United States District Court, S.D. New York
ORDER ADOPTING REPORT & RECOMMENDATION
VALERIE CAPRONI, United States District Judge
David Sharabi (“Petitioner”), a pro se
prisoner, filed this habeas corpus petition
(“Petition”) pursuant to 28 U.S.C. § 2241 to
challenge his loss of 27 days of good-conduct time
(“GCT”). Petitioner challenges the Bureau of
Prisons' (“BOP”) refusal to recognize
self-defense as a defense in during a BOP disciplinary
proceeding for fighting.
Undersigned referred this case to Magistrate Judge Henry B.
Pitman. Order of Reference to a Magistrate Judge, Dkt. 5. On
November 7, 2016, Magistrate Judge Pitman issued a Report and
Recommendation (“R&R”) recommending that this
Court dismiss the Petition because the BOP's refusal to
recognize the defense of self-defense did not violate
Petitioner's right to due process. R&R, Dkt. 18. No
party filed any objections to the R&R. For the following
reasons, this Court ADOPTS the R&R in its entirety, and
DENIES the Petition.
6, 2014, Petitioner fought with another inmate. Declaration
of Adam M. Johnson (“Johnson Decl.”), Exhs. A, C,
Dkt. 10. Petitioner was found guilty of Fighting with Another
Person, in violation of 28 C.F.R. § 541.3's
Prohibited Act Code 201 (“Code 201 violation”).
Johnson Decl., Ex. C. As a result, Petitioner lost 27 days of
GCT and was sentenced to 15 days of disciplinary segregation
and three months of restricted commissary privileges. Johnson
Decl., Ex. C. After exhausting his administrative remedies,
Petitioner filed this Petition, alleging that the deprivation
of 27 days of GCT was unlawful because he was not allowed to
assert self-defense during his prison disciplinary
proceedings. Petition for Writ of Habeas Corpus
(“Pet.”) at 1, 5-6, Dkt. 2; see also
Petitioner's Reply to Respondent's Return and
Memorandum of Law in Opposition to Petition for Writ of
Habeas Corpus (“Reply”) at 2, Dkt. 13.
R&R, Magistrate Judge Pitman recommended that this Court
find that the Due Process clause does not require
self-defense to be recognized in prison disciplinary
proceedings. This Court agrees and adopts the R&R in its
reviewing a report and recommendation, a district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C). When no
objections are made to a magistrate judge's report, a
district court may adopt the report unless “clear error
on the face of the record” is present. Phillips v.
Reed Grp., Ltd., 955 F.Supp.2d 201, 211 (S.D.N.Y. 2013).
Because no objections were filed in this case, the Court
reviews the R&R for clear error.
by pro se litigants are construed more leniently
than submissions by lawyers and are interpreted to raise the
strongest arguments they suggest. Triestman v. Federal
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(citing cases). This Court notes that although Magistrate
Judge Pitman did not explicitly state that he was construing
Plaintiff's submissions liberally, the R&R reflects
arguments presented in the Plaintiff's submissions viewed
in the light most favorable to him.
argues that the BOP's policy of refusing to recognize
self-defense as a defense to allegations of fighting is
unconstitutional. Pet. at 6. Respondent argues that there is
no constitutional right to assert self-defense in the context
of prison disciplinary proceedings. Respondent's Return
and Memorandum of Law in Opposition to Petition for Writ of
Habeas Corpus (“Opp.”) at 7, Dkt. 9. Magistrate
Judge Pitman agreed with Respondent.
Court finds no clear error in Magistrate Judge Pitman's
conclusion that there is no constitutional requirement that
prison disciplinary proceedings recognize self-defense.
Although no court within the Second Circuit appears to have
addressed this issue, courts that have considered the issue
have concluded that “prisoners do not have a
fundamental right to self-defense in disciplinary
proceedings.” Rowe v. DeBruyn, 17 F.3d 1047,
1053 (7th Cir. 1994); see also Williams v. Kort, 223
F. App'x 95, 100 (3d Cir. 2007); Romm v. Wilson,
1:12CV88 GBL/TCB, 2012 WL 6021325, at *5 (E.D. Va. Nov. 30,
2012), aff'd, 535 Fed. App'x 308 (4th Cir.
2013). Although inmates are afforded some due process rights,
“[p]rison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a
defendant in [a criminal prosecution] does not apply.”
Wolff v. McDonnell, 418 U.S. 539, 556 (1974). There
was no clear error in Magistrate Judge Pitman's
conclusion that the BOP's refusal to recognize
self-defense in response to a fighting charge did not violate
Petitioner's right to due process, particularly in
circumstances where, as here, there was no use or threat of
deadly force. See R&R at 5-9.
addition, to the extent that Petitioner intended also to
challenge the sufficiency of the evidence to support finding
a Code 201 violation, see Pet. at 6, Reply at 3,
there was more than sufficient evidence to support the
violation. The record shows that the finding was
based on Petitioner's various admissions that he
participated in the fight, including statements made in the
incident report. See Johnson Decl., Ex. B
(“Incident Report”) § 24 (statement by
Sharabi stating, “I was only fighting back in
self-defense”), § 25 (“Yes we had a fight
but there is no problem between us.”). Further,
Petitioner admitted that the incident report was true.
Johnson Decl., Ex. C at III.B (“Inmate Sharabi stated
that the incident report is true.”). Video surveillance
showing the incident also was available and considered by the
prison officer. Johnson Decl., Ex. C at V.
foregoing reasons, this Court ADOPTS the R&R in its