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Tribble v. Killian

July 13, 2009

ROBERT A. TRIBBLE, PETITIONER,
v.
WARDEN J. M. KILLIAN; AL WELCH, RESPONDENT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

OPINION AND ORDER

Pro se petitioner Robert A. Tribble, an inmate at the Federal Correctional Institute in Otisville, New York ("FCI Otisville"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the loss of good-time credits while incarcerated at United States Prison ("USP") Atlanta when a Discipline Hearing Officer sanctioned him with the loss of twenty-seven days of good-time credits for engaging in consensual sexual intercourse with another inmate and then claiming he was raped. (Dkt. No. 1: Pet. ¶ 12(B); Dkt. No. 6: Pet. Addendum Pt. I; Dkt. No. 12: Tribble 6/2/09 Letter to Court.) Tribble previously brought the same claim in the Northern District of Georgia, and that action still is pending.

The parties have consented to decision of this petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 8.)

For the reasons set forth below, Tribble's habeas petition is transferred to the United States District Court for the Northern District of Georgia for consolidation with his prior action pending there.

FACTS

Occurrences at USP Atlanta and Tribble's N.D. Ga. Lawsuits

On March 4, 2008, Tribble filed a Request for Administrative Remedy with the Bureau of Prisons ("BOP") Southeast Regional Office alleging that members of the USP Atlanta staff racially discriminated against him. (Dkt. No. 15: Mason Aff. ¶ 7 & Ex. E at 1.) Tribble claimed that an inmate had drugged and raped him, and although Tribble had reported the incident, the USP Atlanta staff failed to do a "real" investigation because Tribble was "white and the other's [sic] black." (Mason Aff. Ex. E at 1.) The BOP Regional Office rejected Tribble's request for failure to exhaust prison-level administrative remedies. (Mason Aff. ¶ 8 & Ex. E at 2.)

Tribble filed a Bivens complaint in the Northern District of Georgia, Tribble v. Warden, No. 08-CV-0494 (N.D. Ga.), and amended that complaint on March 20, 2008. (Mason Aff. ¶¶ 9 & Ex. F.)*fn1

On March 24, 2008, Lieutenant Michael Howard filed an Incident Report regarding Tribble's rape claim. (Mason Aff. ¶ 11 & Ex. H.) Lt. Howard's report stated that the evidence did not support a finding of rape, but did support a finding that Tribble had engaged in consensual sex with another inmate. (Mason Aff. Ex. H.) Lt. Howard referred the matter to a Discipline Hearing Officer ("DHO"), who found Tribble guilty of "[e]ngaging in a [s]exual [a]ct" and "[l]ying [or] [p]roviding a [f]alse [s]tatement" and sanctioned him with, inter alia, loss of twenty-seven days of good-time credit. (Mason Aff. ¶ 12 & Exs. H-I.)

On April 21, 2008, following the DHO's ruling, Tribble filed a combined Bivens and habeas corpus action in the Northern District of Georgia against Lt. Howard, alleging that Lt. Howard falsified the Incident Report regarding Tribble's alleged rape in retaliation for Tribble's amended complaint in his prior Georgia case of Tribble v. Warden. (Mason Aff. ¶ 17 & Ex. M: Tribble v. Howard, N.D. Ga., 08-CV-1488.) Tribble demanded: (1) "meaningful[] and timely" access to administrative remedy procedures; (2) reinstatement of twenty-seven days of good-time credit; and (3) expungement of the Incident Report from his record. (Mason Aff. Ex. M, ¶ V.) That case is still pending in the Northern District of Georgia. (Mason Aff. ¶ 18 & Ex. N: Tribble v. Howard, N.D. Ga., 08-CV-1488, docket sheet.)*fn2

Tribble's Transfer from USP Atlanta to FCI Otisville and This Action

On June 25, 2008, Tribble was transferred from USP Atlanta to FCI Otisville in New York. (Mason Aff. Ex. D.) On October 31, 2008, Tribble requested that he be placed in protective custody. (Mason Aff. ¶ 22 & Ex. R.) FCI Otisville complied with Tribble's request "due to serious danger of bodily harm should he be released into FCI Otisville's general population." (Mason Aff. ¶¶ 24-25 & Ex. R.)

On April 1, 2009, Tribble brought the instant action against Warden J.M. Killian and Al Welch of FCI Otisville. (Pet.; Pet. Addendum.) Tribble claimed that he was (1) excluded from participation in inmate-run programs due to racial discrimination; (2) denied timely access to administrative remedy procedures; and (3) unlawfully detained in the prison's Special Housing Unit ("SHU"). (Pet. ¶¶ 12(A), 12(C)-(D); Pet. Addendum.) Tribble also reiterated his claims from Tribble v. Howard, No. 08-CV-1488 (N.D. Ga.), that he was improperly deprived of twenty-seven days of good-time credits following a disciplinary determination that he had engaged in consensual sexual intercourse with another inmate at USP Atlanta. (Pet. ¶ 12(B); Pet. Addendum.) Tribble sought (1) expungement of the Incident Report; (2) reinstatement of twenty-seven days of good-time credits; (3) "timely [and] meaningful" access to administrative relief at FCI Otisville; and (4) release into the general prison population at FCI Otisville, or transfer to another institution. (Pet. ¶ 14; Pet. Addendum.)

Tribble's transfer request recently was approved and Tribble is in the process of being transferred to FCI in Pekin, Ill. (Mason Aff. ¶¶ 28-30 & Ex. V; Dkt. No. 12: Tribble 6/2/09 Letter to Court.) As a result, Tribble amended his petition to drop all claims relating to his detention at FCI Otisville because they were "moot and a waste of time." (6/2/09 Tribble Letter to Court.) Tribble also had confirmed in a May 11, 2009 letter to the Court that this action was a habeas action not a Bivens action. (Dkt. No. 10; see also Dkt. No. 9: 5/26/09 Memo Endorsed Order on Gov't 5/20/09 Letter.)*fn3 Tribble's habeas petition as amended by Tribble's letters now contains only the "single issue" of the reinstatement of the twenty-seven days of good-time credits arising from Tribble's detention at USP Atlanta. (6/2/09 Tribble Letter to Court; see also Dkt. No. 9: 5/26/09 Memo Endorsed Order.) This claim is identical to the habeas claim previously raised in the ongoing N.D. Georgia action of Tribble v. Howard, No. 08-CV-1488. (See 6/2/09 ...


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