United States District Court, E.D. North Carolina, Western Division
C. DEVER III, Chief United States District Judge
November 2, 2015, George Riley Altaian ("Altaian"
or "petitioner"), a federal inmate, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 [D.E. 1], accompanied by supporting exhibits
[D.E. 1-1]. Airman is confined at United States Penitentiary,
Atlanta,  and challenges his loss of good-time
credits arising from a disciplinary proceeding that occurred
while he was confined at FCI Morgantown in West Virginia.
Pet. at 2-7. On April 15, 2016, Magistrate Judge Numbers
allowed the petition to proceed [D.E. 5]. On May 5, 2016, the
United States filed a motion to dismiss the action for
failure to state a claim [D.E. 8], and the court notified
Airman of his right to respond [D.E. 11]. See Roseboro v.
Garrison. 528 F.2d 309, 310 (4th Cir. 1975) (per
curiam). OnMay 12, 2016, Airman responded in opposition to
the motion to dismiss [D.E. 12]. On October 24, 2016, Judge
Numbers issued a Memorandum and Recommendation
("M&R") recommending that the court grant the
government's motion to dismiss [D.E. 14]. On November 3,
2016, Airman filed objections to the M&R [D.E. 15]. As
explained below, the court overrules Airman's objections,
adopts the findings and conclusions in the M&R except as
modified in this order, and grants the government's
motion to dismiss.
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Tns, Co., 416 F.3d 310,
315 (4th Cir. 2005) (emphasis, alteration, and quotation
omitted); see 28 U.S.C. § 636(b). Absent a timely
objection, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation." Diamond. 416 F.3d at 315
(quotation omitted). The court need not conduct a de novo
review where a party makes only "general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations." Qrpiano v. Johnson. 687 F.2d
44, 47 (4th Cir. 1982); see Wells v. Shriners Hosp..
109 F.3d 198, 200-01 (4th Cir. 1997). The Federal
Magistrate's Act "does not countenance a form of
generalized objection to cover all issues addressed by the
magistrate judge; it contemplates that a party's
objection to a magistrate judge's report be specific and
particularized, as the statute directs the district court to
review only those portions of the report or specified
proposed findings or recommendations to which objection is
made." United States v. Midgette. 478 F.3d 616,
621 (4th Cir. 2007) (quotation and emphasis omitted).
court has reviewed the M&R, the record, and Altaian's
objections. In 2015, a staff member at FCI Morgantown charged
Altaian with violating Prohibited Act Code 305 ("Code
305") ("Possession of Anything Not
Authorized") and Prohibited Act Code 331 ("Code
331") ("Possession, Manufacturing, or Introduction
of Non-Hazardous Contraband") after a search of
Altaian's living quarters uncovered chewing tobacco
stored in his laundry bag. Prison staff referred the charges
to a disciplinary hearing officer ("DHO"). The
charging document specifically charged Altaian with
"poss unauthorized item; poss a nonhazardous tool"
under Codes 305 and 331 [D.E. 10-4] 1. At the hearing,
Altaian denied that the tobacco was his or that he had placed
it in his laundry bag. Altaian asserted that he did not use
tobacco products of any kind and claimed that other inmates
placed the tobacco in his laundry bag because they wanted him
removed from the cell block due to his loud snoring. In
support, Altaian argued that the other inmates had access to
his property because he lived in a cubicle that lacked a
method for excluding other inmates and that his cubicle mate,
who disliked him, frequently had visitors.
found that Altaian had committed offenses under "Code
305 - Possession of Anything Not Authorized" and
"Code 331 - Introduction of Non-Hazardous
Contraband." [D.E. 1-1] 3. According to the DHO, Altaian
did not offer "any reliable evidence refuting the
officer's statements that the tobacco was found in [his]
laundry bag and that the laundry bag is his personal
property." Id. The DHO did not find Altman
credible and viewed Altaian's explanation as "an
attempt to evade responsibility" for the offenses. See
Id. at 2. The DHO also found that even if another
inmate had placed the chewing tobacco in Altaian's
laundry bag, that "does not absolve him from the
responsibility of maintaining a contraband-free living space
to the maximum extent possible" in light of the
prison's handbook, provided to prisoners, which
instructed prisoners to regularly inspect their personal
areas for contraband. Id. at 2-3. Thus, the DHO
determined that Altman had committed the offenses and
sanctioned him with a loss of 14 days of good
conduct time and 10 days in disciplinary segregation for
violating Code 305, and a loss of 14 days of good conduct
time and restricted his commissary privileges for 90 days for
violating Code 331. Id. at 3.
appealed the DHO's decision. On appeal, the Regional
Director found the allegations in the incident report and the
evidence supported a Code 331 violation and amended
Altaian's disciplinary record to reflect this decision.
See Id. at 15. Thus, Altman received an Amended DHO
Report that no longer included Code 305 violation and reduced
his sanction to the forfeiture of 14 days of good conduct
time and a 90-day restriction on his commissary privileges.
