Opinion
CIVIL 3:21-CV-1775
07-28-2023
SCOTT FOWLER, Petitioner, v. WARDEN U.S.P. LEWISBURG, Respondent.
Mannion Judge
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
I. Statement of Facts and of the Case
A. Introduction
The American humorist and sage, Will Rogers, once said: “People who fly into a rage always make a bad landing.” We are reminded of Rogers' wisdom as we consider this case, a habeas corpus petition filed by Scott Fowler, which challenges the outcome of two disciplinary proceedings that arose out of incidents in which Fowler was found to have assaulted two staff members on July 31, 2018.
Fowler's habeas corpus petition challenges the outcome of these prison disciplinary proceedings, arguing that the Bureau of Prisons acted improperly in imposing discipline against him for these assaults because these disciplinary sanctions were at one time remanded by the Regional Director for further action. While Fowler aptly notes that the Regional Director had remanded his disciplinary citations, he misapprehends the scope, nature, and purpose of that remand. It is clear from a review of the entire agency file that Fowler's disciplinary citations were initially remanded simply in order to enable the institution to locate a complete copy of these disciplinary files.
Those files were located and revealed that there was sufficient evidence to penalize Fowler for his attacks on staff. Moreover, once the complete files were located Fowler was given another opportunity to challenge the merits of these disciplinary decisions through the Bureau of Prisons administrative grievance system, but he failed to fully exhaust his administrative remedies before bringing this habeas petition in federal court. (Doc. 1).
Thus, in the instant federal habeas corpus petition Fowler invites us to examine the results of these prison disciplinary hearings without first fully complying with prison administrative exhaustion rules. Because we find that Fowler was afforded the full panoply of procedural protections and there is sufficient evidence to support the prison's finding of misconduct, it is recommended that this petition be denied on its merits. Further, given that Fowler ultimately failed to fully exhaust his administrative remedies before coming to federal court, it is further recommended that the petition be dismissed as unexhausted.
B. Fowler's Staff Assaults and DHO Proceedings
This case arises out of disciplinary proceedings which commenced after Scott Fowler, who was housed at FCI Fairton, became embroiled in two staff assaults on the afternoon of July 31, 2018. The first assault took place on July 31, 2018, at 12:15 p.m. At that time a staff member at FCI Fairton was escorting Fowler when Fowler attempted to assault him and said: “Shit is about to get real.” Fowler then attempted to strike the staff member with a closed fist to his face. The escorting staff member then wrestled Fowler to the ground until additional staff arrived to assist in subduing this inmate. (Id.)
Fowler's second disciplinary citation arose out of a staff assault that took place as officers responded to the initial report of Fowler's attack on the first escorting officer. As one additional officer at FCI Fairton responded to the assistance call from the first incident, he observed staff on top of Fowler attempting to gain control of the inmate. (Id. Ex. 1, Attach. G at § 11). This second officer stated Fowler was kicking and screaming and refusing to submit to hand restraints. (Id.) As the second officer attempted to grab Fowler's right leg to keep him from kicking, Fowler kicked his leg and struck the officer in the chest. (Id.)
In the wake of these assaults Fowler was then charged in two separate disciplinary misconduct citations in connection with these two staff assaults. In each instance, Fowler received a copy of the incident report, was advised of his administrative rights in a disciplinary hearing and was offered the opportunity to make a statement. (Id.)
Fowler appeared before a Unit Disciplinary Committee (UDC) in connection with these citations on August 3, 2018. (Id.) At that time, Fowler gave his account of these two staff assaults, stating that the first incident was actually instigated by the escorting officer who Fowler alleged said that he: “doesn't write people up, he hurts people.” (Id. at § 17). As for the second staff assault Fowler denied kicking the officer. (Id.) At the conclusion of these UDC proceedings given the severity of the allegations, the UDC referred the incident to the Disciplinary Hearing Officer (DHO) for a hearing. (Id. at § 19). Fowler was also advised of his rights before the DHO. (Id. Ex. 1, Attach E, at 3). Fowler did not elect to receive the assistance from a staff representative and declined to request any witnesses. (Id. at 2).
