Owl Feather-Gorbey v. F-BOP Designation Center, No. 5:2022cv00131 - Document 10 (S.D.W. Va. 2023)

Court Description: MEMORANDUM OPINION AND ORDER adopting the Proposed Findings and Recommendations; granting the Respondent's Motion to Dismiss; and denying Petitioner's Amended Petition for a Writ of Habeas Corpus, all filed in the lead case, and dismisses this matter. Signed by Judge Frank W. Volk on 9/29/2023. (cc: counsel of record; any unrepresented party) (lca)

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Owl Feather-Gorbey v. F-BOP Designation Center Doc. 10 Case 5:22-cv-00131 Document 10 Filed 09/29/23 Page 1 of 6 PageID #: 21 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT BECKLEY (CHIEF) COL. MICHAEL S. OWL-FEATHER GORBEY, Petitioner, v. CIVIL ACTION NOS. 5:22-cv-00007 5:22-cv-00131 WARDEN, USP THOMSON, Respondent. MEMORANDUM OPINION AND ORDER Pending are Petitioner Michael S. Owl-Feather Gorbey for a Writ of Habeas Corpus [Doc. 15], filed August 26, 2022, and Respondent Warden Dismiss or, in the alternative, for Summary Judgment [Doc. 18], filed October 20, 2022. This action was previously referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for submission of proposed findings and a recommenda 1 Magistrate Judge Tinsley filed his PF&R on August 21, 2023. Magistrate Judge Tinsley recommended that the Court grant Mr. FeatherGorbey timely filed numerous objections [Doc. 36]. On August 26, 2022, Magistrate Judge Tinsley ordered these cases consolidated, with Case No. 5:22-cv-00007 designated as the lead case. [Doc. 14]. On September 15, 2022, Petitioner timely objected to the order. [Doc. 17]. Inasmuch as Magistrate Judge Tins the Court FINDS Magistrate was not clearly erroneous or contrary to law. objections are OVERRULED [Doc. 17]. 1 Dockets.Justia.com Case 5:22-cv-00131 Document 10 Filed 09/29/23 Page 2 of 6 PageID #: 22 I. § 636(b)(1). The Court need not review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C. § 636(b)(1) (emphasis add portions of the report or specified proposed findings or recommendations to which objection is made d Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). II. The Court first considers Mr. Featherrole in this case. Mr. Feather-Gorbey contends that 28 U.S.C. § 636(b)(1)(B) does not permit nonconsensual referrals to a magistrate judge. [Doc. 36 at 2]. In McCarthy v. Bronson, 500 U.S. 136 (1991), the Supreme Court of the United States held that § 636(b)(1)(B) permits nonconsensual referrals to magistrate judges for such purposes of applications for post-trial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement by prison administrators cases alleging a specific episode of unconstitutional conduct 500 U.S. at 138, 141 42, 144. Accordingly, the Court finds that Magistrate Judge Tinsley was authorized to conduct hearings and submit proposed findings of fact and a recommended Case 5:22-cv-00131 Document 10 Filed 09/29/23 Page 3 of 6 PageID #: 23 disposition to the Court pursuant to § 636(b)(1)(B) and OVERRULES Mr. Feather-Gorbey objection. Mr. Feather-Gorbey also objects to Magistrate Judge Tinsley presiding over any . . . cases of [his out of concern for judicial bias. [Doc. 36 at 1]. Pursuant to 28 U.S.C. § 455(a), tive one, requiring a judge United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (quoting In re Beard, 811 F.2d 818, 827 (4th Cir. reasonable, well- Newport News Holdings Corp., v. Virtual City Vision, Inc., 650 F.3d 423, 433 (4th Cir. 2011) (citing United States v. DeTemple United States v. Morris, Beard, 811 F.2d at 827. DeTemple not, however, required to recuse himself simply because of unsupported, irrational, or highly Cherry, 330 F.3d at 665 (internal quotations omitted). Section 455(b) provides a list bias or prejudice must, as a general matter, stem Case 5:22-cv-00131 Document 10 Filed 09/29/23 Page 4 of 6 PageID #: 24 Belue v. Leventhal, 640 F.3d 567, 572 (4th Cir. 2011) (quoting Liteky v. United States, 510 U.S. 545, 545 51 (1994)). In applying the extrajudicial source limitation, the Supreme Court has recognized that