IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL RAY FORBES, §

#13302-078, §

PETITIONER, §

§

V. § CIVIL CASE NO. 3:22-CV-582-L-BK

§

R ZOOK, ET AL., §

RESPONDENTS. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, Petitioner Michael Ray Forbes’s 

petition for habeas corpus under 28 U.S.C. § 2241 was referred to the undersigned United States 

Magistrate Judge for case management. As detailed herein, the petition should be DENIED, and 

this case should be DISMISSED WITH PREJUDICE. 

I. BACKGROUND

Forbes was convicted in the United States District Court for the Eastern District of Texas 

of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846, and sentenced to 

145 months’ imprisonment. Doc. 3 at 3. Here, Forbes challenges a subsequent prison

disciplinary infraction he received at FCI Seagoville for possessing drugs. See Doc. 10 at 20

(Discipline Hearing Officer Report). 

On May 15, 2020, Forbes received an incident report charging him with “Possession of 

Drugs or Alcohol” (Prohibited Code 113), based on a search of his property at FCI El Reno and 

subsequent testing of a suspicious substance found therein which tested positive for heroin. Doc. 

10 at 14. 

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A hearing before the Unit Discipline Committee (UDC) was held. Doc. 10 at 14. During 

the hearing, Forbes said, “[i]t’s not mine. My property has been there for almost 3 months. I 

would like them to fingerprint it.” Doc. 10 at 14. The UDC determined Forbes to be guilty and 

referred the matter for a hearing before the Discipline Hearing Officer (DHO). Doc. 10 at 14. 

On May 16, 2020, Forbes was presented with a form titled Inmate Rights at Discipline Hearing, 

which he signed acknowledging his receipt. Doc. 10 at 16. Forbes did not request witnesses or a 

staff representative for the DHO hearing. Doc. 10 at 18. 

A DHO hearing was held on May 20, 2020. Doc. 10 at 20. Forbes stated, “[m]y property 

has been in El Reno and I just got it. It’s not mine. I have RDAP behind me.” Doc. 10 at 21. 

Nevertheless, the DHO concluded that, “[b]ased upon the greater weight of the evidence, the eye 

witness account of the incident, the photos, staff memorandums, NIK test results and the written 

report, the DHO is convinced inmate FORBES, MICHAEL...committed the prohibited act of 

Possession of Intoxicants in violation of Code 113. Doc. 10 at 21. As sanctions, the DHO (1) 

disallowed 41 days of Forbes’s “Good Conduct Time”; (2) imposed 10 days of disciplinary 

segregation; and (3) prohibited e-mail, phone, visitation, and commissary privileges for 120 

days. Doc. 10 at 21. 

On June 16, 2020, the DHO report was delivered to Forbes. Doc. 10 at 21. Forbes 

subsequently filed an unsuccessful Regional Administrative Remedy Appeal, and his Central 

Office Administrative Remedy Appeal was also denied. Doc. 4 at 17-18, 25.

In his Section 2241 habeas petition, Forbes argues that (1) the BOP staff did not follow 

BOP policies and procedures in searching his property; (2) conflicting evidence about whether 

the substance was an amphetamine or heroin undermines the disciplinary findings; (3) the drug 

testing procedures used in his case were unreliable; and (4) it is possible that the property in 

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which the drugs were found did not belong to him because the BOP lost some of his personal 

property while transporting it from FCI Seagoville to the Federal Medical Center Fort Worth. 

See Doc. 3 at 4-5; Doc. 4 at 4-16. Forbes requests that the DHO hearing be expunged from his 

record and that all sanctions be terminated. Doc. 3 at 5. 