Fowler appeared before the DHO on September 26, 2018. (Id. Ex. 1, Attach. F, at § I(B)). The DHO confirmed Fowler understood his rights and that he waived his right to a staff representative and witnesses. (Id. at § III.) Fowler denied the charges in the incident report and provided his own account of the incident, relaying that the first escorting staff member assaulted him and insisting that he never struck the second staff officer. (Id.) Fowler did not provide any documentary evidence. (Id. at 2, § V).
After fully considering the evidence, the DHO found Fowler had committed both of the staff assaults lodged against him in these citations. (Id. at 2, § V). The DHO based these findings on Fowler's statements to the investigating Lieutenant, the UDC, and the DHO, in addition to the reporting officers' account in the incident report and a memorandum offered by another witnessing staff member. (Id.) The DHO sanctioned Fowler to disallowance of twenty-seven (27) days loss of good time credit and thirty (30) days placement in disciplinary segregation for the first assault as well as disallowance of twenty-seven (27) days loss of good conduct time and seven (7) days placement in disciplinary segregation for the second assault. (Id. at 2, § VI; 3 § VII). At the conclusion of these proceedings, Fowler was provided a copy of the DHO's findings and report on November 16, 2018. (Id. at 3. B).
C. Fowler's Administrative Appeals
Fowler filed administrative appeals challenging these disciplinary decisions. (Id. Ex. 1, Attach. B, at 2; C, at 1, D at 1). Initially, Fowler was granted some limited relief by the Regional Director who notified Fowler that these disciplinary actions were being remanded. Fowler was advised to contact his Unit Team for additional instructions concerning these disciplinary actions. (Id.)
While Fowler now attempts to cast this remand as some sort of merits based final resolution of these disciplinary citations, the full administrative record reveals that this is not an accurate description of these events. Far from being a merits-based exoneration of Fowler, the remand was grounded on a procedural concern. Specifically, the Regional Director notified the Warden where Fowler was designated that the complete disciplinary paperwork for these two incident reports had not been provided to the Regional Office so a thorough review of the appeal could not be conducted. (Id. Ex. 2, Hepner Decl. ¶ 4, Attach. A). Therefore, the citations were remanded with instructions for the prison to conduct a search for the relevant disciplinary records. (Id.) If the records could not be located, institution staff were to notify the Regional Office and the incident reports would be expunged. (Id.) However, if they were located, Unit Team was to advise Fowler to submit a new appeal. (Id.) Subsequently, the disciplinary paperwork was located, and staff was told to notify Fowler to file a new appeal. (Id. Ex. 2, ¶¶ 6-7.)
It is evident that Fowler received notice that his complete disciplinary files had been located and he should renew his appeals, because on March 1, 2019, he filed a renewed administrative appeal of these disciplinary findings. However, Fowler's appeal was rejected because it conflated multiple incident reports into one appeal. (Id. Ex. 1, Attach. B at 3). Fowler then neglected to perfect his administrative appeals by filing any additional appeals or corrected appeals to the Bureau of Prisons Regional or Central Offices. (Id.)
Instead, dissatisfied with the outcome of these proceedings, Fowler filed the instant federal habeas corpus petition challenging the prison incident reports issued to him and sanctions subsequently imposed upon him by the DHO. In this petition Fowler launches a multi-facetted attack upon the procedural and substantive aspects of this disciplinary hearing. This matter has been fully briefed by the parties and is now ripe for resolution.
For the reasons set forth below, it is recommended that this petition be denied.
II. Discussion
A. This Petition is Unexhausted.
Fowler's complaints about his 2018 disciplinary proceedings suffer from a threshold procedural flaw since the petitioner has failed to properly exhaust his administrative remedies within the federal prison system. Although 28 U.S.C. § 2241 contains no express exhaustion requirement, “[o]rdinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241.” Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998); see also, e.g., Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981).
In order to facilitate this administrative exhaustion requirement, the Bureau of Prisons has established a clearly defined procedure for addressing inmate grievances. See 28 C.F.R. § 542, et seq. Pursuant to this grievance process, an inmate must first attempt resolution of any issue on an informal level by presenting the matter to staff and allowing staff to attempt an informal resolution before an administrative remedy request is filed. See 28 C.F.R. § 542.13(a). If an inmate is unable to resolve his concerns informally with the staff, the prisoner may file a formal written complaint at the institution level with the Warden within 20 calendar days of the event that forms the basis of the grievance. § 542.14(a). If the Regional Director denies the appeal and the inmate remains dissatisfied, the inmate can lodge a final appeal to the BOP's Central Office in Washington, D.C. within 20 days of the denial. § 542.15(a). If denied by the Central Office, the inmate may then file a civil action. §§ 542.10, 542.15.
