylkill officials. Petitioner adds

that DHO Bittenbender failed to give proper consideration to the fact he did not have a

positive urine test. Furthermore, Lian argues that like other recent similar suspicious

events, the search of his cell was prompted by an anonymous dropped note.2 Thus,

he concludes that in light of the circumstances surrounding the search it is apparent

that the drugs were planted in his cell by correctional staff members. His final

argument is that the DHO Bittenbender, completely disregarded his testimony. 

Discussion

The Fourteenth Amendment of the United States Constitution provides in

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pertinent part: "No State shall . . . deprive any person of life, liberty, or property,

without due process of law . . . ." The Supreme Court has mandated a two-part

analysis of a procedural due process claim: first, "whether the asserted individual

interests are encompassed within the . . . protection of 'life, liberty or property[,]'" and

second, "if protected interests are implicated, we then must decide what procedures

constitute 'due process of law.'" Ingraham v. Wright, 430 U.S. 651, 672 (1977). If

there is no protected liberty or property interest, it is obviously unnecessary to analyze

what procedures were followed when an alleged deprivation of an interest occurred. 

Liberty interests protected by the Fourteenth Amendment may arise either from the

Due Process Clause itself or from state law. Meachum v. Fano, 427 U.S. 215, 223-26

(1976). 

 In Wolff v. McDonnell, 418 U.S. 539, 563-73 (1974), prisoners 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 in Wolff 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 Court held that a prisoner facing serious institutional sanctions such as a loss of

good time credits is entitled to some procedural protection before penalties can be

imposed. Id. at 563-71. 

Wolff set forth five requirements of due process in a prison disciplinary

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4

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 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 Inst. at Walpole v. Hill, 472 U.S.

445, 453-56 (1985). In that case, the Court held that there must be some evidence

which supports the conclusion of the disciplinary tribunal. The Court of Appeals for

the Third Circuit in Griffin v. Spratt, 969 F.2d 16, 19 (3d Cir. 1992), thereafter

recognized that the above due process requirements must be satisfied in a prison

disciplinary hearing.

In Sandin v. Conner, 515 U.S. 472, 480-84 (1995), the United States Supreme

Court reiterated that the Wolff due process safeguards must be provided when, as in

the instant case, the challenged disciplinary proceeding results in a loss of good time

credits. See also Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991) (a federal

prisoner has a constitutionally protected liberty interest in good time credit). Since

Lian was sanctioned to a loss of good time credits, his allegations relating to his

underlying disciplinary proceeding will be reviewed under the Wolff and Hill standards.

1. Staff Representation

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Wolff provides inmates the right to be provided with a representative, however,

it does not mandate that a prisoner has the right to be afforded a staff representative of

his choosing. It is noted that Lian’s present action does not allege that he was denied

staff representation at his DHO hearing. Moreover, the undisputed record provides

that Petitioner asked to be represented by a staff member at his hearing. The request

was approved and Counselor M. Barlow was appointed to represent the Petitioner. 

Barlow met with Lian to discuss the charge and was thereafter present at the prisoner’s

hearing before the DHO. 

2. Advance Notice/Written Decision

Under Wolff, it is required that an inmate accused of a disciplinary

infraction be provided with twenty four (24) hour advance written notice of the charges

against him. The present petition contains no allegation that the advance notice

mandate of Wolff was violated. Second, the undisputed record confirms, that

Petitioner received proper advance written notice of the charges against him. 

Wolff also directs that the factfinders must issue a written decision describing

the evidence relied upon and stating the rationale behind their decision. There is also

no contention that the fact finder, DHO Bittenbender, failed to issue a written decision. 

Moreover, the record contains a copy of Bittenbender’s written decision, a review of

which confirms that it satisfies the mandates of Wolff. Consequently, both of those

Wolff procedural safeguards were likewise satisfied.

3. Ability to Call Witness

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3 It is additionally noted that Petitioner has not provided this Court with any

exculpatory written statement from any FCI-Schuylkill inmate.

6

Wolff also includes a procedural safeguard which requires that an inmate facing

institutional disciplinary charges be granted an opportunity to call witnesses and

present documentary evidence. However, this privilege is not absolute. Specifically, a

prisoner’s request to present evidence may be denied if it would threaten institutional

security or correctional goals.

A review of the petition does not reveal any claim by Petitioner that he

requested, but was denied the ability to call a witness. Second, in a pre-hearing form

executed by Lian, the prisoner clearly indicated that he did not wish to have any

witnesses at his DHO hearing. In his present petition, Lian indicates that he can

provide a written statement from a fellow FCI-Schuylkill inmate who will take

responsibility for the drugs. However, there is no allegation by Lian that he attempted

but was denied permission by DHO Bittenbender to introduce this statement during his

disciplinary hearing.3 Based on the above discussion, this prong of Wolff was also

satisfied

4. Sufficiency of the Evidence

A federal court has no duty to independently assess the witnesses’ credibility

or weigh the evidence, but only to see that there was some evidence or basis in fact to

support the finding of guilt. Hensley v. Wilson, 850 F.2d 264 (6th Cir. 1988). The

Sixth Circuit Court of Appeals in Hensley added that a disciplinary tribunal's failure to

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7

explain why alibi testimony was not found credible did not constitute a due process

violation. See id. at 278. Based upon an application of the Hensley rationale to the

present case, DHO Bittenbender did not violate Petitioner’s due process rights by not

accepting his general, wholly unsupported statement that he was set up.

