NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 21-3081 ___________
MICHAEL STEVEN GORBEY, Appellant
v.
WARDEN LEWISBURG USP ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-20-cv-01364) District Judge: Honorable Robert D. Mariani ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) September 26, 2022
Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges
(Opinion filed October 7, 2022) ___________
OPINION* ___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM
Michael Gorbey, a federal inmate proceeding pro se and in forma pauperis,
appeals the orders of the United States District Court for the Middle District of
Pennsylvania denying his habeas petition filed under 28 U.S.C. § 2241 and his
subsequent motion for reconsideration. For the following reasons, we will affirm.
I.
On March 14, 2020, while confined at Federal Correctional Institution Estill (“FCI
Estill”), Gorbey received a written incident report charging him with “disruptive conduct
most likely [the] use of drugs.” On March 23, Gorbey received notice that he was to
appear before a Disciplinary Hearing Officer (“DHO”) regarding the charge. Upon
receipt of the notice, he requested a staff representative and three witnesses. Gorbey was
subsequently transferred to Lewisburg United States Penitentiary (“USP Lewisburg”),
where he had a two-day hearing. During the hearing, Gorbey, who had the assistance of
a staff representative, presented documentary evidence and contested the incident report,
arguing that his disruptive actions were the result of being attacked by other inmates and
reacting to his medication, rather than drug or alcohol use. The DHO denied Gorbey’s
requests for witnesses after deeming their testimony either adverse or unnecessary.
Gorbey was found guilty as charged, received a written report after the hearing, and was
sanctioned with, among other things, loss of good time credits.1
1 In his pro se brief, Gorbey contends that a reduction of 41 days of good time credits 2 Gorbey then filed a § 2241 petition claiming that his due process rights were
violated because (1) he was not given 24 hours’ notice of the hearing; (2) the hearing
took place on two separate dates; (3) the DHO was not an impartial arbiter; (4) he was
denied the staff representative of his choice; (5) he was denied effective representation;
and (6) he was prevented from submitting witness testimony. He also claimed that he
was actually innocent and that the Bureau of Prisons (“BOP”) Code provision under
which he was charged was unconstitutional.2 The District Court denied Gorbey’s
petition, concluding that he was afforded due process, that there was “some evidence” to
support the DHOs’ findings of guilt, see Superintendent v. Hill, 472 U.S. 457 (1985), and
that the sanctions imposed were within the limits of 28 C.F.R. § 541.3. Gorbey
appealed. After he appealed, Gorbey filed a motion for reconsideration, which the
District Court denied. He subsequently filed a timely amended notice of appeal to also
challenge the District Court’s denial of his motion for reconsideration.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). We
review the District Court’s denial of habeas corpus relief de novo, and we review factual
findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007).
exceeded permissible limits, but we cannot consider that issue because it was not presented to the District Court. See Royce v. Hahn, 151 F.3d 116, 125 (3d Cir. 1998). 2 Gorbey additionally alleged that his charge was against the weight of the evidence and that his misconduct charge was retaliatory, but he has abandoned those issues on appeal. 3 We review the denial of a motion for reconsideration for abuse of discretion. Max’s
Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). We
may affirm the District Court’s judgment on any basis supported by the record. See
Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
Federal prisoners have a liberty interest in statutory good time credits. See Wolff
v. McDonnell, 418 U.S. 539, 557 (1974); see also 18 U.S.C. § 3624(b)(1); Vega,
493 F.3d at 317 n.4. Thus, a prison disciplinary hearing that may result in the loss of
good conduct time must provide the following due process safeguards, in a proceeding
before an impartial decision-making body: (1) at least 24 hours of advance written notice
of the charges, (2) an opportunity to call witnesses and present documentary evidence, (3)
assistance from an inmate representative if the charge involves complex issues or if the
prisoner is illiterate, and (4) a written decision explaining the evidence relied upon and
the reasons for the disciplinary action. See Wolff, 418 U.S. at 563–67.
