Case 2:13-cv-00021-JPB-DJJ Document 24 Filed 07/30/13 Page 1 of 10 PageID #: 138
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WARDEN RUSSELL PURDUE,
Civil Action No. 2:13-CV-21
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge David J. Joel [Doc. 19].
Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Joel for
submission of a proposed report and recommendation (“R&R”). Magistrate Judge Joel filed
his R&R on June 17, 2013 [Doc. 19]. In that filing, the magistrate judge recommended that
this Court deny and dismiss with prejudice the petitioner’s Motion Under 28 U.S.C. § 2241
[Docs. 1 and 5].
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
Case 2:13-cv-00021-JPB-DJJ Document 24 Filed 07/30/13 Page 2 of 10 PageID #: 139
150 (1985). In addition, failure to timely file objections constitutes a waiver of de novo
review and the petitioner’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce,
727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Joel’s R&R were due
within fourteen (14) days of receipt of the R&R, pursuant to 28 U.S.C. § 636(b)(1) and Rule
72(b) of the Federal Rules of Civil Procedure
. Service was accepted on June 18, 2013
[Doc. 20]. The petitioner timely filed his objections on July 5, 2013 [Doc. 21]. Accordingly,
this Court will review the portions of the R&R to which objection was made under a de novo
review. The remaining portions of the R&R will be reviewed for clear error.
II. Factual and Procedural History
A. Conviction and Sentence
The petitioner has been a federal prisoner since 2003. See 1:02-cr-00307-NGG-4,
Doc. 612. On August 4, 2011, the petitioner was transferred from FCI Butner - Low to the
Brooklyn House Residential Reenty Center (“RRC”). [Doc. 15-2, p. 9]. On November 15,
2011, the petitioner was transferred to home confinement under supervision of the Brooklyn
House RRC. Id. At the time, the petitioner was serving a one hundred eight (108) month
sentence for Racketeering in violation of 18 U.S.C. §§ 1962(d), 1963, and 3551, et seq.
See 1:02-cr-00307-NGG-4, Doc. No. 612. His sentence was projected to end January 30,
2012, via good conduct time release. [Doc. 5, p. 12].
B. Current Incident
Case 2:13-cv-00021-JPB-DJJ Document 24 Filed 07/30/13 Page 3 of 10 PageID #: 140
On November 21, 2011, the petitioner was arrested by the Drug Enforcement
Agency and New York State Troopers while on home confinement. [Doc. 15-2, p. 2].
Subsequently, on November 23, 2011, the petitioner received written notice that he was
being charged with “Escape (Technical)” in violation of Prohibited Act 102 of the Bureau
of Prisons’ (“BOP”) Discipline Code. Id. at 17. The petitioner’s arrest stemmed from new
criminal allegations concerning Extortion and Interstate Commerce violations. See 1:12-cr-
00050-CBA-1, Doc. 1.
On November 25, 2011, the Center Discipline Committee (“CDC”) held a hearing on
the escape charge. [Doc.15-2 at 5]. During this hearing, the petitioner waived his right to
a representative and did not request witnesses. Id. at 17. The CDC found that the
petitioner was guilty of the act as charged. Id. at 6. The CDC recommended that all
available good conduct time for the petitioner be disallowed and that the petitioner complete
his sentence in a more secure facility as sanctions. Id. As such, the Disciplinary Hearing
Officer (“DHO”) removed the petitioner from the Brooklyn House RRC and noted the
petitioner’s loss of thirty-four (34) days of good conduct time and one hundred eighty (180)
days of non-vested good conduct time. Id. Subsequently, the petitioner filed appeals at
the regional and national levels of the BOP’s administrative remedy process, which denied
those appeals. [Doc. 5. at 9-10]. The Government concedes that by doing so the petitioner
has exhausted his administrative remedies. [Doc. 15-1, p. 1].
C. Due Process Requirements
Case 2:13-cv-00021-JPB-DJJ Document 24 Filed 07/30/13 Page 4 of 10 PageID #: 141
The Supreme Court has identified the following due process requirements for inmate
disciplinary actions: (1) written notice of the charges must be given to the inmate at least
twenty-four hours before his appearance in front of the prison disciplinary board; (2) prison
disciplinary officers must make a written statement describing the evidence relied upon and
supply reasons for any disciplinary actions; (3) the inmate must be allowed to call witnesses
and present evidence at the disciplinary hearing unless allowing this would be unduly
hazardous to institutional safety or correctional goals; (4) if illiterate or the hearing involves
a complex matter, the inmate must be granted the opportunity to have a non-attorney
representative assist him throughout the disciplinary process; and (5) the decision-maker
must be impartial. Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974).
First, in spite of the petitioner’s claims, he was clearly provided with notice of the
escape charge at least twenty-four hours before his November 25 disciplinary hearing by
acknowledging that he received written notice on November 23, 2011. [Doc. 15-2 at 5].
