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Gorbey v. Warden

United States District Court, W.D. Virginia, Roanoke Division

September 19, 2019

MICHAEL S. GORBEY, Petitioner,
WARDEN, Respondent.



         Michael S. Gorbey, a federal inmate proceeding pro se, filed a petition for writ of habeas corpus pursuant 28 U.S.C. § 2241, challenging a disciplinary proceeding that resulted in, inter alia, the loss of good conduct time (“GCT”). Respondent filed a motion for summary judgment and this matter is ripe for disposition.[1] For the reasons stated herein, I will grant respondent’s motion for summary judgment.


         While incarcerated at the United States Penitentiary (“USP”) in McCreary, Kentucky, Gorbey received an Incident Report for violating Prohibited Act Code 297 (Use of Telephone for Abuses Other than Criminal Activity).[2] The Incident Report indicated that on April 23, 2014, a Unit Secretary called for an inmate (“Inmate X”) to come to the Unit 1 Team Area to discuss a form he had submitted stating that he was out of telephone minutes and was requesting additional minutes. While calling for Inmate X, the Unit Secretary noticed that Inmate X was using a telephone station in Unit 1B. After discussing the request with Inmate X, the Secretary checked the Bureau of Prison’s (“BOP”) TRUFONE system (the inmate telephone system) to determine whose telephone account was being used when Inmate X was on the telephone. It was determined that the account being used belonged to another inmate (“Inmate Y”). Inmate Y was not in the unit during the call; rather, he was at recreation. Upon further investigation, the Unit Secretary determined that Inmate X had, on many occasions, used other inmates’ accounts to place telephone calls to a particular number. Inmate X had used not only Inmate Y’s account, but also Gorbey’s account, as well as others. In monitoring several of the calls to that telephone number, it was determined that the same inmate voice was on the call, which belonged to Inmate X. Prison officials determined that Gorbey was allowing Inmate X to use his account in order to circumvent the monitoring systems so that Inmate X’s personal calls would not be monitored.

         Gorbey received a copy of the Incident Report on April 24, 2014. A Lieutenant tasked with conducting an investigation into the incident advised Gorbey of his rights on the same day. Gorbey stated that he understood his rights, but argues that he “had no idea that allowing [Inmate X] to use [his] phone account was circumventing phone monitoring.” The investigator noted that based upon the evidence, Gorbey had been properly charged.

         A Unit Discipline Committee (“UDC”) hearing was held on April 28, 2014. During the UDC hearing, Gorbey stated “I feel this charge does not meet a 297. It should be a 397.[3] We did not avoid monitoring.” The Incident Report was thereafter forwarded to the Disciplinary Hearing Officer (“DHO”) for further processing.

         Gorbey was provided a Notice of Discipline Hearing Before the DHO form on April 28, 2014. Gorbey requested a staff representative to be “appointed by Warden, ” and indicated that he did not wish to call any witnesses. Gorbey was also provided a form advising him of his rights at the DHO hearing.

         The DHO prepared a Memorandum for the Warden requesting that a staff representative be appointed for the hearing. The DHO noted that by policy, neither Secretary Tucker (who wrote the Incident Report) nor Counselor Lawson (who conducted the UDC hearing) could be appointed as Gorbey’s staff representative. The Warden appointed Counselor Lumley as the staff representative.

         On June 4, 2014, a DHO hearing was conducted. The DHO read aloud part of the Incident Report and asked Gorbey if the report was true, to which Gorbey stated “Yeah, I would put my [Phone Access Code (“PAC”)] number in, say my name, and then let him use my phone time.”

         The DHO noted that Gorbey waived his right to a staff representative, despite Counselor Lumley having been appointed. Gorbey made no comments about wanting a staff representative during the hearing. The DHO made a note on the Notice of Discipline Hearing Before the DHO form that Gorbey had voluntarily waived his right to a staff representative, and it is signed and dated June 4, 2014, by the DHO and another staff member. The DHO noted in the findings that he reviewed Gorbey’s rights with him and he did not request a staff representative. Gorbey did not request witnesses and he had no documentary evidence to present.

         The DHO noted that Gorbey’s due process rights were reviewed with him at the time of the hearing and that he indicated that he understood his rights and had received a copy of the Incident Report. In making his decision, the DHO relied upon the written Incident Report by staff and Gorbey’s admission, noting that Gorbey did not refute any portion of the description of the incident as reported in the Incident Report. The DHO found, based upon the evidence, that Gorbey committed the prohibited act of a Code 297 violation, Use of the Telephone for Abuses Other than Criminal Activities.

         The DHO imposed sanctions including disallowance of 27 days good conduct time and loss of telephone privileges for 90 days. The DHO documented that the sanctions were imposed because an attempt to abuse the telephone privilege poses a serious threat to the ability of staff to provide for the safety and security of the institution. The DHO explained that the sanctions were imposed to hold Gorbey accountable for his behavior and to deter him from engaging in similar behavior in the future.

         Gorbey was advised of his appeal rights. Gorbey was provided a copy of the final DHO report on June 10, 2014. Gorbey appealed the disciplinary action, fully exhausting his administrative remedies with the BOP.

         Gorbey filed a habeas petition pursuant to § 2241, alleging that: 1) he was denied his right to a staff representative at the disciplinary hearing, 2) he was punished more severely than other inmates involved in the incident, and 3) he is not guilty of the charge for which he was convicted. Gorbey seeks a ...

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