We discern no error in the District Court’s denial of Gorbey’s petition. Contrary
to Gorbey’s contentions, he was not entitled to receive notice exactly 24 hours before his
hearing. See Wolff, 418 U.S. at 564 (holding that “no less than 24 hours[] should be
allowed to the inmate to prepare for the appearance” (emphasis added)); 28 C.F.R. §
541.8(c). Although he was not provided with additional notice when he was transferred
to another facility, he had already been afforded ample time to “marshal the facts and
prepare a defense” prior to his transfer. Id. Even if he were entitled to receive additional
4 notice when he was transferred, Gorbey does not explain how he was prejudiced by the
lack of notice. See Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992) (noting that harmless
error analysis applies to cases concerning prison disciplinary proceedings). The same is
true for his claim that he should have had another opportunity to choose a staff
representative after he was transferred, given that the record indicates that he made no
specific requests of his assigned staff representative. (ECF No. 23 at 25). His failure to
do so also negates his claim that his staff representative did not provide him adequate
assistance.
As for Gorbey’s claim that the DHO violated his limited right to call witnesses,
the District Court properly concluded that the DHO legitimately denied Gorbey’s witness
requests on the grounds of relevance. See Wolff, 418 U.S. at 566 (1974); Scott v. Kelly,
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 21-3081 ___________
MICHAEL STEVEN GORBEY, Appellant
v.
WARDEN LEWISBURG USP ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-20-cv-01364) District Judge: Honorable Robert D. Mariani ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) September 26, 2022
Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges
(Opinion filed October 7, 2022) ___________
OPINION* ___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM
Michael Gorbey, a federal inmate proceeding pro se and in forma pauperis,
appeals the orders of the United States District Court for the Middle District of
Pennsylvania denying his habeas petition filed under 28 U.S.C. § 2241 and his
subsequent motion for reconsideration. For the following reasons, we will affirm.
I.
On March 14, 2020, while confined at Federal Correctional Institution Estill (“FCI
Estill”), Gorbey received a written incident report charging him with “disruptive conduct
most likely [the] use of drugs.” On March 23, Gorbey received notice that he was to
appear before a Disciplinary Hearing Officer (“DHO”) regarding the charge. Upon
receipt of the notice, he requested a staff representative and three witnesses. Gorbey was
subsequently transferred to Lewisburg United States Penitentiary (“USP Lewisburg”),
where he had a two-day hearing. During the hearing, Gorbey, who had the assistance of
a staff representative, presented documentary evidence and contested the incident report,
arguing that his disruptive actions were the result of being attacked by other inmates and
reacting to his medication, rather than drug or alcohol use. The DHO denied Gorbey’s
requests for witnesses after deeming their testimony either adverse or unnecessary.
Gorbey was found guilty as charged, received a written report after the hearing, and was
sanctioned with, among other things, loss of good time credits.1
1 In his pro se brief, Gorbey contends that a reduction of 41 days of good time credits 2 Gorbey then filed a § 2241 petition claiming that his due process rights were
violated because (1) he was not given 24 hours’ notice of the hearing; (2) the hearing
took place on two separate dates; (3) the DHO was not an impartial arbiter; (4) he was
denied the staff representative of his choice; (5) he was denied effective representation;
and (6) he was prevented from submitting witness testimony. He also claimed that he
was actually innocent and that the Bureau of Prisons (“BOP”) Code provision under
which he was charged was unconstitutional.2 The District Court denied Gorbey’s
petition, concluding that he was afforded due process, that there was “some evidence” to
support the DHOs’ findings of guilt, see Superintendent v. Hill, 472 U.S. 457 (1985), and
that the sanctions imposed were within the limits of 28 C.F.R. § 541.3. Gorbey
appealed. After he appealed, Gorbey filed a motion for reconsideration, which the
District Court denied. He subsequently filed a timely amended notice of appeal to also
challenge the District Court’s denial of his motion for reconsideration.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). We
review the District Court’s denial of habeas corpus relief de novo, and we review factual
findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007).
