UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANGEL L. RIVERA, : No. 4:CV-04-1117

:

 Petitioner : Petition Filed 05/24/04 

:

vs. : 

:

S.A. HOLENCIK, Warden, : (Judge Muir)

: 

Respondent : (Magistrate Judge Smyser)

ORDER

June 2, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The Clerk of Court assigned this habeas corpus petition to

us and referred it to Magistrate Judge J. Andrew Smyser for

preliminary consideration. On October 28, 2004, the Magistrate

Judge issued a report recommending that the petition be denied

and the case closed. We initially adopted that Report and

Recommendation by order dated November 30, 2004, but we

subsequently vacated that order after Petitioner Angel L. Rivera

represented to us that he had never received a copy of the Report

and Recommendation. We then granted Rivera a number of

extensions of time to file objections to the Report and

Recommendation.

On April 26, 2005, Rivera timely filed his objections. 

Despite the fact that no separate brief was filed in support of

Rivera’s objections, on May 11, 2005, Respondent S.A. Holencik

filed a brief in opposition to Rivera’s objections. The time

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allowed for Rivera to file a reply brief expired on May, 31,

2005, and to this date no such brief has been filed. Rivera’s

objections are ripe for disposition.

When objections are filed to a report of a magistrate judge,

we make a de novo determination of those portions of the report

or specified proposed findings or recommendations made by the

magistrate judge to which there are objections. United States v.

Raddatz, 447 U.S. 667 (1980); 28 U.S.C. §636(b)(1); M.D. Pa.

Local Rule 72.31. Furthermore, district judges have wide

discretion as to how they treat recommendations of the magistrate

judge. Id. Indeed, in providing for a de novo review

determination rather than a de novo hearing, Congress intended to

permit whatever reliance a district judge, in the exercise of

sound discretion, chooses to place on a magistrate judge’s

proposed findings and recommendations. Id. ;See also Mathews v.

Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7

(3d Cir. 1984).

In September of 2003 Rivera tested positive for the use of

opiates at Allenwood, which is a violation of the federal inmate

disciplinary code. A Disciplinary Hearing Officer punished

Rivera for the offense by ordering 60 days disciplinary

segregation, the disallowance of 54 days of good conduct time,

the forfeiture of 176 of non-vested good conduct time, and the

loss of telephone and visiting privileges for 18 months. Rivera

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claims that the sentence imposed violates the Bureau of Prisons’s

policies codified at 28 C.F.R. § 541.13, and is unconstitutional

because it was imposed in a retaliatory and biased manner and

constitutes cruel and unusual punishment.

Rivera’s entitlement to relief on any of the claims asserted

in his petition hinges upon the fundamental issues of whether the

sanctions imposed by the Disciplinary Hearing Officer “were in

compliance with B.O.P. Policies [or] are extensive, cruel and

unusual punishment.” (Memorandum of Law in Support of Habeas

Petition, p. 1) 

The imposed sentence was more severe than that recommended

by the applicable guidelines. However, the regulations authorize

such deviations where the decision is documented and justified in

the Disciplinary Hearing Officer’s report. See 28 C.F.R. §

541.13(b.1). In Rivera’s case the Disciplinary Hearing officer

complied with that regulation when he justified the sentence as

follows:

drug use is preceded by the illicit substance being

introduced by breeching the secure perimeter of the

institution. The purchase of drugs tends to lead to debt

and drug related debt has great potential to lead to

violence in relation to payment/non-payment of the same. 

Inmates are the target for this violence and staff have

great potential for injury responding to this violence.

(Disciplinary Hearing Officer Report, p. 3) 

Rivera’s claim that the imposed sentence does not comply

with the Bureau of Prison’s regulations is meritless. We next

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consider whether the imposed sentence violates Rivera’s Eighth or

Fourteenth Amendment rights.

Rivera cites the case of Bazzetta v. McGinnis, 286 F.2d 311

(6th Cir. 2002), in support of his constitutional claim. In that

case the court of Appeals for the Sixth Circuit held that certain

prison regulations which restricted inmates’ opportunities to

visit with family and friends violates the prisoners First,

Eighth, and Fourteenth Amendment rights. However, that decision

was reversed by the United States Supreme Court in Overton v.