These exhaustion rules serve an important and salutary purpose. The United States Court of Appeals for the Third Circuit requires administrative exhaustion of a claim raised under § 2241 for three reasons: “(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy.” Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761- 62 (3d Cir. 1996); see also Gambino, 134 F.3d at 171; Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988).
In this case, it is undisputed that Fowler has not fully exhausted his administrative remedies, since following the initial remand of his case, he neglected to fully and properly appeal the DHO's decision through the appropriate channels and ultimately to the Central Office. With respect to unexhausted habeas claims like those presented here, it is well settled that: “Courts in the Middle District of Pennsylvania have consistently held that ‘exhaustion of administrative remedies is not rendered futile simply because a prisoner anticipates he will be unsuccessful in his administrative appeals. . .' ” Ross v. Martinez, No. 09-1770, 2009 WL 4573686, 3 (M.D. Pa. Dec. 1, 2009). Quite the contrary, rigorously applying these exhaustion requirements, courts have consistently rejected habeas petitions challenging prison disciplinary decisions where the inmate-petitioners have failed to fully exhaust their administrative remedies. See, e.g., Johnson v. Williamson, 350 Fed.Appx. 786 (3d Cir. 2009); Pinet v. Holt, 316 Fed.Appx. 169 (3d Cir. 2009); Moscato, 98 F.3d. 757.
As this Court has previously explained when dismissing a federal prisoner's habeas petition for failure to exhaust administrative remedies:
In order for a federal prisoner to exhaust his administrative remedies, he must comply with 28 C.F.R. § 542. See 28 C.F.R. § 542.10, et seq. Lindsay v. Williamson, No. 1:CV-07-0808, 2007 WL 2155544, at *2 (M.D. Pa. July 26, 2007). An inmate first must informally present his complaint to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for administrative relief. 28 C.F.R. § 542.13(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. 28 C.F.R. § 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. 28 C.F.R. §§ 542.15(a), 542.18. No administrative appeal is considered finally exhausted until a decision is reached on the merits by the BOP's Central Office. See Sharpe v. Costello, No. 081811, 2008 WL 2736782, at *3 (3d Cir. July 15, 2008).Miceli v. Martinez, No. 08-1380, 2008 WL 4279887 at 2 (M.D. Pa. Sept. 15, 2008).
This exhaustion rule in federal habeas corpus proceedings is also subject to a procedural default requirement:
[A] procedural default in the administrative process bars judicial review because ‘the reasons for requiring that prisoners challenging disciplinary actions exhaust their administrative remedies are
analogous to the reasons for requiring that they exhaust their judicial remedies before challenging their convictions; thus, the effect of a failure to exhaust in either context should be similar.' Sanchez, 792 F.2d at 698. We require exhaustion for three reasons: (1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy. Bradshaw, 682 F.2d at 1052; see also Schlesinger v. Councilman, 420 U.S. 738, 756-57, 95 S.Ct. 1300, 1312, 43 L.Ed.2d 591 (1975) (exhaustion avoids duplicative proceedings and insures that judicial review will be informed and narrowed); McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969) (circumvention of administrative process diminishes effectiveness of an agency by encouraging prisoners to ignore its procedures). Requiring petitioners to satisfy the procedural requirements of the administrative remedy process promotes each of these goals.Moscato, 98 F.3d 757 at 761-62 (3d Cir. 1996). For these reasons, “a federal prisoner who ..., fails to exhaust his administrative remedies because of a procedural default, and subsequently finds closed all additional avenues of administrative remedy, cannot secure judicial review of his habeas claim absent a showing of cause and prejudice.” Id.
Nor can Fowler avoid this exhaustion requirement by claiming that he regarded exhaustion as futile, or that his efforts to exhaust were impeded by prison staff. While this exhaustion requirement is a prudential limit on the exercise of judicial power that a court may forego in limited circumstances where no purpose would be served by exhaustion, this case is not one of those narrow instances where the court should forego exhaustion. The exceptions to this rule favoring full exhaustion are typically restricted to situations where an inmate is attacking the constitutionality of a prison policy, see Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005), or the facts reveal that administrative procedures could not have provided the prisoner any meaningful relief. Lyons v. U.S. Marshals, 840 F.2d 202, 207 (3d Cir. 1988).
