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Lane v. Feathers

United States District Court, D. Oregon

September 22, 2017

MARK ALAN LANE, Petitioner,
v.
MARION FEATHER, Warden, Respondent.

          OPINION AND ORDER

          Michael McShane, United States District Judge

         Petitioner 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 are DENIED.

         PROCEDURAL BACKGROUND

         Petitioner 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 Sheridan").

         Petitioner 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 petitions.

         Petitioner 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.[1]

         The 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

         FACTUAL BACKGROUND

         I. 2008 Disciplinary Proceeding - Case No. 2:12-cv-02360-MC

         In 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.

         The DHO 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.

         II. 2009 Disciplinary Proceeding - Case No. 3:13-cv-00100-MC

         In June 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 ...


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