Furthermore, the petitioner waived his right to twenty-four hour notice. Id. at 11. Second,
the CDC Report has a detailed description of the evidence taken directly from the Incident
Report. Id. 15-2 at 6. The CDC Report also recommends disallowing all good conduct time
and states the reason for the sanction as, “To encourage all residents residing at the
Brooklyn House to obey all rules and regulations of the program.” Id. Third, the petitioner
was given the opportunity to call witnesses and present evidence, but the petitioner chose
not to call any witnesses and simply provided a statement declaring his innocence of the
alleged crime that led to his arrest. Id. at 5. This Court notes that the petitioner signed his
initials next to each of these requirements on the CDC Report. Id. Fourth, while the
Case 2:13-cv-00021-JPB-DJJ Document 24 Filed 07/30/13 Page 5 of 10 PageID #: 142
petitioner is not illiterate and the matter does not appear to be complex, the petitioner was
provided the opportunity to have a representative but waived that right. Id. The petitioner
similarly initialed this waiver on the CDC Hearing Notice. Id. at 17. Finally, the petitioner
does not allege – and no evidence shows – that the decision-maker was not impartial.
Thus, it is apparent that the BOP provided the petitioner with adequate procedural due
process pursuant to Wolff.
D. Sufficiency of Evidence
“[T]he requirements of due process are satisfied if some evidence supports the
decision of the prison disciplinary board to revoke good time credits.” Superintendent,
Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985). The standard is satisfied if
there is some evidence supporting the conclusion reached by the disciplinary board. Id.
In Hill, a prison disciplinary board determined that three inmates violated prison rules by
assaulting another inmate. The prison disciplinary board’s conclusion was supported by
little evidence: a “guard heard some commotion and, upon investigating, discovered an
inmate who evidently had just been assaulted. The guard saw three other inmates fleeing
together down an enclosed walkway. No other inmates were in the area.” Hill, 472 U.S.
at 456. Despite little evidence supporting the conclusion, the Supreme Court held that the
evidence was sufficient because “[t]he Federal Constitution does not require evidence that
logically precludes any conclusion but the one reached by the disciplinary board. Instead,
due process in this context requires only that there be some evidence to support the
findings made in the disciplinary hearing.” Hill, 472 U.S. at 457.
In the instant case, the CDC, and consequently the DHO, relied largely on the
Case 2:13-cv-00021-JPB-DJJ Document 24 Filed 07/30/13 Page 6 of 10 PageID #: 143
Incident Report filed by Robyn Causey, the Facility Director of the Brooklyn House RRC.
[Doc. 15-2 at 6]. Her report included evidence of the petitioner’s arrest from the DEA
Headquarters Duty Officer and the petitioner’s wife. Id. at 2. Thus, the DHO relied upon
“some evidence” in concluding that the petitioner committed the charged offense and in
revoking the petitioner’s good conduct time.
This Court also notes that the petitioner does not contest the actual sufficiency of
the evidence the DHO ultimately used but rather the accuracy of it. See [Doc. 5 at 6]. This
Court agrees with the magistrate judge that the petitioner’s claims in regard to the accuracy
of the escape charge are entirely without merit. The BOP’s Program Statement on
Community Corrections and Correctional Contract Services clearly defines “Escape” as
including “Escape Due to Community Arrest” either for old or new criminal behavior. See
[Doc. 15-2 at 23]. Therefore, the petitioner’s § 2241 due process claims lack merit.
E. Privacy Act Issues
“[A] § 2241 habeas petition is not the appropriate vehicle for an alleged Privacy Act
violation when . . . the claim does not implicate the duration of a sentence. Blanton v.
Warden, 2011 WL 1226010 (W.D. Va. Mar. 30, 2011) (citing Jackson v. Federal Bureau
of Prisons, 538 F.Supp. 2d 194, 198 (D.C. Mar. 14, 2008), and Smith v. U.S. Parole
Com’n, 2005 WL 1594452, *2 (W.D. Va. June 29, 2005)). In addition to normal § 2241
allegations, the petitioner also suggests that the BOP has violated the Privacy Act by
including inaccurate information in his file regarding this incident. In the instant case,
however, the petitioner’s sentence would not be impacted by the requested change to his
prison file. Thus, the petitioner’s Privacy Act claims are without merit. Furthermore, the
Case 2:13-cv-00021-JPB-DJJ Document 24 Filed 07/30/13 Page 7 of 10 PageID #: 144
information contained in the petitioner’s file is an accurate reflection of the incident.
Therefore, the petitioner’s Privacy Act claims must be dismissed.
The petitioner raises three (3) objections [Doc. 21] to the magistrate judge’s R&R.
