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Dalke v. Terris

United States District Court, E.D. Michigan, Southern Division

April 10, 2017

KIP DALKE, Petitioner,
J.A. TERRIS, Respondent.



         Petitioner Kip Dalke (“Dalke”) is a federal prisoner confined at the Federal Correctional Institution in Milan, Michigan (“FCI Milan”). On March 30, 2016, Dalke filed a petition in this Court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (the “Petition”). (See ECF #1.) In the Petition, Dalke challenges a decision of the Bureau of Prisons (“BOP”) to negate 138 days of good-conduct time credit that he had earned. (See id.) The sanction stemmed from an incident in which BOP officials found bottles of alcohol and other items of contraband in a truck that Dalke and two other prisoners drove during a work furlough. The Petition claims that BOP staff members failed to comply with BOP policies during the disciplinary proceedings that preceded the imposition of the sanction. For the reasons stated below, the Court DENIES the Petition.


         Dalke is currently serving a 60-month sentence at FCI Milan following a conviction for participating in a drug conspiracy. The facts relevant to this action occurred when Dalke was confined at the Federal Correctional Institution in Terre Haute, Indiana. On September 23, 2014, shortly after midnight, Dalke and two other inmates drove from the Terre Haute facility to Talladega, Alabama as part of a work furlough tasked with making a delivery. When the three men returned to Terre Haute, prison staff searched the truck and found eight bottles of alcohol and numerous bags of tobacco. Staff also found a temporary Sam's Club membership card bearing Dalke's name and a receipt showing that Dalke purchased tobacco at Sam's Club on the evening of September 23rd. Staff also recovered a cell phone that included a contact for Dalke's mother. The truck's GPS tracking system showed that the three men had deviated from the planned route and driven to a shopping center. According to prison staff, Dalke initially admitted to using the cell phone and purchasing the alcohol and tobacco. (See ECF #7-3.)

         On November 3, 2014, following the initial institutional investigation, an incident report was filed. (See Id. at 1-3, Pg. ID 40-42.) Staff gave Dalke a copy of the incident report that same day. Staff later prepared a re-write of the incident report containing additional details, and staff gave the re-write to Dalke on December 1, 2014. (See Id. at 4, Pg. ID 43.)

         The incident was referred to the Unit Discipline Committee (the “Discipline Committee”), and that committee held a hearing on December 3, 2014. The report from this hearing indicates that Dalke was advised of his rights and that he chose not to make a statement. (See Id. at 6-7, Pg. ID 45-46.) The Discipline Committee then referred the incident to a Discipline Hearing Officer for an additional hearing. Staff provided Dalke with written notice of that hearing.

         The Discipline Hearing Officer held a hearing on December 15, 2014. (See ECF #7-7.) The hearing report indicates that Dalke was informed of his due process rights, that he indicated that he understood his rights, that he acknowledged that he received a copy of the incident report, and that he indicated that he did not have any witnesses to present at the hearing. (See id.) The staff member appearing on behalf of Dalke indicated that he had met Dalke prior to the hearing and reviewed the report with him. Dalke did not tell the staff member that he had any witnesses to present at the hearing.

         At the hearing, Dalke admitted that he owned the cell phone and bought the tobacco, but he denied that the alcohol belonged to him. Dalke said that unlike the tobacco, there was no receipt for the alcohol and no evidence that he was aware of its presence in the truck. Dalke also denied that he deviated from the planned delivery route.

         The Discipline Hearing Officer nevertheless found Dalke guilty of: (1) possession of a cell phone, (2) possession of alcohol, (3) violation of a furlough condition, and (4) possession of tobacco. The officer relied on the investigating officer's statement, supporting documentation, Dalke's admissions that the cell phone and tobacco were his, Dalke's previous admissions that he and his fellow inmates deviated from the planned route, and Dalke's inconsistent statements about whether or not he purchased the alcohol. (See Id. at 2-4, Pg. ID 56-58.) Dalke was sanctioned with a total loss of 138 days of good-conduct time as well as lesser sanctions. (See Id. at 3-4, Pg. ID 57-58.) Staff delivered the hearing officer's report to Dalke on January 28, 2015.

         Dalke appealed the disciplinary action to the North Central Regional Office, but that office denied relief. Dalke then appealed to the Central Office for Inmate Appeals. Dalke did not receive a response from the central office within the time allowed by law, and he proceeded to file this action on March 30, 2016. (See ECF #1.) The central office subsequently denied Dalke's appeal on May 24, 2016.


         Dalke raises four challenges to the BOP's decision to negate his 138 days of good-conduct time. Dalke first argues that staff issued the incident report beyond the 30-day limit set by BOP policy. Next, he asserts that the report falsely stated that he admitted to possession of alcohol. Third, Dalke claims that the BOP did not assign an investigating officer who was an “employee at the supervisory level.” Finally, Dalke alleges that the investigating officer was not “IDC certified” as required by BOP policy. None of these claims merit relief under Section 2241.

         A petition for a writ of habeas corpus is the appropriate vehicle for a challenge to the revocation of good time credits. See Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987); Jackson v. Carlson, 707 F.2d 943, 946 (7th Cir. 1983); cf. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court held that the Due Process Clause provides certain minimum protections for inmates facing loss of good time credits as a disciplinary sanction. Specifically, “[w]here a prison disciplinary hearing may result in the loss of good time credits, . . . the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 454 (1985) (discussing Wolff, 418 U.S. at 563-67).

         A decision by prison officials to cancel good-time credits need not satisfy the proof beyond a reasonable doubt standard applicable in a criminal trial. Rather, “the requirements of due process are satisfied if some evidence supports the decision by ...

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