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Lenroy Mclean v. Duke Terrell - Warden

June 27, 2012

LENROY MCLEAN, PETITIONER,
v.
DUKE TERRELL - WARDEN RESPONDENT.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM & ORDER

Petitioner Lenroy McLean ("Petitioner"), who is currently incarcerated at the Federal Correctional Institution Medium I in Adelanto, California (see Notice of Change of Address, Mar. 18, 2011 (Doc. No. 4)),filed this pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 while incarcerated at the Metropolitan Detention Center located in Brooklyn, New York. Petitioner claims, inter alia, that he was denied due process at a disciplinary hearing resulting in a finding that petitioner participated in a group demonstration while he was held at the Federal Medical Center in Devens, Massachusetts ("FMC Devens"). He seeks to (1) reinstate twenty-seven days of good conduct time taken; (2) expunge the incident report; and (3) be transferred back to a facility closer to his family. (Am. Pet. for Writ of Habeas Corpus ("Am. Pet.") (Doc. No. 7) at 11.)For the reasons set forth below, petitioner's claims are without merit and his amended petition is DISMISSED in its entirety.

BACKGROUND

I.THE CEREMONIAL MEAL

Bureau of Prisons policy states that the chaplain may arrange for inmate religious groups to have one appropriate ceremonial or commemorative meal each year, and that an inmate may attend one religious ceremonial meal in a calendar year. See 28 C.F.R. § 548.20(c) (2012); Program Statement P5360.09, Religious Beliefs and Practices 19-20, Federal Bureau of Prisons (Dec. 31, 2004) ("BOP Program Statement P5360.09").*fn1 In September 2009, the FMC Devens Chaplaincy preapproved the menu for the annual Rastafarian ceremonial meal for the fiscal year of 2010. (See Declaration of Nicole McFarland ("McFarland Decl.") (Doc. No. 15) Ex. A, at 021.) On July 23, 2010, a group of inmates identifying with the Rastafarian faith, including petitioner then housed at FMC Devens, entered Chaplain Prickett's office to voice concern that the preapproved meal would consist of haddock, which they believed was an unclean scavenger fish and thus inappropriate for the Rastafarian diet. The inmates indicated that they would not eat the haddock and began to negotiate with Chaplain Prickett, seeking a new date for the ceremonial meal with red snapper, or to have Food Service cook them a pot of rice and peas for the originally scheduled meal. (Id.; see also Am. Pet. at 6.)

Chaplain Prickett told the group of inmates that the ceremonial meal memo and one ritual food item for each faith group were approved in September 2009, and that he would check with Food Service staff on whether they obtained the approved ritual item for the Rastafarian group. (See McFarland Decl. Ex. A, at 021.) Later in the day, Chaplain Prickett reconvened with the inmates in the chapel to inform them that haddock was the preapproved ritual item, and that the rest of the food items in the meal were from the master menu for the day. Chaplain Prickett also told the inmates that all previous ceremonial meals for other faith groups in the same fiscal year had received the same treatment consisting of one preapproved ritual food item and what was on the master menu for the day of the meal.*fn2 According to Chaplain Prickett, one of the inmates confronted the chaplain, asking: "Will you admit to us that the fish being served today is a scavenger fish?" After asking the inmates present if they were planning to eat their ceremonial meal at the scheduled time and getting several negative responses, the chaplain offered to wait five minutes in case any inmate wanted to walk with him to Food Service facilities to eat the meal. The inmates refused. (See id. at 022.)

Chaplain Prickett informed Food Service Administrator Lohmann of what had transpired, and Lohmann in turn advised Acting Captain Ortiz of the situation. Lohmann and Ortiz came to the chapel where inmates of the Rastafarian faith group were gathered and warned them that if they continued to boycott the ceremonial meal, their actions could be considered a group demonstration and have an adverse effect on the Rastafarian community. (See id. at 006.) Around 3:25 p.m., roughly an hour after the original scheduled meal time, the inmates collectively decided to leave the chapel and participate in the ceremonial meal. (See id. at 022.)

