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Saleh v. Beasley

United States District Court, E.D. Arkansas, Eastern Division

March 7, 2018

ANES SALEH Reg #40403-013 PETITIONER
v.
GENE BEASLEY, Warden, Federal Correctional Institution, Forrest City, Arkansas RESPONDENT

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections:

         The following Recommended Disposition (“Recommendation”) has been sent to Judge D. P. Marshall Jr. Any party may file written objections with the Clerk of Court within 14 days of this Recommendation. Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.

         By not objecting, any right to appeal questions of fact may be waived. And, if no objections are filed, Judge Marshall can adopt this Recommendation without independently reviewing the record.

         II. Background:

         Petitioner Anes Saleh filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, without the help of a lawyer, challenging a prison disciplinary conviction. (Docket entry #1) Mr. Saleh is currently in the custody of the Bureau of Prisons (“BOP”) at the Federal Correctional Institution in Forrest City, Arkansas (“FCI-FC”). He challenges a disciplinary conviction he received when he was an inmate at the BOP's Federal Correctional Institution in Florence, Colorado. The disciplinary conviction resulted in the loss of forty-one days of good-conduct time; fifteen days disciplinary segregation plus 180 days suspended; and a loss of commissary, visitation, and phone privileges for 180 days. (#1 at 3)

         In his petition, Mr. Saleh claims that BOP officials violated his due process rights. Specifically, he alleges that there was insufficient evidence for the BOP's disciplinary hearing officer (“DHO”) to find that he had violated the BOP's Code of Conduct, which resulted in his loss of good-conduct time. For relief, he asks the Court to order Warden Beasley to expunge the violation from his record and restore his good-conduct time. (#1 at 7)

         Warden Beasley has responded to the petition. (#7) He argues that Mr. Saleh was not denied due process. (#7) Mr. Saleh has replied to the Warden's response. (#8)

         III. Facts:

         On August 15, 2016, Mr. Saleh received an incident report charging him with violation of the BOP's Code of Conduct 113, which proscribes possession of any narcotics, marijuana, drug, alcohol, intoxicants, or related paraphernalia not prescribed for the individual by a medical staff. (#7-1 at 1) The incident report was based on a search conducted on August 8, 2016, when staff found a medical vile of liquid concealed inside a jar of peanut butter in Mr. Saleh's secured locker during a mass shakedown in Mr. Saleh's unit. (#1 at 8) Labeling on the medical vile indicated that it contained an injectable steroid. (#7-1 at 2) The peanut butter jar was located on the same shelf as numerous mail items and commissary receipts belonging to Mr. Saleh. (#1 at 8) After the jar was discovered, Mr. Saleh stated: “It's not mine. I don't do drugs. I don't keep my locker locked and it was planted in there.” (#7-1 at 6-8)

         On August 16, 2016, Mr. Saleh was given notice of a disciplinary hearing and advised of his rights. Mr. Saleh requested the presence of a staff representative and witnesses. (Id. at 2) There was a delay in delivering the incident report to Mr. Saleh due to an incorrect date on the original report. (Id. at 9-10, 13) This also caused a delay in the discipline hearing. (Id. at 6)

         On August 26, 2016, Mr. Saleh appeared before the DHO for his hearing. Mr. Saleh stated that the peanut butter jar was not originally his, and that he had no knowledge that the medical vile was inside the jar. (Id. at 5) Mr. Saleh told the DHO that the referenced delay prevented him from obtaining witness testimony from Inmate Kennedy, who would have supported his claim that he received the peanut butter jar from another inmate. Mr. Kennedy passed away before the hearing. (Id.)

         Ultimately, the DHO found that Mr. Saleh had violated Code 113, and he was subsequently sanctioned for the incident. Mr. Saleh was given the DHO's written report that detailed the evidence relied on, including the original incident report, photographs of the peanut butter jar, the medical vile found inside with the label reading “Pro Choice Pharma Mass. Bulk Blend 500 For Intramuscular Injection 500 mg/ml, ” and close-up photographs from the internet to help identify the substance; the DHO's findings; and the reasons for the disciplinary action taken. (Id. at 2, 5-8)

         In relation to Mr. Kennedy, who passed away before he could give his testimony in support of Mr. Saleh, the DHO determined that Mr. Kennedy's testimony would have been irrelevant, because Mr. Kennedy could only attest that another inmate gave Mr. Saleh the jar of peanut butter but not whether Mr. Saleh had concealed the drug inside the jar. (Id. at 6)

         The DHO also noted that he had considered Mr. Saleh's inconsistent statements regarding the peanut butter jar. First, Mr. Saleh stated that the peanut butter jar was not his, but rather, was “planted there.” (Id. at 7) Then at the hearing, he stated that another inmate had given him the jar. (Id.) Based on these varying statements, the ...


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