Neither of these narrow exceptions to the general rule favoring exhaustion of administrative remedies has any application here. Further, the other goals fostered by full exhaustion would have been promoted in this case. A timely and thorough administrative review of these decisions would have allowed the Bureau of Prisons to develop a factual record and apply its expertise to these facts in a way that would have facilitated judicial review. Proper administrative exhaustion would have also permitted the Bureau of Prisons to grant the relief requested, thereby conserving judicial resources, and would have fostered administrative autonomy by providing the Bureau of Prisons the opportunity to correct any potential errors. See Moscato, 98 F.3d at 761-62. Therefore, the prudential factors favoring exhaustion were fully satisfied here and exhaustion was required in this case.
Fowler cannot avoid this exhaustion requirement by making a showing of cause and prejudice which would justify excusing him from exhausting these administrative remedies. It appears that Fowler was advised of his obligation to reinitiate his appeal once the disciplinary files were located, yet he only engaged in halting and incomplete efforts to comply with prison grievance policies. Thus, the basic legal requirement of administrative exhaustion continues to apply here and is fatal to Fowler's habeas corpus petition. With respect to his complaints in this petition regarding his 2018 disciplinary citations, Fowler is an inmate who has failed to fully and properly exhaust his administrative remedies, and now fails to provide sufficient cause and prejudice which excuses this earlier procedural default. Therefore, these unexhausted claims should be dismissed.
B. This Petition Fails on its Merits.
In any event this habeas corpus petition fails on fundamental, substantive grounds. In this habeas petition, the petitioner launches a two-fold constitutional assault upon this prison disciplinary decision, challenging the disciplinary process generally on procedural due process grounds, and asserting that the decision is substantively flawed since there is insufficient evidence to support a finding of misconduct on his part. Yet, the petitioner faces an exacting burden of proof in advancing these two constitutional claims.
(1) Procedural Standards for DHO Hearings
First, with respect to his procedural due process concerns, it is well established that “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The Supreme Court has, however, recognized a set of minimum procedural protections that must apply to prison disciplinary proceedings, including the right to: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety or correctional goals, to call witnesses and present documentary evidence as part of a defense; and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. Id. at 563-67.
Due process also requires that a prison disciplinary tribunal be sufficiently impartial. Meyers v Alldredge, 492 F.2d 296, 305-07 (3d Cir. 1974). The requirement of an impartial tribunal “prohibits only those officials who have a direct personal or otherwise substantial involvement, such as major participation in a judgmental or decision-making role, in the circumstances underlying the charge from sitting on the disciplinary committee.” Id. at 306. In the past, inmates have often invited courts to set aside disciplinary hearing results based upon general assertions of staff bias. Yet, such requests, while frequently made, have rarely been embraced by the courts. Instead, the courts have held that a “generalized critique” of staff impartiality is insufficient to demonstrate the degree of bias necessary to prove a due process violation. Lasko v. Holt, 334 Fed.Appx. 474 (3d Cir. 2009). Furthermore, in the absence of a showing that the hearing officer was “personally or substantially involved in the circumstances underlying [the investigation of the] charge,” Greer v. Hogston, 288 F. App'x. 797, 799 (3d Cir. 2008), courts generally decline to strike down disciplinary decisions on claims of staff bias. See Redding v. Holt, 252 Fed.Appx. 488 (3d Cir. 2007).
In the federal prison system, the Bureau of Prisons has, by regulation, adopted specific guidelines for inmate discipline procedures which are set forth at 28 C.F.R.' 541.1 et seq. These guidelines are specifically tailored and designed to meet the due process requirements outlined by the Supreme Court in Wolff. See Von Kahl v. Brennan, 855 F.Supp. 1413 (M.D. Pa. 1994). Under these regulations, when prison staff have reason to believe that a prohibited act has been committed by an inmate, an incident report must be prepared and referred for investigation.' 541.5. After investigation, the incident report is referred to a UDC for an initial hearing.' 541.7. The inmate, in turn, is entitled to notice of any proposed violation. The UDC may either reach a finding regarding whether a prohibited act was committed or refer the case to the DHO for further hearing.' 541.7(f)-(g). The DHO then has the authority to dismiss any charge, to find a prohibited act was committed, and to impose any available sanction for the act.' 541.8. The DHO hearing is conducted pursuant to the procedures set forth at 28 C.F.R. '541.8.
