United States District Court, E.D. Arkansas, Eastern Division
JAMES DENBY, Reg. #XXXXX-XXX, Petitioner,
CV. RIVERA, Warden, FCI-Forrest City Low, Respondent.
PROPOSED FINDINGS AND RECOMMENDATIONS
JOE J. VOLPE, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge J. Leon Holmes. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:
On August 26, 2014, Petitioner James Denby filed the instant Petition for Writ of Habeas Corpus. (Doc. No. 1.) In the Petition, he alleges his due process rights were violated when a Disciplinary Hearing Officer (DHO) found Mr. Denby had committed the prohibited act of possession of a weapon and forfeited forty-one days of good conduct time. (Doc. 8-1 at 29.) Mr. Denby is incarcerated in the Federal Correction Complex (Low) in Forrest City, where the living accommodations consist of an open dormitory with cubicles. (Doc. No. 1.) The cubicles are unsecured and include bunk beds for two inmates. ( Id. ) Petitioner shared his cubicle with Inmate Jaryl L. Wilson. On January 18, 2014, a correctional officer found a weapon hidden in the ladder of the bunk that Mr. Denby shares with Mr. Wilson. (Doc. No. 8-1 at 23.) Mr. Denby slept in the bottom bunk and Mr. Wilson on the top. (Doc. No. 2.)
While performing a random search, Senior Officer Mallard found "a homemade weapon made from scissors, approximately 8 inches long concealed inside the bottom end of the bunk ladder." (Doc. No. 8-1 at 19.) He wrote an incident report charging both inmates with a violation of Offense Code 104. Possession of a weapon in prison is also a violation of federal law. Therefore, administrative processing of the incident report was suspended while the United States Attorney's Office (USAO) considered whether it would proceed with prosecution. (Doc. No. 8.) On February 4, 2014, the USAO declined prosecution, and the incident was returned to the prison for processing. (Doc. No. 8-1 at 21.) The prison resumed its investigation into the incident. After reading Mr. Denby his rights and taking a statement, Lt. Watson found that a violation had occurred, (Doc. No. 8-1 at 20) and transferred the incident report to the Unit Discipline Committee (UDC) for disposition. ( Id. )
On February 7, 2014, the UDC provided Mr. Denby with a hearing, and referred the incident report to the Discipline Hearing Officer (DHO). (Doc. No. 8-1 at 19.) Mr. Denby was provided a Notice of Discipline Hearing and he requested a staff representative and two character witnesses to testify on his behalf. (Doc. No. 8-1 at 24.) He was also given a form advising him of his rights (Doc. No. 8-1 at 25), and at the February 13, 2014, hearing, Mr. Denby was read his rights, was represented by Special Investigative Services Technician S. Davenport, was allowed to make a statement, and called two witnesses who testified on his behalf. (Doc. No. 8-1 at 27.) Nevertheless, the DHO found that Mr. Denby was in possession of the weapon and sanctioned him to thirty days disciplinary segregation, 180 days loss of visits and e-mail, and forty-one days of good conduct time forfeited. (Doc. No. 8-1 at 29.) The DHO completed a written report of his findings, and it was given to Mr. Denby on February 27, 2014. ( Id. )
The instant Petition focuses on forty-one days of lost good conduct time. Mr. Denby believes he was denied due process rights when prison officials forfeited this time. (Doc. No. 1.) He contends that because he is actually innocent of the offense, his due process rights were violated, and the evidence fails to support a finding that he possessed the weapon. ( Id. ) Respondent counters by arguing that 1) Mr. Denby failed ...