II. ANALYSIS

Under federal sentencing law, prison authorities may award credit to prisoners against 

their prison time as a reward for good behavior. 18 U.S.C. § 3624(b). Federal prisoners may 

contest the loss of these so called “good time” credits under 28 U.S.C. § 2241, which is the 

proper procedural vehicle for a prisoner to challenge “the execution of his sentence rather than 

the validity of his conviction and sentence.” United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 

1992). If a petitioner “can show that his due process rights were violated in the subject 

disciplinary proceedings, then § 2241 would be the appropriate remedy to use to restore his good 

time credits.” See Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987) (citing Jackson v. 

Carlson, 707 F.2d 943, 946 (7th Cir. 1983)). An inmate may not be deprived of good time 

credits for a disciplinary violation unless he is afforded due process. Wolff v. McDonnell, 418 

U.S. 539, 50 (1974). Specifically, an inmate charged with a violation must be given (1) advance 

written notice of the charges, (2) the opportunity to appear and call witnesses, (3) the 

opportunity, in certain situations, for the assistance of a fellow inmate or staff, and (4) a written 

statement by the fact finder as to the evidence relied on for the decision. Id. at 563-70. 

As detailed in the previous section, Forbes was afforded all required due process during 

his disciplinary process. He received advance written notice of the charge on May 15, 2020. 

Doc. 10 at 14; and he appeared before the DHO for a hearing on May 20, 2020. Doc. 10 at 20. 

When Forbes appeared before the DHO, he made a statement, presented no documentary 

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evidence, and waived his right to request witnesses. Doc. 10 at 20. Forbes also declined the 

assistance of a staff representative. Doc. 10 at 20. Finally, Forbes was provided a written 

statement as to the evidence the factfinder relied on and the reasons for the actions taken by the 

factfinder. Doc. 10 at 20-21.

Forbes claims that photo sheets used as evidence against him described the illicit 

substance found in his property as “narcotics (amphetamines)” (Doc. 4-1 at 18-19), while the 

incident report noted that NIK testing positively identified the substance as heroin. Doc. 4 at 7-

8. If Forbes is claiming inadequate notice because of this discrepancy, the argument lacks merit. 

Forbes had notice of the charge against him—possession of drugs or alcohol—which would 

apply regardless of whether the substance tested as heroin or an amphetamine. Further, 

regardless of what was depicted in the photos, the incident report stated the substance was 

heroin, and Forbes received the incident report five days before the DHO hearing. Doc. 10 at 14. 

Thus, Forbes received constitutionally adequate notice of the charge against him

The bulk of Forbes’s remaining arguments focus on whether there was sufficient 

evidence to support the disciplinary conviction. Doc. 4 at 4-16. 

In reviewing an institution’s disciplinary actions, the Court need only consider if the 

decision was supported by “some basis in fact” or “a modicum of evidence.” Superintendent, 

Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 454-56 (1983); see also Smith v. 

Rabalais, 659 F.2d 539, 545 (5th Cir. 1981) (citation omitted) (court should consider whether the 

disciplinary decision is “supported by ‘some facts’ whether any evidence at all’ supports the 

action taken by the prison officials.”). Federal court intervention is appropriate only when the 

DHO’s action is “arbitrary or capricious.” Reeves v. Pettox, 19 F.3d 1060, 1062 (5th Cir. 1994)). 

Moreover, the evidence need not eliminate all other conclusions, nor does the “some evidence” 

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standard require a weighing of the evidence or an independent assessment of witness credibility. 

Hill, 472 U.S. at 455-56. 

Here there was clearly “some evidence” to support the DHO’s conviction. The DHO 

relied on the incident report, in which an officer stated that while searching Forbes’s incoming 

property, he found a suspicious piece of paper that indicated obvious signs of leaching of a liquid 

substance, which “NIK K” testing later confirmed to be heroin. Doc. 10 at 14. The reporting 

staff member’s report, alone, provides some evidence to support Forbes’s disciplinary 

conviction. Hudson v. Johnson, 242 F.3d 534, 536-37 (5th Cir. 2001). However, the DHO also 

relied on Forbes’s oral statement, staff memorandums, the eyewitness account of the incident, 

photographs, and the NIK test results (Doc. 10 at 21), all of which further supports the 

disciplinary determination.

