Wallace v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Andre Lyneal Wallace
v. Civil No. 23-cv-048-JL-AJ
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Self-represented Petitioner, Andre Lyneal Wallace, who is
incarcerated at the Federal Correctional Institution in Berlin,
New Hampshire (“FCI Berlin”), brings a petition for a writ of
habeas corpus (Doc. Nos. 1, 3)1 under 28 U.S.C. § 2241. Mr.
Wallace’s petition is before the undersigned Magistrate Judge
for preliminary review to determine whether it is facially valid
and may proceed in this case. See Rule 4 of the Rules Governing
Section 2254 Cases (“§ 2254 Rules”); see also § 2254 Rule 1(b)
(authorizing court to apply § 2254 Rules to § 2241 petitions);
LR 4.3(d)(4).
Preliminary Review Standard
Pursuant to § 2254 Rule 4, a federal judge must screen
habeas petitions and, if “it plainly appears from the petition
1 The Court construes Mr. Wallace’s initial petition (Doc.
No. 1) and petition addendum (Doc. No. 3), and the attachments
to those documents, in the aggregate, to be the petition in this
case for all purposes.
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and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition.” Id.; see also 28 U.S.C. § 2243; McFarland v. Scott,
512 U.S. 849, 856 (1994) (courts “are authorized to dismiss
summarily any habeas petition that appears legally insufficient
on its face”). In conducting its § 2254 Rule 4 review, the
court construes self-represented litigants’ filings liberally.
See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
Background
Generously construed, the petition asserts the following
facts in support of relief. On January 10, 2023, FCI Berlin
officers placed Mr. Wallace in that facility’s Special Housing
Unit (“SHU”) in response to an incident which resulted in Mr.
Wallace being charged with a disciplinary offense alleging that
he violated Federal Bureau of Prisons (“BOP”) Prohibited Act
Code (“Code”) 108. Mr. Wallace asserts that the FCI Berlin
officers who placed him in the SHU did so in violation of
relevant BOP regulations. Mr. Wallace alleges he was not
afforded any process prior to being transferred to the SHU. Mr.
Wallace also alleges that an officer told him that he would be
in “lock up” for one day, but it appears he was there for
approximately five weeks.
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Mr. Wallace has not described the incident or the
disciplinary charge levied against him, except to say that he
was charged with violating Code 108. Mr. Wallace asserts that
once his disciplinary violation was adjudicated, the
Disciplinary Hearing Officer (“DHO”) sanctioned him by
disallowing forty-one days of his good conduct time (“GCT”) and
restricting his use of the phone and commissary for one year.
Mr. Wallace claims that the sanctions imposed were
“retaliation.” Doc. No. 3, at 1.
Mr. Wallace further claims that being in the SHU caused him
to lose money and property. Specifically, he states that while
he was in the SHU, he had to spend money on hygiene items he had
already purchased but which he couldn’t access while he was in
the SHU, and that after he was released from the SHU he
discovered that some of his property was missing.
Discussion
I. Pre-Disciplinary-Hearing Detention
Mr. Wallace challenges his pre-hearing transfer to the SHU,
and his retention there for a period of time, on the grounds
that he was not provided with an Incident Report within twenty-
four hours of the incident underlying his disciplinary charge,
and that prior to being placed in the SHU, he was not afforded
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appropriate process, advised of his rights, or afforded a
hearing at which he could call witnesses. Mr. Wallace contends
that his transfer to the SHU, and the circumstances of that
transfer, violated his Fifth Amendment right to due process, his
Fourth Amendment right not to be detained without probable
cause, his Eighth Amendment right not to be subjected to cruel
and unusual punishment, and his Thirteenth Amendment right not
to be subjected to involuntary servitude.
A § 2241 petition is the vehicle for a petitioner to
challenge the validity of his confinement, “or to particulars
affecting its duration.” Muhammad v. Close, 540 U.S. 749, 750
(2004) (per curiam). The purpose of a habeas petition is “to
release the applicant from unlawful physical confinement.”
Allen v. McCurry, 449 U.S. 90, 104 (1980).
