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Shawn Green v. Mark L. Bradt

January 17, 2012

SHAWN GREEN, PETITIONER,
v.
MARK L. BRADT, RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se Petitioner Shawn Green ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254. In the instant petition, Petitioner challenges the constitutionality of four Tier II prison disciplinary hearings held at Elmira Correctional Facility on July 8, September 16, October 23, and December 18, 2008, respectively, in which he was found guilty of all charges and sentenced to serve time in keeplock, with corresponding loss of commissary and telephone privileges.

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

A. The July 8, 2008 Disciplinary Determination

On July 5, 2008, Correction Officer ("C.O.") Masti was assigned to monitor the front entrance door to mess hall II at Elmira Correctional Facility. During that time, Petitioner came out of mess hall I and stood near C.O. Masti. There were approximately 40 other inmates in the hallway. C.O. Masti repeatedly ordered Petitioner to move back into mess hall I area, but Petitioner refused and continued to stand at the mess hall II area. C.O. Masti then ordered Petitioner to produce his identification card, and Petitioner replied that he had left it in his cell. C.O. Masti then conducted a pat frisk on Petitioner and found Petitioner's identification card in his left hand. C.O. Masti prepared an Inmate Misbehavior Report that same day, charging Petitioner with violating rules of inmate behavior 106.10 (refusing a direct order), 107.20 (lying), and 109.12 (refusal to follow movement directions). See Resp't Ex. E at Ex. O (Inmate Misbehavior Report).

1. The Tier II Disciplinary Hearing

On July 8, 2008, a Tier II disciplinary hearing*fn1 was conducted by Hearing Officer Lieutenant Schornsteimer. The hearing officer read Petitioner his rights and obligations, which Petitioner stated that he understood. The hearing officer then read the misbehavior report into the record, and Petitioner pleaded not guilty to the charges. Trans. of 07/08/08 1.

Petitioner testified that he did not hear C.O. Masti's order to return to the mess hall I area. Id. at 1-2. Petitioner testified that he heard C.O. Masti order him to produce his identification card, and Petitioner responded that the card was in his cell. Id. at 2. C.O. Masti then pat frisked Petitioner, and, at that time, Petitioner claimed that he found the card in his left pocket and gave it to the officer. Id. at 1.

2. The Disposition

In a written disposition dated July 8, 2008, the hearing officer found Petitioner guilty of making false statements, refusing a direct order, and a movement regulation violation. See Resp't Ex. E at Ex. R (Disciplinary Hearing Disposition). The hearing officer imposed a penalty of 30 days in keeplock, with corresponding loss of commissary and telephone privileges. Id.

3. The Administrative Appeal

Petitioner administratively appealed the results of the disciplinary hearing, claiming that: (1) the hearing officer was biased; and (2) there was insufficient evidence to support the disposition. See Resp't Ex. E at Ex. S. On July 11, 2008, the hearing officer's determination was affirmed. See Resp't Ex. E at Ex. T (NYS DOC Appeal Form).

B. The September 16, 2008 Disciplinary Determination

On September 11, 2008, Petitioner had gone through the metal detectors outside of the correctional facility's print shop when C.O. Rosemark randomly selected Petitioner to conduct a pat frisk. During the pat frisk, C.O. Rosemark ordered Petitioner to remove his kufi; Petitioner refused, yelling, "I don't have, I don't have to take my kufi off for a pat risk!"*fn2 C.O. Rosemark then explained to Petitioner that a kufi could be searched as part of a pat frisk, and Petitioner replied, "you want it off, you take it off!" C.O. Rosemark ordered Petitioner to remove his kufi several more times, and Petitioner eventually did so. Approximately 15 inmates stopped to observe the commotion, delaying the progress of the pat frisk line. That same day, C.O. Rosemark prepared an Inmate Misbehavior Report, charging Petitioner with violating rules of inmate behavior 106.10 (refusing a direct order), 115.10 (failure to follow frisk procedure), and 104.13 (creating a disturbance). See Resp't Ex. E at Ex. U (Inmate Misbehavior Report).

1. The Tier II Hearing

On September 16, 2008, a Tier II disciplinary hearing was conducted by Hearing Officer Lieutenant Schornsteimer. The hearing officer read Petitioner his rights and obligations, which Petitioner said he understood. The hearing officer then read C.O. Rosemark's misbehavior report into the ...


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