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Shahan v. Ormond

United States District Court, E.D. Virginia, Richmond Division

December 19, 2018

J. RAY ORMOND, Respondent.



         Michael Henry Shahan, a federal inmate proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2241 ("§ 2241 Petition," ECF No. 1). Shahan's claims stem from his conviction within the Bureau of Prisons ("BOP") for the institutional infraction of possession of stolen property. Specifically, Shahan raises the following claims for relief:[1]

Claim One: The Discipline Hearing Officer ("DHO") disallowed twenty-seven days of his good conduct time ("GCT") and failed to provide him with a copy of the DHO Report in violation of 28 C.F.R. § 541.8(h) and BOP Program Statement 5270.09.[2] (§ 2241 Pet. 6; ECF No. 9, at 5 n.l.)
Claim Two: He was denied due process when "[he] was forced to serve out the sanctions as imposed by [the] DHO without the opportunity to appeal the sanctions or the loss of GCT." (§ 2241 Pet. 7.)

         Respondent filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment ("Motion for Summary Judgment," ECF No. 4), [3] asserting, inter alia, that Shahan's claims lack merit.[4] Shahan filed a Response. (ECF No. 9). For the reasons set forth below, Respondent's Motion for Summary Judgment (ECF No. 4) will be granted. Shahan's § 2241 Petition will be denied because Shahan's claims are without merit.


         Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). It is the responsibility of the party seeking summary judgment to inform the Court of the basis for the motion, and to identify the parts of the record that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or "'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.R.Civ.P. 56(c) and 56(e) (1986)).

         In reviewing a summary judgment motion, the Court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251 (citing Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party ... upon whom the onus of proof is imposed." Id. (quoting Munson, 81 U.S. at 448). Additionally, "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials ....").

         In support of his Motion for Summary Judgment, Respondent submits: (1) the Declaration of Sylvia G. Harris, Legal Assistant at the Federal Correctional Complex in Petersburg, Virginia ("FCC Petersburg"), ("Harris Decl.," ECF No. 5-1); (2) an Incident Report (id. Attach. 1, ECF No. 5-2); (3) a Notice of Discipline Hearing Before the DHO form (id. Attach. 2, ECF No. 5-3); (4) an Inmate Rights at Discipline Hearing form (id. Attach. 3, ECF No. 5-4); (5) a DHO Report (id. Attach. 4, ECF No. 5-5); and (6) records of Shahan's administrative remedy requests (id. Attach. 5, ECF No. 5-6).

         Shahan signed his § 2241 Petition under penalty of perjury. (§ 2241 Pet. 9.) Additionally, Shahan swore to the contents of his Response under penalty of perjury. (ECF No. 9, at 13.) Shahan also submitted exhibits with his § 2241 Petition (ECF No. 1-1, at 1-6), and with his Response (ECF Nos. 9-2 to 9-7).

         In light of the foregoing principles and submissions, the following facts are established for purposes of the Motion for Summary Judgment. The Court draws all permissible inferences in favor of Shahan.


         Shahan is currently serving a 120-month sentence imposed by the United States District Court for the Northern District of Texas on December 17, 2015. (Mem. Supp. Mot. Summ. J. ¶ 1, ECF No. 5 (citing United States v. Shahan, No. 3:15-CR-00202-N-l (N.D. Tex. Dec. 17, 2015), ECF No. 35).) The events giving rise to the instant § 2241 Petition occurred at FCC Petersburg, and Shahan was incarcerated at FCC Petersburg when he initiated this action. (§ 2241 Pet. 1; see Mem. Supp. Mot. Summ. J. ¶ 2.)

         On August 23, 2017, staff at FCC Petersburg were searching inmates "during the 6pm compound move." (Harris Decl. Attach. 1, ECF No. 5-2, at 2.) The officer who conducted the search reported:

... I was shaking down inmates by the recreation gate. I called inmate Michael Shahan ... over to check his bag. While checking inmate Shahan's bag I discovered two stolen recreation Softball gloves. On one of the softball gloves, inmate Shahan had his register number written on it. I asked inmate Shahan where did he get the gloves from and he said he received the gloves from another inmate. I informed inmate Shahan that the gloves w[]ere stolen. I knew the softball gloves belong to the recreation department because the tag was ripped off and it left two holes where we put the leather tag on the gloves.

(Id.) The Incident Report charging Shahan with Possession of Stolen Property, in violation of BOP Prohibited Act 226, was filed later that same day. (Id.)

         Shahan received a copy of the Incident Report on August 24, 2017. (Id.) At that time, Shahan was advised of his institutional rights. (Id. at 3.) Shahan indicated that he "understood his rights" and that he "did not wish to request a staff representative." (Id.) Shahan requested that another inmate be interviewed regarding the incident. (Id.) On August 24, 2017, staff at FCC Petersburg completed an investigation into the incident. (Id.) During the investigation, "when questioned in regards to the [I]ncident [R]eport [Shahan] stated, 'I got those gloves from another [i]nmate who transferred out. I didn't know they were recreation[']s gloves[.]'" (Id.) As Shahan had requested, another inmate was interviewed, and the inmate reported: "Shahan didn't know [t]hose gloves were recreation[']s gloves. Those gloves were thrown in the hot trash when recreation bought new gloves. Another inmate [r]emoved those gloves from the hot trash. They were later given to Shahan when that inmate transferred out of Petersburg." (Id. (internal quotation marks omitted).) Upon completion of the investigation, the investigator recommended that the report be forwarded to the Unit Discipline Committee ("UDC"). (Id.)

         On August 25, 2017, Shahan appeared before the UDC. (Harris Decl. ¶ 6 (citation omitted).) During the UDC hearing, Shahan stated: "I did not know [the gloves] were stolen due to be[ing] a new arrival to the institution, and hav[ing] received them [from] other inmates[.] They were discarded to my acknowledgement." (Id. Attach. l, ECF No. 5-2, at 2 (internal quotation marks omitted).) The UDC referred the matter to the DHO for further hearing "[d]ue to the severity of the incident." (Harris Decl. ¶ 6 (citation omitted).) Later that same day, Shahan received written notice that the matter was being referred to the DHO for further hearing. (Id. Attach. 2, ECF No. 5-3, at 2.) Shahan also received written notice of his rights at the hearing, and he acknowledged being advised of his rights. (Id. Attach. 3, ECF No. ...

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