Throughout this hearing process, the inmate is provided with a series of procedural rights. For example, the inmate is entitled to notice of the alleged infraction. Specifically, the Warden must give the inmate advance written notice of the charges no less than 24 hours before the DHO hearing. 28 C.F.R.' 541.8(c). The inmate is also entitled to assistance at DHO hearings. In particular, the Warden must provide the inmate with a full-time staff member to represent him at the DHO hearing.' 541.8(d).
The inmate also has a series of procedural rights at the hearing itself. Thus, at the DHO hearing, the inmate is entitled to make a statement and present documentary evidence. The inmate also has the right to submit names of requested witnesses and have them called to testify and to present documents. While the DHO need not call repetitive witnesses or adverse witnesses, 28 C.F.R.' 541.8(f), the DHO shall call those witnesses who have information directly relevant to the charges and who are reasonably available. The inmate has the right to be present throughout the DHO hearing except during deliberation or when institutional security would be jeopardized.' 541.8(e).
In addition, the regulations prescribe procedural standards for DHO decisionmaking. Thus, the regulations require that the DHO must consider all evidence presented at the hearing. The decision of the DHO must be based on the facts presented, and if there is conflicting evidence, it must be based on the greater weight of the evidence. Finally, the DHO must prepare a record of the proceedings. This record must be sufficient to document the advisement of inmate rights, the DHO's findings, the DHO's decision and the specific evidence relied upon by the DHO. The record must include a brief statement of the reasons for the sanction imposed. A copy of this record must be delivered to the inmate. 28 C.F.R.' 541.8(h).
Given the panoply of procedural protections afforded to inmates by these regulations, courts have consistently held that when prison officials comply with these regulations, they fully satisfy the requirements of procedural due process in this prison disciplinary setting. See, e.g., Fiore v. Lindsay, 336 Fed.Appx. 168 (3d Cir. 2009) (upholding disciplinary decision); Macia v. Williamson, 219 Fed.Appx. 229 (3d Cir. 2007) (same); Reynolds v. Williamson, 197 Fed.Appx. 196 (3d Cir. 2006) (same); Levi v. Holt, 193 Fed.Appx. 172 (3d Cir. 2006) (same); Sinde v. Gerlinski, 252 F.Supp.2d 144 (M.D. Pa. 2003) (same).
(2) Substantive Standards Governing DHO Decisions
In his habeas corpus petition, the petitioner also attacks the substance of the DHO decision, arguing that there was insufficient evidence to support a finding of misconduct on his part. Like the procedural due process challenge, this substantive attack on the sufficiency of the evidence in this disciplinary hearing must meet a demanding legal standard to succeed. A prison disciplinary determination comports with due process if it is based on “some evidence.” See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985) (“[T]he relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board”). This standard is minimal and does not require examination of the entire record, an independent assessment of the credibility of witnesses, or even a weighing of the evidence. See id. at 455; Thompson v. Owens, 889 F.2d 500, 50102 (3d Cir. 1989). Therefore, it is well settled that the decision of the DHO is entitled to considerable deference by a reviewing court and must be upheld whenever there is “some evidence” to support the decision. Hill, 472 U.S. at 457; Elkin v. Fauver, 969 F.2d 48 (3d Cir. 1992); Thompson v. Owens, 889 F.2d 500 (3d Cir. 1989); Franco v. Kelly, 854 F.2d 584, 588 (2d Cir. 1988); Freeman v. Rideout, 808 F.2d 949, 955 (2d Cir. 1986).
Thus, in this setting the “function [of the court] is to determine whether there is some evidence which supports the decision of the [DHO].” Freeman, 808 F.2d at 954. As the Supreme Court has observed, the “some evidence” standard is a highly deferential standard of review, and:
Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.Hill, 472 U.S. at 455-456.
