2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-20-2012

James Wallace v.;David Ebbert

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3097

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Recommended Citation

"James Wallace v.;David Ebbert" (2012). 2012 Decisions. Paper 132.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3097

___________

JAMES V. WALLACE,

 Appellant 

v.

WARDEN DAVID EBBERT; 

KEVIN BITTENBENDER, D.H.O.

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 11-cv-01936)

District Judge: Honorable William W. Caldwell

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 16, 2012

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Opinion filed: November 20, 2012)

___________

OPINION OF THE COURT

___________

PER CURIAM

Appellant, James V. Wallace, is a federal prisoner proceeding pro se. On August 

23, 2010, while he was an inmate at the Allenwood Federal Correctional Institution in 

White Dear, Pennsylvania, (“FCI-Allenwood”), he was issued an incident report for 
2

violating the Federal Bureau of Prisons (“BOP”) Prohibited Acts Code 112, which 

prohibits the use of any narcotics not prescribed by medical staff. See 28 C.F.R. § 541.3, 

tbl. 1. According to the incident report, Wallace’s August 17, 2010 urine sample had 

tested positive for opiates. On September 3, 2010, at a hearing before a Disciplinary 

Hearing Officer (“DHO”), Wallace admitted the charge against him. Based on Wallace’s 

admission and other evidence, the DHO sustained the disciplinary charge. After noting 

that this was Wallace’s fourth Code 112 violation, and explaining the seriousness of the 

offense, the DHO sanctioned him as follows: (1) loss of eighteen months of telephone 

privileges, as well as three years of visiting privileges; (2) disciplinary segregation of 

sixty days; (3) disallowance of fifty-four days of good time credit; and (4) forfeiture of 

458 days of non-vested good time credit. 

On October 19, 2011, Wallace filed a petition for writ of habeas corpus under 28

U.S.C. § 2241 claiming that the DHO impermissibly relied on his prior Code 112 

violations to “enhance” the sanctions pertaining to his good time credits. According to 

Wallace, the sanctions were “harsh and unjust,” and violated both 28 C.F.R. § 541.3 and 

BOP Program Statement 5270.09, which outlines the inmate discipline program in 

accordance with the underlying regulation. The District Court denied the petition, and 

Wallace timely appealed. 

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. 

§ 2253(a). We exercise plenary review over the District Court’s legal conclusions and 
3

review its factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 

(3d Cir. 2007). 

The District Court correctly concluded that Wallace’s punishment fell within the 

range of acceptable punishments outlined in the applicable regulations.1 Pursuant to 

Table 1 of 28 C.F.R. § 541.3, the DHO was permitted to “[f]orfeit and/or withhold . . . 

non-vested good conduct time (up to 100%),” and “[d]isallow ordinarily between 50% 

and 75% (27-41 days) of good conduct time credit available for a year.” Wallace’s loss 

of 458 days of non-vested good conduct time was clearly permitted by this regulation, 

and, although the loss of 54 days of good conduct time exceeded the “ordinar[y]” 

sanction, nothing in Table 1 prohibited the DHO from disallowing a greater percentage of 

his good conduct time in an effort to deter him from future infractions—especially given 

his history of Code 112 violations. Furthermore, while Wallace argues that the DHO was 

not permitted to enhance his punishment under Table 2 based on prior offenses that were 

more than two years old, see 28 C.F.R. § 541.3, tbl. 2 (“Additional Available Sanctions 

for Repeated Prohibited Acts Within the Same Severity Level”), the DHO did not rely on 

Table 2 to determine his punishment; rather, as previously noted, the DHO imposed 

sanctions permitted under Table 1. 

For these reasons, we will affirm the District Court’s judgment.

 

1

The District Court also determined that Wallace received all of the process he was due 

during the disciplinary proceedings. See Wolff v. McDonnell, 418 U.S. 539, 563-66 

(1974); Superintendent v. Hill, 472 U.S. 445, 454 (1985). Wallace does not challenge 

this ruling on appeal, and we see no error in the District Court’s reasoning.