See Id. at 12. The Regional Director,
however, found that "Section II of the incident report
and the evidence support Code 331, Possession of
Non-Hazardous Contraband, or Tobacco." Id. at
M&R Judge Numbers found that sufficient evidence existed
to support the disciplinary action, and recommended granting
the government's motion to dismiss. Altaian objects to
Judge Numbers's findings that he admitted to possessing
the tobacco, see Obj. [D.E. 15] 1-2, and to Judge
Numbers's conclusion that there was "some
evidence" to support his Code 331 conviction. See
id. at 3.
procedural safeguards apply when loss of statutory good time
credit is at issue. See Wolff v. McDonnell 418 U.S.
539, 557 (1974). Under Wolff, an inmate is entitled to the
following: (1) written notice of the charges at least
twenty-four hours in advance of the hearing; (2) a written
statement by the factfinders as to the evidence relied on and
the reasons for disciplinary action; and (3) the opportunity
to call witnesses and present documentary evidence in his
defense when permitting him to do so will not be unduly
hazardous to institutional safety or correctional goals.
Id. at 564-66.
addition to these procedural safeguards, "some evidence
in the record" must support a finding revoking a
prisoner's good-time credit. Superintendent
Mass, Corr. Tnst. Walpole v. Hill. 472 U.S.
445, 454-55 (1985). "Ascertaining whether this standard
is satisfied does not require examination of the entire
record, independent assessment of the credibility of
witnesses, or weighing of the evidence. Instead, the relevant
question is whether there is any evidence in the record that
could support the conclusion reached by the
[decisionmaker]." Id. at 455-56; Baker v.
Lyles. 904 F.2d 925, 932 (4th Cir. 1990) (quotation
omitted). The "some evidence" standard is a highly
deferential standard of review. See, e.g..
Hill. 472 U.S. at 455-56.
Airman argues that Judge Numbers erred in finding that Airman
admitted to possessing the tobacco. See M&R [D.E. 14] 5.
Even assuming that Altman never admitting to possessing
tobacco, the court finds that some evidence supports
Airman's Code 331 violation. See, e.g.. [D.E.
1-1] 12, 15.
Altman argues that the DHO Report described Altaian's
violation as concerning the introduction of contraband into
the prison, rather than possession of contraband, and that no
evidence supported a finding that he had introduced
contraband. Airman's argument fails. First, Code 331
encompasses possessing, introducing, or manufacturing
non-hazardous contraband or tobacco. Although the DHO Report
used the label "Introduction of Non-Hazardous Contraband
or Tobacco, " the statements in the DHO Report and the
DHO's Notice of Discipline Hearing clarify that the
charge was actually for possession of non-hazardous
contraband, the tobacco found in his laundry bag. See [D.E.
1-1] 10, 15; [D.E. 10-4] 1. When the Regional Director found
a Code 331 violation, the Regional Director found Altman
responsible for the offense of possession of non-hazardous
contraband or tobacco, the offense for which the DHO imposed
punishment. See [D.E. 1-1] 15. Moreover, Code 331 prohibits
either possession or introduction of contraband, and Judge
Numbers correctly concluded that "some evidence"
supports finding that Altman possessed tobacco regardless of
whether he introduced the tobacco into the facility. See
generally Reiter v. Sonotone Corp.. 442 U.S. 330,
339 (1979); United States v. Cooper. 962 F.2d 339,
341 (4th Cir. 1992), abrogated on other
grounds by Johnson v. United States. 529 U.S.
694 (2000). Notably, the DHO examined the record (including
credibility) and found that "Altman has not offered any
reliable evidence refuting the officer's statements that
the tobacco was found in Airman's laundry bag and that
the laundry bag is his personal property, " that the
tobacco was found wrapped inside a t-shirt within the laundry
bag, and that prison guidelines instructed prisoners to check
their personal areas for contraband. [D.E. 1-1] 12. The
Regional Director upheld the Code 331 violation but clarified
that "the evidence support[s] [a] Code 331, Possession
of Non-Hazardous Contraband, or Tobacco" violation
rather than a violation based on introduction. [D.E. 1-1] 15.
Although Airman notes that the Regional Director dismissed
the Code 305 conviction for possession of unauthorized
material, see [D.E. 1-1] 12, 15, the Regional Director's
decision dismissing Airman's conviction for the Code 305
offense did not affect the Code 331 possession charge against
Airman. See [D.E. 1-1] 15.
Airman argues that McClung v. Shearin. 90
F.App'x 444 (4th Cir. 2004) (per curiam) (unpublished),
prevents the court from finding that he constructively
possessed the tobacco because other inmates had access to his
cell and his laundry bag. Obj. at 3. However, in his response
to the government's motion to dismiss, Airman explicitly
stated that he was not challenging the sufficiency of the
evidence against him as to possession. Resp. Opp. Mot. Dism.
at 2 (stating that the government "puts forth a legal
theory which suggests that some evidence needs to be met in
determining 'constructive possession', however, this
is misplaced as possession albeit constructive or otherwise,
is not the element Petitioner is challenging in his instant
petition."). Instead, Airman argued that his challenge
is based upon the government's failure to "provide
or establish any evidence that [Airman] actually
'introduced' the contraband into FCI
Morgantown." Id. As explained, however, neither
the Regional Director nor the DHO found that Airman
introduced the tobacco into the prison. See [D.E. 1-1] 15.
Thus, McClung does not help Airman.
the court OVERRULES plaintiffs objection [D.E. 15], ADOPTS
the findings and conclusions in the M&R [D.E. 14] except
as modified in this order, and GRANTS the government's