Applying this deferential standard, once the reviewing court determines there is “some evidence” to support the finding of the DHO, the court must reject the evidentiary challenge by the petitioner and uphold the finding of the DHO. Griffin v. Spratt, 969 F.2d 16, 22 (3d Cir. 1992); Thompson, 889 F.2d 501; Freeman, 826 F.2d at 954. In practice, courts have rarely condemned correctional disciplinary decisions as being wholly lacking in evidentiary support and have frequently concluded that disciplinary findings are supported by the requisite degree of proof. See, e.g., Fiore, 336 Fed.Appx. 168 (upholding disciplinary decision); Macia, 219 Fed.Appx. 229 (same); Reynolds, 197 Fed.Appx. 196 (same); Levi, 193 Fed.Appx. 172 (same); Sinde, 252 F.Supp.2d 144 (same).
C. Fowler was Afforded Due Process at His DHO Hearing and there is Adequate Evidence to Support the Substantive Finding of Misconduct.
Judged against these standards, Fowler's procedural and substantive challenges to this prison disciplinary proceeding simply fail. In this case, the DHO followed all of the procedures outlined in the regulations. Fowler was given a copy of these incident reports which provided him with notice of the charges against him. The UDC held a hearing and referred these matters to the DHO for sanctions. The DHO also provided Fowler with ample written notice of the DHO hearing and the charges against him. At this hearing Fowler eschewed his right to a staff representative, and declined to call witnesses, but was given a full and fair opportunity to provide his account of these events. Thus, in this case it is apparent that the petitioner was afforded his procedural due process rights and either exercised those rights or elected to forego certain rights afforded to him.
Fowler also alleges in general terms that he was denied an impartial decisionmaker but cites to nothing to support this assertion beyond his dissatisfaction with the outcome of these proceedings. This will not suffice to prove a procedural due process violation. The requirement of an impartial tribunal “prohibits only those officials who have a direct personal or otherwise substantial involvement, such as major participation in a judgmental or decision-making role, in the circumstances underlying the charge from sitting on the disciplinary committee.” Meyers, 492 F.2d at 306. Fairly construed, Fowler's complaints and allegations are little more than a “generalized critique” of staff impartiality, which is insufficient as a matter of law to demonstrate the degree of bias necessary to prove a due process violation. Lasko v. Holt, 334 Fed.Appx. 474 (3d Cir. 2009). See e.g., Greer v. Hogston, 288 F. App'x. 797, 799 (3d Cir. 2008), Redding v. Holt, 252 Fed.Appx. 488 (3d Cir. 2007). Accordingly, given that Fowler was afforded the procedural protections set forth in Wolff, the DHO fully satisfied the requirements of due process in this case. See, e.g., Fiore v. Lindsay, 336 Fed.Appx. 168 (3d Cir. 2009) (upholding disciplinary decision); Macia v. Williamson, 219 Fed.Appx. 229 (3d Cir. 2007) (same); Reynolds v. Williamson, 197 Fed.Appx. 196 (3d Cir. 2006) (same); Levi v. Holt, 193 Fed.Appx. 172 (3d Cir. 2006) (same); Sinde v. Gerlinski, 252 F.Supp.2d 144 (M.D. Pa. 2003) (same). Therefore, these procedural due process claims are unavailing.
With respect to any substantive due process challenges to the DHO proceedings, it is apparent that the DHO's decisions were supported by adequate evidence. As we have noted, a prison disciplinary determination comports with due process if it is based on “some evidence.” See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985) (“[T]he relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board”). In this case, the DHO decision was plainly supported by some evidence. The DHO relied upon the eyewitness reports of staff, who described these assaults and made a basic credibility determination that these staff reports were more believable than Fowler's strained and implausible account of events. The DHO was entitled, and indeed was required, to make these credibility assessments. Moreover, we are enjoined to refrain from indulging in an independent assessment of the credibility of witnesses, or re-weighing of the evidence. Given the limited scope of our review, we conclude that there was ample evidence to support this disciplinary finding. Since there is an adequate factual basis for this disciplinary finding, any substantive challenge to this disciplinary action should also be rejected. See e.g., Fiore, 336 Fed.Appx. 168 (upholding disciplinary decision); Macia, 219 Fed.Appx. 229 (same); Reynolds, 197 Fed.Appx. 196 (same); Levi, 193 Fed.Appx. 172 (same); Sinde, 252 F.Supp.2d 144 (same).
III. Recommendation
Accordingly, for the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus, IT IS RECOMMENDED that the Petition be DENIED, and that a certificate of appealability should not issue.
The Petitioner is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.