Ali v. Streeval

District Court, W.D. Virginia·Decided May 1, 2024·No. 7:23-cv-00468·Unknown

Opinion

CLERK'S OFFICE U.S. DIST. C AT ROANOKE, VA FILED IN THE UNITED STATES DISTRICT COURT May 01, 2024 FOR THE WESTERN DISTRICT OF VIRGINIA LAURA A. AUSTIN □□□□□ ROANOKE DIVISION BY: s/A. Beeson DEPUTY CLERK HASSAN SHARIF ALI, ) Petitioner, ) Civil Case No. 7:23-cv-00468 Vv. ) ) J.C. STREEVAL, ) By: Elizabeth K. Dillon Respondent. ) United States District Judge MEMORANDUM OPINION Hassan Sharif Ali, a federal inmate proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging disciplinary action taken against him while he was incarcerated at the United States Penitentiary (USP) in Lee County, Virginia. (Habeas Pet., Dkt. No. 1.) The respondent moves to dismiss for failure to claim, or in the alternative, for summary judgment. (Dkt. No. 5.) This motion will be granted. I. BACKGROUND A. Introduction Petitioner is currently incarcerated at the United States Penitentiary in Lee County, Virginia. Ali challenges the outcome of and proceedings before a Discipline Hearing Officer (DHO) at USP Lee. Specifically, Ali challenges disciplinary action taken against him related to the search of his cell on December 8, 2022. During that search, BOP officer S. Barker discovered two contraband items: (1) a “stinger”, which is considered a weapon, and (2) an impermissible quantity of stamps. Ali alleges that he was never advised of his rights throughout the disciplinary process, he was not given an opportunity to present video and documentary evidence, and the Incident Report (IR) was “false, forged, and fabricated.” (Dkt. No. 1.)

B. Inmate Discipline Program Pursuant to authority delegated by the United States Congress, the Bureau of Prisons (BOP) has promulgated rules for inmate discipline. See 28 C.F.R. § 541. Under these rules, BOP staff prepares an incident report (IR) when they reasonably believe that an inmate has

violated a BOP regulation. See 28 C.F.R. § 541.5(a). Staff provide the inmate with a written copy of the charges against him, ordinarily within twenty-four hours of the time staff became aware of the inmate’s involvement in the incident. 28 C.F.R. § 541.5(a). An investigating officer informs the inmate of the charges and asks for the inmate’s statement concerning the incident. The officer advises the inmate of his right to remain silent, informing him that his silence may be used to draw an adverse inference against him. The officer further explains that the inmate’s silence alone may not be used to support a finding that the inmate committed a prohibited act. 28 C.F.R. § 541.5(b). After the inmate is advised of the charges and his rights, and after the staff investigation is completed, a Unit Disciplinary Committee (UDC) reviews the incident report. 28 C.F.R. §

541.7. The UDC is tasked with reviewing the IR within five working days after it is issued. The inmate is permitted to appear in person or electronically at the UDC review of the IR, except during deliberations, or when the inmate’s presence could jeopardize institutional security. The inmate is entitled to make a statement and to present documentary evidence on his own behalf at the UDC review. See 28 C.F.R. §§ 541.7(c), (d), (e). After considering all the evidence presented at the review, the UDC makes a decision on the IR. The UDC’s decision must be based on some facts, and if there is conflicting evidence, based on the greater weight of the evidence. 28 C.F.R. § 541.7(e). The UDC finds (1) the inmate committed the prohibited act(s) as charged, and/or a similar prohibited act if reflected in the incident report, (2) the inmate did not commit the prohibited act charged, or (3) refers to the case to the DHO for further proceedings. See 28 C.F.R. § 541.7(a)(1)–(3). When an alleged violation of the BOP rules is serious and warrants

consideration for other than minor sanctions, the UDC refers the charges to the DHO for further proceedings. 28 C.F.R. § 541.7(a)(4). When charges are referred to the DHO, the UDC advises the inmate of his rights at the hearing that will occur before the DHO. 28 C.F.R. § 541.7(g). Those rights include having a staff representative and/or witnesses present at the DHO hearing. 28 C.F.R. § 541.8. If the inmate desires, a staff representative will be available to assist the inmate and help the inmate understand the charges and potential consequences. The staff representative may also assist the inmate by speaking with and scheduling witnesses, obtaining written statements, and otherwise helping the inmate prepare evidence for presentation at the DHO hearing. See 28 C.F.R. § 541.8. The DHO considers all evidence presented at the hearing and bases his/her decision on at

least some facts, and if there is conflicting evidence, on the greater weight of the evidence. See id. The DHO then makes one of the following findings: (1) the inmate committed the prohibited act charged and/or a similar prohibited act as reflected in the incident report, (2) the inmate did not commit the prohibited act charged, or (3) refers the incident back for further investigation, review, and disposition. 28 C.F.R. § 541.8(a). The DHO also prepares a record of the proceedings, which need not be verbatim. The record documents the advisement of inmate rights, the DHO’s findings, the DHO’s decision and the specific evidence relied upon by the DHO. It also includes the reasons for the sanctions imposed. 28 C.F.R. § 541.8(h). C. Incident Report 3706912 On December 8, 2022, USP Lee staff member S. Barker prepared IR 3706912 charging Ali with Possession of a Dangerous Weapon in violation of BOP disciplinary code 104 and Possession of an Unauthorized Item in violation of BOP disciplinary code 305. (Resp’t’s Ex. 1, Attachment B, Dkt. No. 8-3.) On December 10, 2022, Barker prepared a re-write of IR 3706912 to correct the time he became aware of the incident; otherwise, the re-write is identical to the original. (See id., Attachment C, Dkt. No. 8-4.) The report provided as follows: See 11. Description Of Incident (Date: 12-08-2022 Time: O220hrs staff became aware of incident) This is a Re-Write. On 12-8-2022 at approximately 2:20 AM | conducted a cell search of G Unit cell 332 which is housed by inmate Ali, Hassan #30380-057 who is the only occupant of this cell. While searching the cell a prison made striking weapon was discovered. The weapon was made of braided wire attached to two large plumbing nuts. | also found 293 books of stamps in the inmate s socks located in the inmate s commissary bags.

(Id.; see also Attachment I, Dkt. No.

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