Bazzetta, 539 U.S. 126, 123 S. Ct. 2162 (2003). The decision

cited by Rivera is invalid and does not support his claims in any

manner.

We will proceed to consider whether Rivera’s due process or

Eighth Amendment rights were violated. With respect to his due

process rights, the Magistrate Judge found that the requisite

procedures were followed in Rivera’s disciplinary hearing,

including the right to an impartial hearing officer. (Id., p. 4)

After considering the circumstances of this case, Magistrate

Judge Smyser determined that “[t]he sanctions imposed by the

[Disciplinary Hearing Officer] were within the limits stated in

28 C.F.R. § 541.13,” and that the sentence imposed was not

sufficiently serious to violate the Eighth Amendment. (Report and

Recommendation, pp. 5, 8)

Rivera states in his objections that “the sanctions ...

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placed upon him were extremely excess [sic] and done due to bias

and retaliation. Which is the main focus of these Objections.”

(Rivera’s objections, p. 4) Rivera’s full explanation of the

alleged bias is

that the [Disciplinary Hearing Officer who is an] ex-Captain

is clearly upset by the past, and possible future,

compromised staff. But as Petitioner has thoroughly

briefed, neither was he charged with, nor found to have

committed, the introducing of contraband into the “secure

perimeter of the institution.” Yet DHO Bittenbender blindly

struck at petitioner for failings which may well have been

on his watch at the prison. Which is not a proper manner to

dispense sanctions at this, or any other, prison.

19. The DHO effectively undertook a course of speculation

and set forth conduct from a Code 111 as the reason for

imposing sanctions for the lessor [sic] Code 112 (the

smaller the numerical value, the more severe/serious the

conduct). This is nothing less than capricious and clearly

shows the partiality of the DHO, and is proven by the

disallowance of 176 days of non-vested Good Time – well

outside the guidelines – which Petitioner didn’t even have.

(Rivera’s objections, pp. 6-7)

In order to succeed on his due process claim, Rivera is

required to show that his sentence resulted from an inappropriate

bias harbored by the Disciplinary Hearing Officer. Rivera has

not presented any evidence establishing such a bias. Instead, he

argues that the Disciplinary Hearing Officer’s alleged bias has

been proven by the excessive sentence. Such an argument appears

to be based on circular logic and is meritless. The Disciplinary

Hearing Officer provided adequate reasons for the sentence and

the record presented to us fails to support Rivera’s claim that

the Disciplinary Hearing Officer was in any way biased. 

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The only remaining facet of this case to consider is whether

the sentence imposed by the Disciplinary Hearing Officer violated

Rivera’s Eighth Amendment rights. The sentence here involved a

period of segregated confinement, loss of good conduct time,

forfeiture of non-vested good time, and the loss of phone and

visitation privileges. 

It is well-settled that not all restrictions which make “the

prisoner’s confinement more difficult to bear” violate the Eighth

Amendment. Overton v. Bazzetta, 539 U.S. 126, 123 S. Ct. 2162

(2003). We are the view that the sentence imposed upon Rivera

does not dramatically depart from accepted conditions of

confinement, create inhumane conditions, or inflict pain, injury,

or deliberate indifference to the risk that injury might occur.

Consequently, the sentence is not sufficiently severe to

implicate Rivera’s Eighth Amendment rights. See Sandin v. Connor,

515 U.S. 472, 485, 115 S. Ct. 2293 (1995); Estelle v. Gamble, 429

U.S. 97, 97 S. Ct. 285 (1976); Rhodes v. Chapman, 452 U.S. 337,

101 S. Ct. 2392 (1981). 

None of Rivera’s claims has merit. We will adopt the

Magistrate Judge’s Report and Recommendation, and deny Rivera’s

petition.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Report and Recommendation (Document 9) of

Magistrate Judge Smyser is adopted in toto.

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

1) is denied.

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

probable cause and a certificate of appealability will

not issue.

4. The Clerk of Court shall send a copy of this order to

Magistrate Judge Smyser.

5. The Clerk of Court shall close this file.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga

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