Levi v. Holt , 193 F. App'x 172 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-7-2006
Levi v. Holt
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1936
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Levi v. Holt" (2006). 2006 Decisions. Paper 470.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/470
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
BPS-271
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1936
BERNARD S. LEVI,
Appellant
v.
RONALD HOLT, Warden
________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civil No. 05-cv-01533)
District Judge: Honorable Sylvia H. Rambo
________________________
Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
July 13, 2006
Before: RENDELL, AMBRO and ROTH, Circuit Judges.
(Filed September 7, 2006)
______________
OPINION OF THE COURT
_______________
PER CURIAM
Appellant Bernard Levi appeals from the denial of his habeas corpus petition
under 28 U.S.C. § 2241. Because no substantial question is presented, we will affirm the
order of the District Court. See L.A.R. 27.4.1
I.
On March 7, 2005, Levi was charged with the high severity disciplinary infraction
of “engaging in sexual acts.” 28 C.F.R. § 541.13, Table 3, Code 205. It was alleged that
Levi positioned himself in the FCI-Schuylkill education library so that he could directly
view one of the female teachers, Mrs. Feger. Feger reported that Levi stared at her while
he stroked his erect penis, which was protruding from his sweat pants. The act reportedly
was almost identical to an incident in December 2004, for which Levi was disciplined,
except that in that case he did not expose his genitalia. The matter was assigned to a
Disciplinary Hearing Officer (DHO) for review. Levi argued that the charges were false
and retaliatory. He also asked to present three witnesses, but only one could be located.
Waiving his right to present the two missing witnesses, Levi presented one witness who
stated that he did not see what was going on. The DHO held that the greater weight of
the evidence supported a finding that Levi had violated code 205. The DHO ordered the
forfeiture of twenty-seven days of good-time credit, forty-five days in the special housing
unit, and a year loss of several privileges.
After exhausting his administrative remedies, Levi filed a habeas petition under 28
U.S.C. § 2241, claiming that his due process rights were violated because he was not
1
This appeal was originally listed for possible dismissal under 28 U.S.C. § 1915(e).
Given the extent of the proceedings in the District Court, we find that summary
affirmance is a more appropriate method of disposing of this appeal.
2
permitted to call all of his witnesses, he was charged with the wrong offense, the
sanctions were in retaliation for his filing prior lawsuits, and the sanctions were excessive
in violation of the Eighth Amendment. He also filed a motion for a preliminary
injunction and a temporary restraining order seeking to bar Lt. Broe and other prison staff
from taking retaliatory acts against him. A Magistrate Judge recommended denying the
petition. Levi filed objections. The District Court rejected Levi’s motions and denied the
petition as well as a second motion for a preliminary injunction. Levi filed an appeal
challenging all of the District Court’s orders.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and because the issues in this
case are purely legal, we exercise plenary review over the District Court’s denial of a §
2241 petition. See Roussos v. Menifee, 122 F.3d 159, 161 n.3 (3d Cir. 1997); Barden v.
Keohane, 921 F.2d 476, 479 (3d Cir. 1990). The memorandum accompanying Levi’s
notice of appeal does not appear to directly challenge any of the District Court’s holdings.
Rather, Levi seeks relief for what he believes to be unbearable conditions in the Special
Housing Unit and retaliatory actions by prison staff. These issues are not cognizable for
two reasons. First, they were not raised below, see In re Mintze, 434 F.3d 222, 232 (3d
Cir. 2006), and second, the claims do not challenge the fact or duration of his
3
confinement. See Leamer v. Fauver, 288 F.3d 532, 540-42 (3d Cir. 2002).2 Assuming he
also desires to challenge the District Court’s denial of his § 2241 petition, we address that
below.
Federal inmates, such as Levi, possess a liberty interest in good-time credit. See
Wolff v. McDonnell, 418 U.S. 539, 555-57 (1974); Young v. Kann, 926 F.2d 1396, 1399
(3d Cir. 1991). While the Due Process Clause protects against the revocation of good-
time, it does not provide the same level of protection against the imposition of other
forms of discipline. See Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir. 2002) (citing
Sandin v. Conner, 515 U.S. 472, 486 (1995)). Levi’s transfer to the Special Housing Unit
and the loss of various privileges do not invoke the same due process protections. See
Torres, 292 F.3d at 150-51. Additionally, these punishments cannot be challenged under
§ 2241 because in no manner do they affect the fact or length of his sentence or
confinement. See Leamer, 288 F.3d at 540-42. Levi’s challenge under § 2241, therefore,
must be grounded upon the revocation of his good-time credit only.
In order to comport with the minimum requirements of procedural due process, the
disciplinary findings must be supported by “some evidence” in the record.
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). After
2
For similar reasons, we do not address the denial of Levi’s various motions for
injunctive relief. None of his motions affects the fact or duration of his conviction or
sentence. The claims are more appropriately brought pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
4
independently reviewing the record, we agree with the District Court that Levi fails to
present any evidence countering Mrs. Feger’s accusation or establishing that Mrs. Feger
was falsifying her claims. We conclude that the DHO’s factual findings are supported by
some evidence in the record, and address his remaining arguments in turn.
A. Meaning of the term “Sexual Acts” and Excessiveness
This appeal comes to us alongside of Levi’s nearly identical § 2241 petition
challenging a disciplinary sanction for a similar offense committed on December 21,
2001. See Levi v. Holt, C.A. No. 05-5076 (3d Cir. 2006). We affirmed the District
Court’s denial of the petition concluding that the DHO’s findings were supported by
some evidence in the record, and that the DHO’s determination that Levi’s conduct
constituted “sexual acts” was not clearly erroneous. We also found that the loss of less
than a month of good-time was not excessive under the Eighth Amendment. We adhere
to that reasoning here.
B. Denial of Witnesses
Levi also claims that he was denied his due process right to call witnesses. A
prisoner has the limited right to call witnesses who have relevant information and would
not present a threat to penological interests. See Wolff, 418 U.S. at 566-67; 28 C.F.R. §
5471.17(c). Levi called one witness and he waived his right to call the remaining two.
He argues that he originally requested five witnesses, but was allowed only one.
However, he does not present the names of the alleged fourth and fifth witnesses. Nor
5
does he allege that the two waived witnesses were actually available. Finally, he does not
present any legal basis, nor do we find any, to conclude that his right to due process was
violated.
For the foregoing reasons, Levi fails to establish that the District Court erred in
denying his petition. Accordingly, we will affirm.
6