The opinion of the court was delivered by: Bumb, District Judge
Petitioner Travis Denny, a prisoner currently confined at FCI Fort Dix, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241*fn1 challenging the results of a prison disciplinary proceeding. Warden Paul Schultz and James Waterfield are named as respondents.
Petitioner has paid the $5 filing fee. Because it appears from a review of the Petition that Petitioner is not entitled to relief, the Petition will be dismissed. See 28 U.S.C. § 2243.
Petitioner is currently incarcerated at the Federal Correctional Institution at Fort Dix, New Jersey, however, the alleged events described in the Petition occurred while Petitioner was incarcerated at Federal Correctional Institution Fairton.
According to the incident report filed by Officer Waterfield on March 11, 2009, during a routine search of B-Right Cell #322, he "noticed something in the duct work of the vent above the sink, it was a 6 1/2 inch sharpened pointed weapon. The shank appeared to be made out of fencing that had been straightened, it had a black electrical tape grip, a piece of white shoelace for a lanyard and a length of dental floss tied on to the lanyard." The officer also found inside a false bottom in the duct work between cells #322 and #323 another sharpened weapon similar to the first one that was 7 inches in length and also apparently made of fencing with an electical tape grip and a black shoelace lanyard. The inmates assigned to cell #322 were Petitioner Inmate Travis Denny and Inmate Sosomon Smith.
On March 26, 2009 the Discipline Hearing Office ("DHO") considered the evidence regarding the contraband weapons and found that Petitioner committed Possession of a Weapon, Code 104 (Incident Report No. 1843256) and imposed sanctions of disallowing 40 days of good conduct time and 60 days disciplinary segregation. Petitioner appealed that decision. On May 22, 2009, a response was issued to the appeal stating that, pursuant to Program Statement 5270.07, Inmate Discipline and Special Housing Units, it is an inmate's responsibility to keep his or her area free of contraband. Petitioner did not deny that a homemade weapon was located in his cell, and as such, the DHO asserts in its response that the DHO reasonably found that Petitioner committed the prohibited act of possession of a weapon because he was accountable for all contraband found in his cell, including items in the duct work.
Petitioner contends that there is not sufficient evidence to support the finding of the Disciplinary Hearing Officer that he possessed the weapons since the contraband was found in a ventilation duct between cells 322 and 323. Petitioner has exhausted his administrative remedies and now seeks to have the results of the hearing reversed by this Court.
II. STANDARDS FOR A SUA SPONTE DISMISSAL United States Code Title 28, Section 2243 provides in relevant part as follows:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Nevertheless, a federal district court can dismiss a habeas corpus petition if it appears from the face of the petition that the petitioner is not entitled to relief. ...