William Lewis v. Warden Canaan USP

683 F. App'x 110
CourtCourt of Appeals for the Third Circuit
DecidedMarch 23, 2017
Docket16-4037
StatusUnpublished

This text of 683 F. App'x 110 (William Lewis v. Warden Canaan USP) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
William Lewis v. Warden Canaan USP, 683 F. App'x 110 (3d Cir. 2017).

Opinion

OPINION *

PER CURIAM

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. *111 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 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 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 mer-itless.

In an order entered on October 3, 2016, the District Court noted the disputed fac *112 tual 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. LAE 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 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, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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.

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Related

Wolff v. McDonnell
418 U.S. 539 (Supreme Court, 1974)
Brown v. Croak
312 F.3d 109 (Third Circuit, 2002)
Burkey v. Marberry
556 F.3d 142 (Third Circuit, 2009)

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Bluebook (online)
683 F. App'x 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-lewis-v-warden-canaan-usp-ca3-2017.