This Court will address each in turn. The first objection states that “the Bureau of Prisons
[BOP’s] policy and interpretation accords an arbitrary and invidious exercise of judgment
with alleging an ‘escape’ on the premise of ‘home confinement,’ but does not adhere to the
P.5502.01.” Petitioner asserts that “escapes from non-secured facilities . . . [such as]
Home Confinement, . . . ‘are among [that which] the Guidelines suggest not be reported to
the CODO [Correctional on Duty Officer] telephonically.’” Id. Thus, he claims that the
respondant cannot support this violation, noting further that it is not supported with an
The petitioner’s objection to the above policy is misplaced. The above policy
represents a longstanding, stated BOP policy which was properly applied in this case.
While the petitioner states that such violations are among those which the Guidelines
suggest not be reported, it is within the clear discretion of the BOP to do so. Further, the
record clearly shows that while an affidavit was not filed, the violation was supported by
both a clear record of an arrest while on home confinement and the testimony of the
petitioner’s wife that he was not at his residence when the Brooklyn RRC placed a random
call to be sure the petitioner was abiding by his terms of release. Accordingly, the petitioner
did violate his conditions by being on technical escape status. As such, the objection [Doc.
21] is OVERRULED.
Case 2:13-cv-00021-JPB-DJJ Document 24 Filed 07/30/13 Page 8 of 10 PageID #: 145
In his second objection, the petitioner asserts that the R&R completely ignores
Federal Rule of Civil Procedure “12(b)(3)’s interpretation under the void for vagueness
doctrine.” Id. Therefore, the petitioner argues that nothing in the R&R’s “finding over
comes (sic) the ‘void for vagueness’ doctrine qualifying Home Confinement within the
BOP’s Prohibited acts and sanction pursuant to code 2012.” Id. In support, the petitioner
argues that “Ms. Causey completely over looked (sic) that at the time she placed petitioner
on ‘escape’ status he was in the custody of DEA agents and conclusively provide that Ms.
Causey, directive (sic) to conclude petitioner as ‘escape’ is simply untrue.” Id.
This objection is similarly misplaced. The petitioner simply does not understand the
nature of the offense. While it is true that at the time he was not at his residence when the
RRC placed its random call, the petitioner was in DEA custody. The BOP’s policy clearly
provides that escape includes: “escape from any secure or non-secure institution, including
community confinement.” See BOP P.S. 5270.09. Additionally, P.S. 7300.09 of the
Community Corrections Manual, indicates that the BOP includes in its definition of
“escape,” arrests while on home confinement. In its instructions to RRC’s on how to
complete escape reports, the BOP indicates that the RRC’s are to use the escape form
when inmates are arrested on home confinement. Id. Further, the Brooklyn House
handbook – which
its residents – states under
“Absconds/Escapes,” that if any law enforcement authority arrests the inmate, the inmate
will be placed on technical escape status. Id. Such was the case here. Accordingly, the
petitioner’s objection [Doc. 21] is OVERRULED.
In his third objection, the petitioner argues that “(1) Home confinement is not
Case 2:13-cv-00021-JPB-DJJ Document 24 Filed 07/30/13 Page 9 of 10 PageID #: 146
incarceration and (2) the alternative as ‘a proposition or situation offering a choice between
two or more things only one of which may be chosen or one of two or more things, courses,
or proposition to be chosen, makes perfectly clear is more of an (sic) ‘voluntary’ alternative
to incarceration.” Accordingly, he argues that the BOP’s disciplinary assessment that a
violation of code 200 “escape,” is an inaccurate use of information to classify him as an
escapee, when he was not in the Community Corrections Center Brooklyn House, but
instead in his own house with his wife who openly admitted that he was under arrest when
the Brooklyn House staff called. Therefore, he asserts that a “voluntary” placement in his
own home is not a violation of the BOP’s rules and regulations. Id. This objection appears
to assert the same argument as objection number two above. Accordingly, for the same
reasons, this objection [Doc. 21] is likewise OVERRULED.
Upon careful review of the report and recommendation, it is the opinion of this Court
that the magistrate judge’s Report and Recommendation [Doc. 19] should be, and is,
hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s
report. The Government’s Motion to Dismiss, or in the Alternative, for Summary Judgment
[Doc. 14] is GRANTED. Further, the petitioner’s Objections [Doc. 21] are OVERRULED.
Accordingly, the petition under 28 U.S.C. § 2241 [Docs. 1 & 5] is DENIED and DISMISSED
WITH PREJUDICE. Therefore, this case is hereby ORDERED STRICKEN from the active
docket of this Court. The Clerk is DIRECTED to enter a judgment in favor of the
As a final matter, upon an independent review of the record, this Court hereby
Case 2:13-cv-00021-JPB-DJJ Document 24 Filed 07/30/13 Page 10 of 10 PageID #: 147
DENIES the petitioner a certificate of appealability, finding that he has failed to make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: July 30, 2013.