circumstances otherwise dictate that he never had any intention
to utilize his "Informal Resolution" to seek legitimate redress.
If this does turn out to be true, Petitioner's speech will not
be protected under the rule enunciated in Bradley and his
Claim will once again be subject to dismissal. However, on the
sparse record before the Court, no determination regarding this
issue can be made nor can any determination be made whether the
sentencing officer relied upon previously filed retaliatory
reports when passing judgment on Petitioner. As such
Respondent's motion to dismiss this Count is denied.
4. Count XI
Count XI alleges that incident report 561709, issued on
February 12, 1998, was filed in further retaliation against
Petitioner for the "masturbating cat" incident. The facts of
that report, as alleged in the Petition, indicate that
Petitioner received "something of value" from another prisoner
in violation of prison regulations. That "something of value"
was a copy of a court case possibly given to a law library staff
member by another prisoner and ultimately passed to Petitioner.
As a result of this violation, Petitioner was placed for fifteen
days in the prison's "special housing unit" and lost fourteen
days of goodtime credit while the prisoner who allegedly passed
him the unauthorized case was given a verbal warning.
Respondent provides no evidence, let alone some evidence, to
indicate why the severity of Petitioner's sanction for the
violation was greater than the sanction placed upon the prisoner
who allegedly provided him the copy of the court case. Moreover
the two day time discrepancy between the incident report
referenced in Count X and the one referenced here supports
Petitioner's inference that it was filed in retaliation for the
previous incident. Consequently, Respondent's motion to dismiss
Count XI is denied until the record is developed further.
G. Petitioner's Motion to Compel a Polygraph Test
Petitioner seeks an order from the Court mandating that
various individuals undergo polygraph examinations so that he
can show that the allegations contained in various incident
reports are false. The remedy Petitioner seeks is drastic. This
is particularly so in light of the fact that the Court's role in
assessing whether "some evidence" exists to support the claims
contained in the alleged retaliatory incident is limited.
The Court will not retry the merits of those claims nor does
the "some evidence" standard "require examination of the entire
record, independent assessment of the credibility of witnesses,
or weighing of the evidence" presented to prison officials.
Hill, 472 U.S. at 455-56, 105 S.Ct. 2768. As such, it
certainly does not require the Court to order various prison
officials to submit to a court-ordered polygraph test in order
to ascertain if their testimony in a prisoner's disciplinary
hearing was truthful. Consequently, Petitioner's motion denied.
Accordingly, it is hereby
ORDERED that Respondent's motion to dismiss is DENIED; and it
ORDERED that Petitioner's motion to compel a polygraph test is
DENIED; and it is further
ORDERED that the above captioned matter is referred to the
Honorable Ralph W. Smith, Jr., United States Magistrate Judge,
in accordance with Local Rule 72.3(c) and 28 U.S.C. § 636(b),
for all future proceedings; and it is further
ORDERED that the Clerk serve a copy of this order on all
parties by regular mail.
IT IS SO ORDERED.