William Greer v. Karen Hogston ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-14-2008
William Greer v. Karen Hogston
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1142
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1142
WILLIAM D. GREER,
Appellant
v.
WARDEN HOGSTON
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 07-cv-01076)
District Judge: Honorable Malcolm Muir
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 11, 2008
Before: AMBRO, FUENTES and FISHER, Circuit Judges
(Filed: July 14, 2008 )
OPINION
PER CURIAM
This is an appeal from the District Court’s denial of William Greer’s petition for
writ of habeas corpus. For the following reasons, we affirm.
In June 2007, Appellant, a federal prisoner formerly confined at the Federal Prison
Camp (FPC-Devens) and Federal Medical Center in Devens (FMC-Devens) in
Massachusetts and now incarcerated in Pennsylvania, initiated a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Appellant’s petition contended that his Fifth
and Eighth Amendment rights were violated during the course of a prison disciplinary
hearing, where he was found to have committed Conduct Which Disrupts or Interferes
with the Security or Orderly Running of the Institution, a violation of Disciplinary Code
Section 199 (“Section 199”). Disciplinary proceedings were initiated after prison
officials at FMC-Devens discovered a cell phone which they traced back to Greer. On
November 16, 2006 Greer was served with an incident report for Use of a Telephone for
Abuses other than Criminal Activity, a violation of Disciplinary Code Section 305 and
Possession of Anything not Authorized, a violation of Disciplinary Code Section 197.
Due to the seriousness of the charges, the Unit Disciplinary Committee (“UDC”) referred
the charges to a Disciplinary Hearing Officer (“DHO”). On November 29, the DHO
advised Greer that instead of being charged with violations of Sections 197 and 305, he
was being charged with a violation of Section 199. On December 6, after rescheduling
the hearing in order to give Greer a chance to prepare his defense, the DHO found that
Greer committed the charged offense and sanctioned him to 45 days of disciplinary
segregation, a two year loss of telephone privileges, disallowance of forty days of good
conduct time, and recommended a disciplinary transfer from FPC-Devens.
Greer, in his petition, claimed that he received inadequate notice of the charges,
that there was insufficient evidence of misconduct relied upon to find him guilty, and that
the DHO was biased in making his ruling. On November 30, 2007 the District Court
denied the petition, and Greer filed a timely notice of appeal.1
We have jurisdiction over this appeal under 28 U.S.C. §§ 1291 and 2253(a). We
review a District Court’s denial of habeas corpus relief de novo. Vega v. United States,
493 F.3d 310, 314 (3d Cir. 2007).
In Wolff v. McDonnell, 418 U.S. 539 (1974), the United States Supreme Court
acknowledged that the loss of good time credits may create a liberty interest protected by
the Due Process Clause. While Greer is a federal prisoner, and therefore his case is
governed by the Due Process Clause of the Fifth Amendment, we assume the federal
government may also confer such liberty interests on prisoners. See Vega, 493 F.3d at
317 n.4. Greer’s due process rights, however, are limited to: 1) an impartial decision-
making body; 2) twenty-four hour advance notice of the charges; 3) an opportunity to call
witnesses and present documentary evidence; 4) assistance from a representative; and 5) a
written decision explaining the evidence relied upon. Wolff, 418 U.S. at 563-67.
For substantially the reasons given by the District Court, we conclude that Greer
received all of the required procedural rights set forth in Wolff. Despite Greer’s
1
Greer does not challenge the District Court’s ruling on the sufficiency of the
evidence.
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argument to the contrary, nothing in the Bureau of Prisons regulations prevents the DHO
from changing the offense charge in the Incident Report prior to a disciplinary hearing.
Greer had notice that possession of a cell phone would be treated as Conduct Which
Disrupts or Interferes with the Security or Orderly Running of the Institution since the
warden issued a memorandum to the prison population on June 15, 2006 explicitly stating
that prisoners would be charged under Section 199 for possession of a cell phone.
Moreover, after the change in the charging document, Greer had one week to marshal
evidence in support of his defense to the charge of violating Section 199. The District
Court correctly determined that the DHO did not violate Greer’s due process rights by
changing the Incident Report to reflect a more appropriate offense in line with prison
policy.
Greer’s second argument, that because the DHO changed the charging document
he became the “charging officer” and therefore violated his duty to be an impartial
decision maker, is likewise meritless. Greer presented no evidence that the DHO was
involved in reporting or investigating the cell phone incident, or was in any way
personally or substantially involved in the circumstances underlying charge. See 28
C.F.R. § 541.16(b); see also Meyers v. Alldredge, 492 F.2d 296, 306 (3d Cir. 1974) (“the
requirement of an impartial tribunal prohibits only those officials who have a direct
personal or otherwise substantial involvement . . . in the circumstances underlying the
charge from sitting on the disciplinary body”). Therefore, we cannot say that the District
Court erred in dismissing Greer’s procedural due process arguments.
We will affirm the judgment of the District Court.
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