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Emjadia Porter v. Russell Perdue

June 6, 2011

EMJADIA PORTER, PETITIONER,
v.
RUSSELL PERDUE,*FN1 RESPONDENT.



The opinion of the court was delivered by: Thomas J. Mcavoy Senior, United States District Judge

MEMORANDUM-DECISION AND ORDER

I. BACKGROUND

A. Related Administrative Proceedings

According to the administrative record supplied to this Court, on April 25, 2008, petitioner, pro se Emjadia Porter, who at the time was incarcerated at the Federal Correctional Institution ("F.C.I.") in Fort Dix, New Jersey, received an incident report prepared by an officer at that facility. That report alleged that on April 12, 2008, Porter and another prisoner at that facility, inmate Kelly, "exchanged words ... over a television program." See Incident Report (4/25/08) (Dkt. No. 6-2 at p. 5) ("Incident Report"). Other inmates who were in the room where the television was located then "observed [Porter] picking inmate Kelly up and slamming him onto the floor." Id. As a result of that incident, inmate Kelly "sustained a superficial laceration above his left eye from his face striking the floor, head first." Id. Porter was "medically assessed" at the time and did not appear to have "sustained any visible injuries" as a result of the incident. Id.

On April 29, 2008, Porter received a copy of the Incident Report, as well as a "Notice of Discipline Hearing" form. Dkt. No. 6-2 at p. 7 ("Discipline Hearing Form"). On that form, Porter indicated that he did not wish to have a member of the Fort Dix staff assist him in preparing Porter's defense to the charges contained in the Incident Report, however Porter noted on the Discipline Hearing Form that he wished to call inmate Kelly -- the individual whom Porter was accused of assaulting -- as a witness at the disciplinary hearing. Id. Porter indicated on that form that inmate Kelly would testify that Porter "had nothing to do with [Kelly's] injuries." Id.

According to the testimony provided to this Court by Anthony C. Boyce, the Hearing Officer who presided over the disciplinary hearing that was conducted as a result of the Incident Report, "institution staff contacted inmate Kelly and asked him to provide a statement regarding the alleged assault. Inmate Kelly stated he did not want to discuss the incident and that he was not going to talk." See Declaration of Anthony C. Boyce (11/10/10) (Dkt. No. 6-2 at p. 1) ("Boyce Decl.") at ¶ 7. As a result, inmate Kelly was not called as a witness at Porter's disciplinary hearing.*fn2

Porter's disciplinary hearing relating to the Incident Report took place on May 5, 2008. See Dkt. No. 6-2 at pp. 24-27 ("Hearing Officer Report"). Following that proceeding, Hearing Officer Boyce summarized the basis for his finding that Porter was guilty of the conduct charged in the Incident Report. Specifically, the Hearing Officer noted that, after Porter had been read the allegations contained in the Incident Report, he claimed that he "had no altercation with Kelly and [Porter] was not in the t.v. room." Hearing Officer Report at p. 1. Porter further noted that he had not had been the subject of any incident reports for a number of years. Id.*fn3 However, Hearing Officer Boyce credited the testimony of the employee who investigated the incident over the testimony provided by Porter at the hearing, in part because Porter had "everything to gain and nothing to lose" in denying that he assaulted inmate Kelly. Hearing Officer Report at p. 2. The Hearing Officer thereafter concluded that "the greater weight of evidence" demonstrated that Porter was guilty of "a violation of code 224, minor assault on another inmate." Id. at p. 3.*fn4 He then imposed the following sanctions on Porter:

Disciplinary Segregation: 30 Days

Disallow Good Conduct Time: 27 Days Loss of Privilege (COMM): 60 days Loss of Privilege (PHONE): 60 Days Loss of Privilege (VISIT): 60 Days Id.

Porter thereafter unsuccessfully pursued administrative challenges relating to the Hearing Officer's determination. See, e.g., Response in Opposition to Petition (Dkt. No. 6) at p. 3 (respondent discussing the administrative proceedings pursued by Porter challenging the finding of the Hearing Officer).

B. This Action

Porter commenced the present action pursuant to 28 U.S.C. § 2241 on August 9, 2010. See Dkt. No. 1 ("Petition"). In that pleading, Porter claims that his Due Process rights were violated at the subject disciplinary hearing because: i) he was not notified about inmate Kelly's inability to testify at the disciplinary hearing until after that proceeding was concluded; ii) Lieutenant C. Lewars provided false information to the hearing officer regarding statements made by Porter to the Lieutenant; and iii) inmate Kelly was not called as a witness to testify on Porter's behalf, and because "the adjudication of guilt rested on a lie." Id. at pp. 3-4. By this action, Porter requests that this Court restore the twenty-seven (27) days of good time credit that were forfeited by Porter as a sanction following the Hearing Officer's conclusion that Porter assaulted inmate Kelly. Id. at p. 4.

On December 6, 2010, the Office of the United States Attorney for the Northern District of New York, acting on respondent's behalf, filed a response in opposition to Porter's petition. See Dkt. No. 6. Along with that response, the respondent provided this Court with documents related to the administrative proceeding challenged herein, as well as the declaration completed by Hearing Officer Boyce discussed above. See Attachments to Dkt. No. 6.

On December 16, 2010, Porter filed a "Traverse" in further support of his habeas application. ...


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