Forbes specifically argues that the NIK test results are unreliable (Doc. 4 at 8-12), but it 

is not this Court’s job to re-weigh evidence in the prison discipline context. See, e.g., Hill, 472 

U.S. at 455. And, at any rate, federal courts have relied upon NIK test results to support prison 

disciplinary convictions, so Forbes’s argument is not persuasive. See, e.g., Tamez v. Warden, 

FCC Beaumont Medium, CIVIL ACTION NO. 1:19-CV-92, 2020 WL 1301667, at *2 (E.D. Tex. 

Feb. 10, 2020), rec. accepted 2020 WL 1289972 (E.D. Tex. Mar. 17, 2020) (“In this case, there 

was some evidence to support the finding that petitioner possessed narcotics. The DHO relied on 

the reporting officer’s statement and the NIK test results. Because there is some evidence to 

support the guilty finding, the Court is not free to retry the disciplinary charge and substitute its 

opinion for that of the hearing office.”). 

Next, Forbes contends that the search of his property violated BOP rules because it took 

place in his absence. Doc. 4 at 4-7. He points specifically to a provision in a BOP Program 

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Statement mandating that “inmates must be present during search and inventory of their 

property, except when their presence would jeopardize the safety and security of the institution, 

or the inmate is absent from the institution.” Doc. 4 at 4. 

To the extent Forbes contends that the failure to follow BOP policies and procedures, in 

and of itself, taints the disciplinary proceedings, he is incorrect. “A prison official’s failure to 

follow the prison’s own policies, procedures or regulations does not constitute a violation of due 

process, if constitutional minima are nevertheless met.” Myers v. Klevenhagen, 97 F.3d 91, 94 

(5th Cir. 1996). As explained above, because the Wolff requirements were met in this case, this 

argument is without merit. 

Related to this argument, Forbes speculates that, because he was not present during the 

search, “corrupt staff” went into his property and planted the drugs. Doc. 4 at 6. He provides no 

explanation as to why a staff member would do that. Forbes’s pure speculation on this point 

does not show that his conviction was unsupported by any evidence. 

Next, Forbes claims the evidence was insufficient because a photo sheet described the 

drugs found as amphetamines, but the testing kit determined the drugs to be heroin. Doc. 4 at 8. 

But Forbes does not explain the relevance of this discrepancy in the context of the “some 

evidence” inquiry. Again, Forbes was convicted of possessing a drug, and there was some 

evidence that he did, regardless of whether it was an amphetamine or heroin. 

Finally, Forbes complains that he had six boxes of personal property, but the BOP lost 

four of them during his transfer from FCI Seagoville to Federal Medical Center Fort Worth. 

Doc. 4 at 13. Forbes argues that, because of this error or malfeasance on the part of the BOP, it 

is unclear whether the property that was inspected at FCI El Reno was his. Doc. 4 at 13. He 

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speculates that BOP officers might have conspired to steal his property and “write up a bogus 

incident report” for possession of drugs. Doc. 4 at 15. 

Again, Forbes’s mere speculation is insufficient to demonstrate that no evidence supports

his disciplinary conviction. Neither his briefing nor the materials he submitted detailing his 

attempts to obtain relief related to his lost property (Doc. 4-1 at 3-17) shows that the property in 

which the drugs were found was not his or otherwise refutes the evidence against him. 

Because at least some evidence supports Forbes’s disciplinary conviction, his § 2241 

petition should be denied. 

III. CONCLUSION

For the foregoing reasons, Forbes’s petition for habeas corpus under § 2241 should be 

DENIED, and this case be DISMISSED WITH PREJUDICE.

SO RECOMMENDED February 14, 2023.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report and recommendation must file specific 

written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED.

R. CIV. P. 72(b). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific 

written objections will bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon 

grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996), modified by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections 

to 14 days).

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