exceeded permissible limits, but we cannot consider that issue because it was not presented to the District Court. See Royce v. Hahn, 151 F.3d 116, 125 (3d Cir. 1998). 2 Gorbey additionally alleged that his charge was against the weight of the evidence and that his misconduct charge was retaliatory, but he has abandoned those issues on appeal. 3 We review the denial of a motion for reconsideration for abuse of discretion. Max’s
Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). We
may affirm the District Court’s judgment on any basis supported by the record. See
Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
Federal prisoners have a liberty interest in statutory good time credits. See Wolff
v. McDonnell, 418 U.S. 539, 557 (1974); see also 18 U.S.C. § 3624(b)(1); Vega,
493 F.3d at 317 n.4. Thus, a prison disciplinary hearing that may result in the loss of
good conduct time must provide the following due process safeguards, in a proceeding
before an impartial decision-making body: (1) at least 24 hours of advance written notice
of the charges, (2) an opportunity to call witnesses and present documentary evidence, (3)
assistance from an inmate representative if the charge involves complex issues or if the
prisoner is illiterate, and (4) a written decision explaining the evidence relied upon and
the reasons for the disciplinary action. See Wolff, 418 U.S. at 563–67.
We discern no error in the District Court’s denial of Gorbey’s petition. Contrary
to Gorbey’s contentions, he was not entitled to receive notice exactly 24 hours before his
hearing. See Wolff, 418 U.S. at 564 (holding that “no less than 24 hours[] should be
allowed to the inmate to prepare for the appearance” (emphasis added)); 28 C.F.R. §
541.8(c). Although he was not provided with additional notice when he was transferred
to another facility, he had already been afforded ample time to “marshal the facts and
prepare a defense” prior to his transfer. Id. Even if he were entitled to receive additional
4 notice when he was transferred, Gorbey does not explain how he was prejudiced by the
lack of notice. See Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992) (noting that harmless
error analysis applies to cases concerning prison disciplinary proceedings). The same is
true for his claim that he should have had another opportunity to choose a staff
representative after he was transferred, given that the record indicates that he made no
specific requests of his assigned staff representative. (ECF No. 23 at 25). His failure to
do so also negates his claim that his staff representative did not provide him adequate
assistance.
As for Gorbey’s claim that the DHO violated his limited right to call witnesses,
the District Court properly concluded that the DHO legitimately denied Gorbey’s witness
requests on the grounds of relevance. See Wolff, 418 U.S. at 566 (1974); Scott v. Kelly,
962 F.2d 145, 147 (2d Cir. 1992) (noting that a prisoner’s request for a witness can be
denied on the basis of irrelevance). Gorbey did not dispute that he was acting erratically
or displaying signs of intoxication; he disputed only the cause of his behavior, which he
stated was an adverse reaction to his medication and being attacked by other inmates.
Witnesses who did not observe the alleged attack and could not speak to the cause of his
actions could not provide relevant testimony. We also conclude that the DHO’s decision
to continue the proceeding and have “ex parte” contact with requested witnesses does not
rise to the level of a due process violation. See Withrow v. Larkin, 421 U.S. 35, 47
(1975); Robinson v. State of New Jersey, 806 F.2d 442, 450 (3d Cir. 1986).
5 Finally, we are not persuaded that BOP Codes 112 or 199 are unconstitutionally
vague. See Johnson v. United States, 576 U.S. 591, 594 (2015); Meyers v. Alldredge,
492 F.2d 296, 306 (3d Cir. 1974) (rejecting the view that “the degree of specificity
required of [prison] regulations is as strict in every instance as that required of ordinary
criminal sanctions”). Contrary to Gorbey’s contentions, it is clear what the regulation
prohibits, and 28 C.F.R. § 541.8(f) places limits on the DHO’s discretion by requiring the
decision to be based on some facts and, where there is conflicting evidence, on the
greater weight of the evidence.
Turning to the motion for reconsideration, we note that Gorbey had a proper basis
for bringing the motion given that the District Court failed to address some of his claims,
see Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010), but any error on the District
Court’s part in denying it was harmless in light of our foregoing conclusions that
Gorbey’s claims are without merit.
We will accordingly affirm the judgment of the District Court.