In Okocci v. Klein, 270 F.Supp. 2d 603 (E.D. Pa. 2003), the district court

addressed a due process claim raised by an inmate in connection with a prison

disciplinary proceeding. The Eastern District concluded that the denial of the

prisoner’s request that a fingerprint analysis be conducted on a shank found in his cell

was not a procedural due process violation. The Court stated:

“[a]ccording to this argument, Plaintiff would essentially have a constitutional

right to have the prison prepare evidence for him. This procedural due process

right is not established in the law.”

Id. at 610.

Similarly in Griffin, the Third Circuit Court of Appeals held that a hearing

examiner’s finding of guilt which was premised on a correctional officer’s nonscientific testimony that a confiscated beverage was fermented was constitutionally

acceptable. Griffin, 969 F.2d at 22. The Court of Appeals added that a failure to

preserve the allegedly fermented beverages, potentially useful evidence, did not violate

due process. Based on the standards set forth above, this Court concludes that the

failure of FCI-Schuylkill officials to dust for fingerprints on the confiscated packet

Case 4:05-cv-02503-JFM-JVW Document 6 Filed 04/13/06 Page 7 of 11
4 See Record document no. 1, Attachment, p. 6.

8

confiscated from Lian’s cell4 or conduct a more detailed investigation into the origin of

the anonymous dropped note did not violate the Petitioner’s due process rights.

The findings in a disciplinary hearing are not arbitrary or capricious if there

exists a basis in fact to support a disciplinary hearing officer's findings. Edwards v.

White, 501 F. Supp. 8 (M.D. Pa. 1979). Certainly, the evidence cited by DHO

Bittenbender’s written decision provided such a basis in this case. Specifically, it is

undisputed that a plastic glove containing twelve individually wrapped pieces of a

brown powdery substance was found in the top desk drawer in the Petitioner’s cell. 

According to undisputed documents submitted by the Respondent, the package was

taped underneath the desk top, thus, undermining any contention that the packet was

left in plain view so that it could be easily discovered. See Record document no. 4, 

10. The substance was field tested and determined to be heroin. 

It is undisputed that under BOP regulations prisoners are responsible for the

contents of their cells and that a quantity of heroin was found hidden in the top desk

drawer of Lian’s cell. Furthermore, the fact that Petitioner’s urine test had a negative

result, does not compel the conclusion that he was not in possession of heroin, only

that the inmate had not recently injected or otherwise ingested heroin. It is additionally

noted that Petitioner has not provided this Court with a motive or any supporting facts

in support of his vague claim of being set up. Moreover, Lian has also not submitted

Case 4:05-cv-02503-JFM-JVW Document 6 Filed 04/13/06 Page 8 of 11
5 It is additionally noted that there is no indication that the Petitioner ever

sought reconsideration by the BOP of his disciplinary sanctions based upon the

alleged written acceptance of responsibility by another FCI-Schuylkill inmate. 

Consequently, the BOP cannot be deemed to have acted improperly for not

considering purported exculpatory evidence which was never presented for its

consideration.

9

the purported written statement of an unidentified fellow FCI-Schuylkill inmate who

has allegedly admitted to ownership of the confiscated heroin at issue herein.

Based on the foregoing discussion, especially Petitioner’s admission that twelve

(12) packets of heroin were found in the top drawer of a desk located in his cell, it is

apparent that there was some evidence or basis in fact to support DHO Bittenbender’s

finding of guilt as required under Hill. Furthermore, the actions and decisions taken

during the course of the disciplinary proceeding which is the subject of this action

satisfied Lian's federal due process rights.5

5. DHO Sanctions

Petitioner contends that it was improper for DHO Bittenbender to impose

multiple excessive separate sanctions against him. Specifically, Lian was sanctioned to

a 54 day loss of good time credits, a 5 year loss of phone privileges, a 5 year loss of

commissary privileges, 60 days of disciplinary segregation and a 5 year loss of

visitation privileges. Respondent counters that since Petitioner’s offense fell within the

Greatest Severity Category, the sanctions imposed were permissible under BOP

policy.

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The Petitioner was found guilty of a Code 113 possession of drugs. Under

applicable BOP regulations, a 100 level offense is a prohibited act within the greatest

severity category. As such, it was permissible for DHO Bittenbender to impose the

multiple sanctions which Lian received. See 28 C.F.R. § 541.13(a)(1). This claim will

be dismissed as meritless. 

6. Monetary Damages/Injunctive Relief

Lian’s petition in part seeks compensatory wage reimbursement as well as

injunctive relief, including the initiation of an investigation into other FCI-Schuylkill

incidents involving dropped handwritten notes. Such requests are not properly raised

in a habeas corpus action. 

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court indicated that a

constitutional cause of action for damages does not accrue until a prisoner proves that

his challenge to the length of his sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal. It has also been

recognized that a habeas corpus petition is generally limited to claims challenging either

the fact or duration of a prisoner’s sentence or confinement. Preiser v. Rodriquez,

411 U.S. 475, 494 (1973); Telford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993), cert.

denied, 510 U.S. 920 (1993). 

Pursuant to those well-settled standards, “habeas corpus is not an appropriate

or available federal remedy" with respect to the claims for compensatory damages and

the request that an investigation be conducted into other incidents which purportedly

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took place at FCI-Schuylkill. See Linnen v. Arainis, 991 F.2d 1102, 1109 (3d Cir.

1993); Hahn v. Larkins, Civil No. 97-0822 (M.D. Pa. June 30, 1997) (Rambo, C.J.);

Lee v. Larkins, Civil No. 97-1095 (M.D. Pa. July 25, 1997) (Kosik, J.). The petition

for writ of habeas corpus will be denied. Consequently, 

IT IS HEREBY ORDERED:

1. The petition for writ of habeas corpus is denied.

2. The Clerk of Court is directed to close the case.

3. Based upon the Court’s determination herein, there is no

basis for the issuance of a Certificate of Appealability.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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