United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane, United States District Judge
brings these habeas corpus actions pursuant to 28 U.S.C.
§ 2241. The matters are before the Court on remand from
the Ninth Circuit Court of Appeals. See Lane v.
Feather, 610 Fed.Appx. 628 (9th Cir. 2015). For the
reasons that follow, the Petitions for Writ of Habeas Corpus
is currently an inmate in the custody of the Bureau of
Prisons ("BOP") at the United States Penitentiary
at Leavenworth, Kansas. At the time he filed his original
petitions in this court, he was incarcerated at the Federal
Correctional Institution in Sheridan, Oregon ("FCI
filed three petitions alleging that the BOP violated
petitioner's due process rights in prison disciplinary
proceedings. Lane v. Feather, Case No.
3:12-cv-02360-PA; Lane v. Feather, Case No.
3:13-cv-0005-PA; Lane v. Feather, Case No.
3:13-cv-00100-PA. In each case, petitioner challenged a
Disciplinary Hearing Officer ("DHO") finding that
petitioner violated BOP Prohibited Act Code 203, 28 C.F.R.
§ 541.3 Table 1, 203 ("Section 203"), which
prohibits prison inmates from threatening another with bodily
harm. Specifically, petitioner alleged the BOP did not have
"some evidence" to support a finding of a Section
203 violation. District Judge Owen M. Panner found there was
some evidence to support the violations, and denied the
appealed, arguing for the first time on appeal that the
BOP's application of Section 203 violated his First
Amendment rights. The three cases were consolidated, and in
Lane v. Feather, 610 Fed.Appx. 628 (2015), the Ninth
Circuit vacated Judge Panner's judgments and remanded the
cases to this court.
Ninth Circuit reasoned that before determining whether
"some evidence" supported the DHO's findings
that petitioner violated Section 203, the court needed to
first resolve the definition of "threat" for the
purposes of Section 203. Lane, 610 Fed.Appx. at 629.
The Ninth Circuit concluded that Section 203 "should be
interpreted to prohibit all threatening statements, whether
they amount to true threats or not." Id. This
interpretation of the word "threat" implicated
petitioner's First Amendment rights. As such, the
prohibition against threatening bodily harm against another
in outgoing prisoner mail found in Section 203 could only be
valid if it satisfied the test set forth by the Supreme Court
in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct.
1800 (1974). Id. Upon finding that the record was
not sufficient to make such a determination, the Ninth
Circuit remanded the matter to this court "to determine
whether Section 203 satisfies Procunier." Id.
Because the matter was vacated and remanded based on
petitioner's First Amendment argument, the Ninth Circuit
did not reach petitioner's alternative challenges.
Id. at 629 n.2
2008 Disciplinary Proceeding - Case No.
2008, while petitioner was housed at the United States
Penitentiary in Atlanta, Georgia, petitioner was charged in
an incident report with threatening another person in
violation of Section 203. The reporting officer described the
violation as follows:
On December 16, 2008, at 10:20 a.m., I opened an electronic
mail message forwarded from Central Office regarding an
Administrative Remedy Appeal filed by [petitioner]. The
attachment received included the Central Office
Administrative Remedy Appeal form, and two handwritten notes
from [petitioner]. It reads "I don't think my
judgment and commitment was 'verified' I'm going
to bet my life! Are you willing to bet a Guard's
life?" This communication relays intent to inflict
physical or other harm on any occasion.
Resp. Exh. 1, Moran Decl. ¶ 4, Att. 4.
conducted a hearing and found petitioner guilty of the
charged offense. The DHO ordered petitioner to forfeit 27
days of good time credit, imposed 30 days of disciplinary
segregation, and took away petitioner's telephone
privileges for 180 days.
2009 Disciplinary Proceeding - Case No.
2009, while housed at the Federal Correctional Institution in
Bennetsville, South Carolina, petitioner was charged in an
incident report with threatening another person with bodily
harm in violation of ...