Liteky, 510 U.S. at 555. Without more, su extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or Id. Mr. Feather-Gorbey fails to point to any extrajudicial source of bias or prejudice warranting recusal of Magistrate Judge Tinsley under Sections 455(a) or (b)(1). Although Mr. Feather-Gorbey accuses Magistrate Judge Tinsley of Mr. Feather- Gorbey, he provides no evidence to support this bare assertion. Accordingly, the Court OVERRULES Mr. FeatherThe Court next considers Mr. Feather-Gorbey Tinsley Magistrate Judge the disciplinary proceedings Mr. Feather-Gorbey faced while he was incarcerated at the Federal , and April 15, 2022. [Doc. 15]. Specifically, Mr. Feather-Gorbey contends the DHO was not impartial because she ordered a re-investigation of the incident by a non-involved staff member due to a conflict by the initial investigator. [Doc. 36 at 3]. Mr. Feather-Gorbey contends that this action by the DHO shows bias inasmuch as Federal Bureau of P policy does not permit reinvestigations. Id. However, 28 C.F.R. § 541.8(3) expressly authorizes the DHO to refer for further investigation, review, and Mr. Feather-Gorbey has not pointed to any authority prohibiting reinvestigation or Case 5:22-cv-00131 Document 10 Filed 09/29/23 Page 5 of 6 PageID #: 25 requiring the removal or change of the DHO where a reinvestigation occurs. Further, a DHO is considered impartial so 541.8(b). The DHO she was not involved in the investigation of Mr. Feather- ions, but merely [Doc. 18 at 27 28; Doc. 26 at 2 3]. Mr. Feather-Gorbey also alleges that the DHO was impartial because she had ex parte communications with the reporting officer prior to Mr. Feather- disciplinary hearings. [Doc. 36 at 4 5]. However, Mr. Feather-Gorbey has failed to specify any particular ex parte communications to which he is referring, nor has he elaborated on the possible substance of any such communications. Because communication between the DHO and the reporting officer does not equate an actual bias per se, Mr. Feather-Gorbey has not sufficiently demonstrated that the DHO in was not impartial. Accordingly, the Court OVERRULES Mr. Featherobjections. Finally, Mr. Feather-Gorbey objects to Magistrate Judge Tinsley that the DHO was within her authority to impose a loss of determination GCT for a 300-level offense, even where it is not a repeated offense. Mr. Feather-Gorbey asserts that 28 C.F.R. § 541.7(f) prohibits the Unit Discipline C from imposing the loss of GCT as a sanction for a 300-level offense, and because this was his first level 300 offense, the DHO should have remanded the charges to the UDC for sanctioning. However, Section 541.8(g) severity level prohibited act such as 331 (Possession of a Non-Hazardous Tool), see § 541.3 tbl. 1, of which Mr. Feather-Gorbey was found guilty, [Doc. 18, Ex. 2, Attach. C, DHO Report (IR Case 5:22-cv-00131 Document 10 Filed 09/29/23 Page 6 of 6 PageID #: 26 3493959)]. One of the available sanctions for a DHO to issue for a moderate severity level act such as possessing a non-hazardous tool is the disallowance of GCT in the amount of 1 14 days. See § 541.3 tbl. 1. So, while it is true that the UDC may not impose the loss of GCT as a sanction for a 300-level offense, at the conclusion of Mr. Featherthe charges to the DHO. See incident report [may] be referred to the Discipline Hearing Officer (DHO) for further review, based on the seriousness of the prohibited act(s) charged. And Mr. Feather-Gorbey has not pointed to any supporting policy or regulation requiring a DHO to remand a first time 300-level offense to the UDC, or otherwise restricting a DHO from sanctioning a violator with loss of GCT. Therefore, the Court OVERRULES Mr. FeatherIII. Accordingly, the Court ADOPTS the PF&R [Doc. 32], GRANTS Motion to Dismiss or, in the alternative, Motion for Summary Judgment [Doc. 18], DENIES the [Doc. 15], and DISMISSES the matter. The Court directs the Clerk to transmit a copy of this Order to any counsel of record and any unrepresented party. ENTER: September 29, 2023

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