The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner is a federal prisoner proceeding pro se with an application
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1
By order, filed on February 7, 2012, pursuant to a motion
brought by petitioner to strike any pleadings by respondent's
then-counsel, Matthew Fletcher, who was private counsel for the
federal government, was removed from representation of the respondent
warden, and the United States Attorney was substituted in as counsel
and the present warden of Federal Correctional Institution
(FCI)-Herlong, Michael Babcock, substituted in, in his official
capacity, for respondent. In addition, the AUSA assigned to the case
was to inform the court whether or not private counsel's briefs on the
merits and, if any supplemental
briefs were to be filed, they were ordered filed no later than March
By order, filed on March 15, 2012, the undersigned noted that the U.S. Attorney's Office had filed a response [answer] to the petition on March 9, 2012, and petitioner was directed to file any reply within thirty days of the March 15th order, after which the matter was to be deemed submitted. No reply was filed to the AUSA's answer and the time for doing so has expired and the matter has been submitted. Although petitioner did not file a reply to the answer by the U.S. Attorney, the court will, nevertheless, to the extent it is relevant consider petitioner's prior reply/traverse which had been filed in opposition to the prior answer filed by private counsel.
The court has previously set forth petitioner's claims in adjudicating
respondent's former counsel's prior motion to dismiss and essentially
recapitulates it here with any appropriate modification.*fn2
Petitioner, who was incarcerated at Federal Correctional
Institution (FCI) - Herlong at the time of filing his petition,
challenges the extended duration of his confinement, adhered to at
Herlong, as a result of an alleged violation of his constitutional due
process rights arising from, inter alia, a disciplinary hearing which
resulted in his being deprived of twenty-seven (27) days of good
conduct credits while confined at a private Eden,Texas detention
facility run by a private company, Corrections Corporation of America
(CCA). Petition, pp. 7-15[.]*fn3 [ ] According to the
case docket, petitioner is currently housed at privately run detention
facility, Adams County Correctional Center.
Evidently to provide background to his challenge*fn4 , petitioner claims to have been issued an incident report while he was at the Eden Detention Center (hereafter, EDC) in retaliation for his having spoken with Federal Bureau of Prisons (hereafter, BOP) personnel who visited EDC, the incident report resulting in his placement in the EDC special housing unit, or SHU. Petition, p. 7. After having been housed in the SHU for several months, an unnamed captain demanded that petitioner give up his sweatsuit, which he was permitted "due to the brutal cold" of his room. Id. This action was also retaliatory, according to petitioner, this time for petitioner's having mailed out a copy of a memo which he was mistakenly given which described a conspiracy to violate petitioner's constitutional rights. Id.*fn5 Petitioner was issued another incident report for refusing to give up his sweatsuit. Id., at 7-8.
On February 12, 2008, a hearing was held concerning, presumably, the second incident report regarding petitioner's refusal to give up his sweatsuit, wherein a Captain Overstreet*fn6 proposed to expunge it, if petitioner would return the memoranda, which, however, petitioner had already mailed to his legal representative. Petition, p. 8, Exh. A, p. 18. When petitioner refused to return the memo[s], the captain "became furious" and tightened petitioner's handcuffs to break his wrists, and took petitioner to his room, leaving him for hours in "unbearable pain." Id. at 8. Petitioner lost control of his bowels, after which the captain returned with a SWAT team and dragged petitioner to a room where the captain activated the sprinkler system to flood the room in which petitioner had been placed. Id. Thereafter, the captain fabricated a charge against petitioner for "destroying government property," the property being the sprinkler head which the captain himself had tampered with. Id. As a result of this incident, petitioner was subjected to a disciplinary hearing in absentia,*fn7 at which petitioner was assessed the 27 days of good time credit loss. Id. at 8-9. See Order and Findings and Recommendations, filed on April 25, 2011, pp. 1-3.*fn8 Legal Standards
While prisoners may not be wholly deprived of their constitutional rights, "there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution... ." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974). "Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id. A prisoner's due process rights must be accommodated to the "legitimate institutional needs" of a prison.Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir.1989), citing Superintendent, etc. v. Hill, 472 U.S. 445, 454--455, 105 S.Ct. 2768  (1984). With respect to prison disciplinary proceedings, the minimum procedural requirements that must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses and present documentary evidence in his defense, when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented are legally complex. Id. at 563--71. Confrontation and cross examination are not generally required. Id. at 567.
In addition, due process requires that the decision be supported by "some evidence." Superintendent v. Hill, 472 U.S. at 455, 105 S.Ct. 2768, citing United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 71 L.Ed. 560 (1927). In Hill, the United States Supreme Court explained that this standard is met if "there was some evidence from which the conclusion of the administrative tribunal could be deduced ..." Id. "Ascertaining whether this standard is satisfied does not require an examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence."
Hill, 472 U.S. at 455--456. Instead, "the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id.
The Hill Court provided justification for the less demanding standard:
We decline to adopt a more stringent evidentiary standard as a constitutional requirement. Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances.  The fundamental fairness guaranteed by the Due Process Clause does not require the courts to set aside decisions of prison administrators that have some basis in fact.  Revocation of good time credits is not comparable to a criminal conviction,  and neither the amount of evidence necessary to support such a conviction,  nor any other standard greater than some evidence applies in this context.
Id. at 456 [citations omitted].
"The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board." Hill,at 457. Even where the evidence as in Hill "might be characterized as meager," if "the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary," those findings must be upheld. Id. Therefore, if the procedures outlined above are afforded to a prisoner, and "some evidence" supports the decision of the ...