Petitioner concedes he was present in the chaplain's office and chapel but contends he remained silent during the incident. (Am. Pet. at 8.)

On August 19, 2010, after investigating the incident, Special Investigative Agent ("SIA") Brown wrote an incident report, charging Petitioner with the prohibited act of engaging in or encouraging a group demonstration and referring the charge to the Discipline Hearing Officer ("DHO") for further hearing. Petitioner was provided a copy of the incident report on the same day, according to Bureau of Prisons ("BOP") records. (See McFarland Decl. Ex. A, at 008, ¶ 24.) According to SIA Brown's incident report, Petitioner indicated to him that weeks prior to the ceremonial meal, Petitioner and several other inmates had questioned Chaplain Prickett about the items on the ceremonial meal but never received an answer. (See id. at 006.) On August 23, 2010, as he acknowledged with his signature, Petitioner was advised in writing by a BOP staff member of his rights before the DHO, including but not limited to the right of representation by a staff member and the right to call witnesses. (See id. at 026.)

II.DHO HEARING AND REPORT

A disciplinary hearing was held on September 8. DHO Amico issued a written report dated September 28, 2010, finding that Petitioner had engaged in or encouraged a group demonstration in violation of disciplinary code 212,*fn3 and imposing a sanction of twenty-seven days of good conduct time deduction, fifteen days of disciplinary segregation, and recommended transfer to another facility. (See id. at 001-004.) The DHO found that Petitioner rejected the meal and encouraged others not to partake in it, that he entered Chaplain Prickett's office to question, challenge and negotiate with him, and that he refused to leave the chapel and go to the dining hall. (See id. at 002-03.) In making his findings, DHO Amico explained that he relied specifically on the Incident Report, SIA Brown's Report, and memos from staff members Angela Inman, the Religious Services Assistant, and Chaplain Prickett. (See id..) DHO Amico also specifically considered Petitioner's position during the disciplinary hearing that Petitioner did not say anything during, encourage anyone in, or had anything to do with a group demonstration, but gave greater weight to the statements of SIA Brown and Chaplain Prickett charging that Petitioner had vocally participated in the protest. (See id..) DHO Amico concluded that Petitioner's continued presence during the incident with other inmates of the Rastafarian group-- who had vocally protested the meal at Chaplain Prickett's office, attempted to negotiate for a different fish and, despite Chaplain Prickett's request, refused to leave the chapel and eat the ceremonial meal at the scheduled time--showed Petitioner's support of and participation in the group demonstration, (see id..) and that Petitioner did not present sufficient evidence to the refute the disciplinary code violation. (See id. at 004.)

DHO Amico noted in his written report, and Petitioner does not dispute, that at the disciplinary hearing, Petitioner was read his due process rights by the DHO and stated he understood those rights. At no point during the hearing did Petitioner raise any procedural issues, request staff representation, or present written documentation as evidence. (See id. at 002.) While the form entitled "Notice of Discipline Hearing Before the DHO" issued to Petitioner reflects that he wished to call witnesses at the hearing, (see id. at 024), the undisputed record also reflects that Petitioner waived his right to call witnesses by signing a Waiver of Rights one day before the disciplinary hearing took place. (See id. at 025.)

III.ADMINISTRATIVE APPEALS

On October 1, 2010,Petitioner appealed the DHO's findings to the Regional Director and argued, among other things, that he did not have a fair hearing because the DHO was biased and failed to call witnesses. (See McFarland Decl. Ex. B, at 028-029.) The Regional Director found the contention to be not credible and pointed to Petitioner's waiver of his right to call witnesses at the DHO hearing, as reflected by his signature on the waiver of rights form. (See id. at 030; see also McFarland Decl. Ex. A, at 025.) the Regional Director denied Petitioner's appeal of the DHO's findings on November 10, 2010. (See McFarland Decl. Ex. B, ...


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