BLD-113 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-4036

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WILLIAM SOLOMON LEWIS,

Appellant

v.

WARDEN CANAAN USP

__________________________________ 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. No. 3-15-cv-00092)

District Judge: Robert D. Mariani

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Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

January 26, 2017

Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges

(Opinion filed: March 23, 2017)

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OPINION*

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PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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William Lewis appeals from an order of the District Court denying his petition for 

writ of habeas corpus, 28 U.S.C. § 2241. For the reasons that follow, we will summarily 

affirm.

Lewis, while incarcerated at the United States Penitentiary in Coleman, Florida, 

was charged in Incident Report No. 2427489 with a Code 227 violation for refusing to 

submit to a tuberculosis skin test. Bureau of Prisons (“BOP”) Program Statement 

6190.04, requires inmates to undergo a purified protein derivative (“PPD”) skin test for 

tuberculosis (“TB”). Lewis complained to prison personnel that he had previously 

experienced blistering and swelling following a PPD test. He requested a chest x-ray in 

lieu of the test. The request was denied by prison staff and Lewis’s continued refusal 

resulted in the misconduct, 28 C.F.R. § 549.12(b)(4).

On April 12, 2013, Lewis appeared before a Disciplinary Hearing Officer and 

stated that he refused the PPD skin test because he had previously suffered an allergic 

reaction to it; he noted, however, that he did not refuse all testing for TB. Lieutenant 

Phelps appeared as a witness and corroborated Lewis’s refusal, and he further noted that 

Lewis had been given a chest x-ray in lieu of a PPD test on at least one occasion while 

incarcerated in another institution. The Hearing Officer called T. Objio as a witness, and 

she stated that inmates could not have a chest x-ray in lieu of a PPD test unless a prior 

allergic reaction was documented. Moreover, Lewis’s records showed that he underwent 

a PPD test the year before, in 2012, and those records did not show that he suffered an 

allergic reaction. Lewis’s staff representative, Nurse Flagg, stated at the hearing that no 

allergic reactions to the PPD test had ever been documented in Lewis’s case. Other 
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documentary evidence, including a prior incident report, was submitted for the Hearing 

Officer’s review. Lewis presented no documentary evidence in support of his assertion 

that he had previously suffered an allergic reaction to a PPD test. 

Following the hearing, the Hearing Officer concluded that Lewis had no basis for 

refusing to submit to the PPD test and found him guilty of the misconduct. Lewis was 

sanctioned as follows: loss of 27 days of good conduct time; confinement to disciplinary 

segregation for 30 days; and loss of commissary and telephone privileges for 90 days. In 

addition, his personal property was impounded for 30 days.

Lewis, who is now incarcerated in Pennsylvania, filed a petition for writ of habeas 

corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle 

District of Pennsylvania, seeking the restoration of his good conduct time. In addition to 

setting forth his claim of a violation of his right to due process in connection with the loss 

of his good conduct time, he also asserted that he had tried to exhaust his administrative 

remedies by appealing the decision of the Hearing Officer. He asserted that he had, 

however, received no response to his appeal from the Regional Office. Lewis submitted 

documentation of his efforts to administratively appeal his sanctions, and argued that the 

requirement should be waived in his case, citing our decision in Brown v. Croak, 312 

F.3d 109, 112-13 (3d Cir. 2002) (if prison official thwarts inmate’s ability to exhaust his 

administrative remedies, those remedies are not considered available within meaning of 

42 U.S.C. § 1997e(a)). The BOP responded that the petition should be denied based on 

Lewis’s failure to comply with the complete administrative review process, citing 

Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760-61 (3d Cir. 1996) (if prisoner has 
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failed to exhaust administrative remedies due to his procedural default and default 

renders administrative process unavailable, review of his habeas claim is barred absent 

showing of cause and prejudice). In the alternative, the BOP argued that the petition was 

meritless.

In an order entered on October 3, 2016, the District Court noted the disputed 

factual issues relating to Lewis’s efforts to exhaust his administrative remedies but 

declined to resolve the dispute, preferring instead to deny the habeas petition on the 

merits. In a thorough Memorandum, the Court discussed the applicable law, reviewed 

the evidence presented at Lewis’s disciplinary hearing and the Hearing Officer’s findings 

and conclusions, and concluded that Lewis was afforded all of his procedural rights, and 

that “some evidence” supported the decision of the Hearing Officer. Accordingly, the 

District Court concluded, Lewis had failed to make out a due process violation.

Lewis appeals. We have jurisdiction under 28 U.S.C. § 1291. See Burkey v. 

