United States District Court, E.D. Kentucky, Northern Division
ROBERT S. VISINTINE, Petitioner,
THOMAS SMITH, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
R. Wilhoit, Jr United States District Judge
Robert Visintine has filed a. pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241
challenging the imposition of disciplinary sanctions by
prison officials. [D. E. No. 1] This matter is before the
Court to conduct to initial screening required by 28 U.S.C.
§ 2243. Alexander v. Northern Bureau of
Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011).
January 2016, a prison officer found an improvised knife -
razor blades attached to a plastic hangar - inside a bag
owned by Visintine in Visintine's cell. The officer
therefore issued an Incident Report charging Visintine with
possession of a weapon, a Code 104 offense. [D. E. No. 6-1 at
days later, a Disciplinary Hearing Officer ("DHO")
convened a hearing on the charges. Visintine did not present
witnesses or documentary evidence in his defense. Instead, he
asserted that while he owned the bag in which the knife was
found, the knife itself did not belong to him and that he had
never possessed it. He further stated that he had no history
of violence while incarcerated, and that if he had wanted to
possess a weapon, he would have made it out of steel and
hidden it in the laundry where he worked instead of in his
cell. [D. E. No. 6-1 at 1]
found Visintine guilty of the charge, noting that he
acknowledged that the bag containing the knife belonged to
him; that it was found in his cell; and that BOP regulations
make him legally responsible for keeping his cell and his
belongings free from contraband. The DHO imposed various
sanctions, including the disallowance of 40 days of Good
Conduct Time ("GCT"). [D. E. No. 6-1 at 3]
Visintine appealed the disciplinary conviction and the
penalty imposed on several grounds, but the BOP denied relief
on March 31, 2017. [D. E. No. 6-1 at 6-10]
petition, Visintine argues that his due process rights were
violated because there was insufficient evidence to support
the conviction for possessing the weapon for two reasons.
First, because the weapon was found in his cell, which he
characterizes as a "common area, " and not locked
away inside his personal locker. [D. E. No. 1 at 5, 11-12]
Second, because at the moment the weapon was found at 11:00
a.m., he was not physically holding the weapon, but was
instead in the library. [D. E. No. 1 at 5, 9-10] He further
argues that the use of "inaccurate and incomplete
information" in finding him guilty violates a provision
of the Privacy Act, 5 U.S.C. § 552a(g)(1)(C), (D).
Finally, he argues that the forfeiture of 40 days of good
conduct time was impermissible under BOP regulations because
it exceeded the amount of GCT he had earned at the
time. [D. E. No. 1 at 4, 5-6]
respect to Visintine's arguments under the Due Process
Clause, when a prison disciplinary board takes action that
results in the loss of good time credits in which the
prisoner has a vested liberty interest, the Due Process
Clause requires prison officials to observe certain
protections for the prisoner. Specifically, the prisoner is
entitled to advanced notice of the charges, the opportunity
to present evidence in his or her defense, whether through
live testimony or documents, and a written decision
explaining the grounds used to determine guilt or innocence
of the offense. Wolff v. McDonnell, 418 U.S. 539,
563-66 (1974). Further, the board's findings used as a
basis to revoke good time credits must be supported by some
evidence in the record. Superintendent v. Hill, 472
U.S. 445, 454 (1985); Selby v. Caruso, 734 F.3d 554,
559 (6th Cir. 2013).
challenges to the sufficiency of the evidence implicate only
the last requirement. But when determining whether a decision
is supported by "some evidence, " the Court does
not conduct an independent review of the evidence or assess
the credibility of witnesses. It asks only "whether
there is any evidence in the record that could support the
conclusion reached by the disciplinary board."
Hill, 472 U.S. at 455-56. Here, the improvised knife
was found in a bag Visintine admitted belonged to him, and
which was located in his cell. These facts more than satisfy
the "some evidence" standard.
fact that Visintine was not physically holding the weapon
when it was found and that it was not contained in his
personal locker do not establish that he did not
"possess" it. BOP regulations expressly require
every inmate to maintain his or her cell free of contraband.
BOP Program Statement ("PS") 5270.09 Appx. C (Aug.
1, 2011). Accordingly, under functionally-indistinguishable
facts courts have routinely found that weapons discovered in
an inmate's cell are within his or her constructive
possession, and have upheld the imposition of disciplinary
sanctions. Cf. Quinanilla v. O'Brien, 127
Fed.Appx. 887, 888-89 (7th Cir. 2005) (homemade knife found
in petitioner's cell provided "some evidence"
that he possessed weapon); Perez v. Rios, No. 7:
08-171-KKC, 2009 WL 499141, at *2 (E.D. Ky. Feb. 27, 2009)
(same); Kenner v. Martimer, No. 7: 08-73-KKC, 2008
WL 2355832, at *3 (E.D. Ky. 2008) (same); Sales v.
Dewalt, No. 5: 08-114-KKC, 2008 WL 1995135, at *2 (E.D.
Ky. May 6, 2008). Nothing about the facts and circumstances
of this case take it outside the scope of this
next invokes the civil remedy provisions of the Privacy Act,
5 U.S.C. § 552a(g)(1)(C), (D), and suggests that somehow
the BOP's records are not "accurate." The cited
provisions of the Privacy Act permit an aggrieved party to
file a civil action if an agency "fails to maintain any
record concerning any individual with  accuracy, relevance,
timeliness, and completeness ..."
Visintine's reliance upon this provision is procedurally
improper and factually unavailing. Procedurally, the Privacy
Act permits the filing of a "civil action" seeking
damages for a violation of its requirements. But habeas
corpus proceedings are not "civil actions, " they
are original proceedings that are considered "civil in
nature." Visintine may file a civil action for damages
under the Privacy Act, but it does not appear that he can
invoke § 552a(e)(5)'s accuracy requirements in this
habeas proceeding as a defense to a disciplinary conviction.
See Locklear v. Holland, 194 F.3d 1313, 1999 WL
1000835, at *1 (6th Cir. 1999) (affirming dismissal of §
2241 petition challenging accuracy on inmate records);
Deters v. U.S. Parole Comm 'n, 85 F.3d 655, 658
n.2 (D.C. Cir. 1996).
Visintine makes no effort to explain how the BOP's
records are not "accurate." He does not allege that
they include false or misleading statements of fact; at most
he merely suggests that he disagrees with the DHO's
conclusion that he possessed a weapon, a
conclusion derived from the uncontroverted fact that a
homemade knife was found inside a bag he owned and inside his
cell. As noted above, those facts are not disputed by
Visintine and are sufficient to uphold his disciplinary
conviction. Even if Visintine could invoke the Privacy Act in
this habeas proceeding, his vague allegations fail to suggest
a violation of § 552a(e)(5)'s accuracy requirements.
Visintine contends that the DHO acted improperly by ordering
40 days GCT forfeit because at the time of the offense he had
less than that amount of unvested GCT available to forfeit.
This is so, he contends, because "[t]he amount of GCT
available for forfeiture is limited to total days in
'non-vested' status at the time of misconduct (less
previous forfeiture)." [D. E. No. 1 at 8-9, quoting PS
guideline set forth in the Program Statement is consistent
with the rule that inmates sentenced under the Sentencing
Reform Act ("SRA") - those who committed their
crimes on or after November 1, 1987 - may earn up to 54 days
GCT for each year served. 18 U.S.C. 3624(b). That credit
vests on the anniversary date at the end of each year
actually served in prison. PS 5270.09 at pg. 13 ("An
inmate sentenced under the [SRA] may not receive statutory
good time, but is eligible ...