Mr. Wallace was released from the SHU on or before February
16, 2023, and he was not sanctioned with segregation in the SHU
for his disciplinary violation. Because Mr. Wallace seeks
relief in a § 2241 action, his claims challenging his pre-
disciplinary-hearing detention were mooted by his release from
the SHU, as there is no further relief the Court can grant him
in this case. See Yagman v. Thomas, 612 F. App’x 408, 409 (9th
Cir. 2015); Pinson v. Berkebile, 604 F. App’x 649, 653 (10th
Cir. 2015) (dismissing claim challenging stay in segregation
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where prisoner had been released from segregation at the time of
the court’s ruling, and the segregation time already served did
not increase time in prison); Medberry v. Crosby, 351 F.3d 1049,
1053 (11th Cir. 2003) (same). Accordingly, the District Judge
should dismiss, as moot, all of Mr. Wallace’s claims concerning
his pre-disciplinary-hearing detention in the SHU.
II. Property Claim
In a § 2241 action, a federal prisoner can “challenge the
execution of (rather than the imposition of) his or her
sentence.” Francis v. Maloney, 798 F.3d 33, 36 (1st Cir. 2015);
see also Stegemann v. FCI-Berlin, No. 20-cv-102-SM, 2020 U.S.
Dist. LEXIS 37764, at *5, 2020 WL 1034368, at *2 (D.N.H. Feb.
13, 2020). “[D]amages . . . are “not available in a habeas
action.” Wholey v. Bradley, Civil No. 23-12566-LTS, 2023 U.S.
Dist. LEXIS 204419, at *5, 2023 WL 8439200, at *2 (D. Mass. Nov.
15, 2023) (citing Allen, 449 U.S. at 104), appeal filed, No. 23-
2076 (1st Cir. Dec. 18, 2023).
In his petition, Mr. Wallace alleged that, while he was in
the SHU, prison officials and/or officers lost property which
was not transferred to the SHU with him, and that he had to
repurchase items he had already bought but could not access from
the SHU. Mr. Wallace does not claim that the duration of his
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confinement was impacted by that loss of property and money, and
his claims alleging property loss, which seek compensation, are
not properly asserted in a § 2241 action. The District Judge,
therefore, should dismiss those claims, without prejudice to Mr.
Wallace’s ability to seek damages or other relief in a civil
lawsuit or administrative action, as appropriate.2
III. Disciplinary Sanctions
Prisoners have a protected liberty interest in their GCT,
which affords them certain due process protection in
disciplinary proceedings before those credits can be reduced.
See Sup’t Mass. Corr. Inst. v. Hill, 472 U.S. 445, 453-54
(1985); Wolff v. McDonnell, 418 U.S. 539, 557 (1974). The
minimum procedural due process requirements for prison
disciplinary hearings affecting GCT are: written notice of the
charge; the ability to call witnesses and present documentary
evidence (when doing so is consistent with institutional safety
and correctional concerns); a hearing before an impartial
decisionmaker; and a written statement of the evidence relied on
2 Petitioner stated in his petition that after this case is
resolved, he intends to pursue a civil action under Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971). Nothing in this Report and Recommendation should be
construed as comment on any Bivens action Mr. Wallace may bring
in the future or any claim he may assert therein.
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and reasons for the decision. See Surprenant v. Rivas, 424 F.3d
5, 16 (1st Cir. 2005); Wolff, 418 U.S. at 564-66.
Mr. Wallace’s petition does not specifically explain how
his due process rights were violated with regard to the
disallowance of his GCT as a disciplinary sanction. Instead,
Mr. Wallace states, in conclusory fashion, that his disciplinary
sanctions constituted retaliation. Very liberally construed,
that allegation may assert a due process claim alleging that the
DHO who sanctioned him for his Code 108 violation was not an
impartial decisionmaker, as the disallowance of GCT was
motivated by the DHO’s desire to retaliate against Mr. Wallace,
rather than to punish him for the conduct underlying the
disciplinary charge. Therefore, in an Order issued this date,
the Court directs service of the petition on the respondent to
the extent Mr. Wallace asserts a Fifth Amendment due process
claim alleging that the DHO who imposed sanctions in his
disciplinary case was not impartial in his case.
Conclusion
For the foregoing reasons, the District Judge should
dismiss Mr. Wallace’s claims challenging his pre-disciplinary-
hearing detention in the FCI Berlin SHU as moot; and dismiss his
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property claims, without prejudice to Mr. Wallace’s ability to
assert those claims in a proper forum.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. Fed. R.
Civ. P. 72(b)(2). The fourteen-day period may be extended upon
motion. Failure to file any objection within the specified time
waives the right to appeal the district court’s Order. See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016). Only those issues raised in the written objections to
this Report and Recommendation “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Id. (citations omitted).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 23, 2024
cc: Andrew Lyneal Wallace, pro se
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