Marberry, 556 F.3d 142, 146 (3d Cir. 2009) (certificate of appealability not required to 

appeal from denial of § 2241 petition). Our Clerk granted Lewis leave to appeal in forma

pauperis and advised him that the appeal was subject to summary dismissal under 28 

U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 

10.6. He was invited to submit argument in writing, but he has not done so.

We will summarily affirm the order of the District Court because no substantial 

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. A 

challenge to the BOP’s execution of a sentence, including the sanction of loss of good 

conduct time, is properly brought under 28 U.S.C. § 2241. See Woodall v. Federal 
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Bureau of Prisons, 432 F.3d at 235, 241-43 (3d Cir. 2005). We exercise plenary review 

over the District Court’s legal conclusions and review its factual findings for clear error. 

See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000). 

Due process provides certain procedural protections at a prisoner’s disciplinary 

hearing, Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974), as do the governing 

regulations, see 28 C.F.R. § 541.5, et seq., but, as explained by the District Court, Lewis 

received all of the process he was due. He received advance written notice of the charge, 

he called witnesses and gave a statement at the hearing that his refusal was medically 

justified, and he elected to have a staff representative speak for him. In addition, Lewis 

indicated throughout that he was aware of his rights in connection with the hearing. 

Also, the Hearing Officer fully considered all of the evidence and fully explained his 

decision to sanction Lewis for refusing to undergo the PPD skin test. Lewis was then 

notified of his right to appeal. 

Furthermore, the findings of a Disciplinary Hearing Officer must be supported by 

“some evidence in the record,” Superintendent, Massachusetts Correctional Inst. v. Hill, 

472 U.S. 445, 454-56 (1985), but again, as explained by the District Court, the standard 

was met in Lewis’s case. Lewis does not have a documented history of a severe previous 

reaction to the PPD skin test, and the Hearing Officer did not favorably rate his 

credibility with respect to his assertion of a justified need for a chest x-ray. Therefore, 

the Hearing Officer’s conclusion that Lewis’s refusal to undergo the PPD test was 

unjustified is supported by “some evidence.” Lewis’s due process claim is thus without 

merit.
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We note that, in his Traverse to the BOP’s response to his § 2241 petition, Lewis 

relied upon specific text in P.S. 6190.04, in support of his argument that a self-reported 

allergy is sufficient to show the need for a chest x-ray in lieu of a PPD skin test. 

Specifically, he noted the following text:

A self-reported, undocumented previous positive tuberculin skin test is not 

a contraindication to receiving a tuberculin skin test unless a severe 

previous reaction (e.g. whole arm swelling or severe blistering) has been 

documented or described by the inmate. *** An inmate may not request to 

substitute a chest radiograph for a screening tuberculin skin test. The only 

exception is when there is a medical contraindication to tuberculin skin 

testing....

P.S. 6190.04 (emphasis added). 

Based on the plain language of the Program Statement, Lewis asserted that he was 

entitled to a chest x-ray based solely on his self-reporting of an allergic reaction; 

documentation of an allergic reaction in his records was not required, he argued. We 

note that the text cited by Lewis appears in the Program Statement’s explanation of BOP 

policy with respect to 28 C.F.R. § 549.12 (b)(1), which provides that the BOP “screens 

each inmate for TB within two calendar days of initial incarceration.” Accordingly, we 

doubt that Lewis’s textual argument has merit; this particular section of P.S. 6190.04 

read as a whole pertains to inmates who are completely new to the Bureau of Prisons and 

have no records.1 Lewis is not such an inmate. 

But, even assuming that a textual argument has some merit, the self-reporting of a 

“severe previous reaction” would necessarily have to be credible. In concluding that 

 

1 The entire Program Statement was submitted as an exhibit to the BOP’s response to 

Lewis’s petition.
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Lewis’s refusal to undergo a PPD test was unjustified, the Hearing Officer specifically 

relied upon a prior incident report from another institution where Lewis had refused a 

PPD test. The report stated that Lewis told a nurse that “he has not had a + PPD nor does 

he have severe reactions, he [just] chooses not to have the tuberculosis injected into his 

body.” Lewis’s credibility was thus at issue at his disciplinary hearing, and the Hearing 

Officer specifically found that all staff members’ statements and written observations 

were more credible than Lewis’s self-reporting. Accordingly, it was not wrong for the 

Hearing Officer to insist upon written documentation in Lewis’s prison record of a prior 

severe reaction to the PPD skin test. Finding none, the Hearing Officer properly 

adjudicated Lewis guilty of the misconduct.

For the foregoing reasons, we will summarily affirm the order of the District Court 

denying Lewis’s petition for writ of habeas corpus.