BLD-113                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-4036
                                      ____________

                             WILLIAM SOLOMON LEWIS,
                                                  Appellant

                                             v.

                              WARDEN CANAAN USP
                        __________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (M.D. Pa. No. 3-15-cv-00092)
                            District Judge: Robert D. Mariani
                       __________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or
          Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   January 26, 2017

          Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges

                             (Opinion filed: March 23, 2017)
                                     ____________

                                        OPINION*
                                      ____________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
          William Lewis appeals from an order of the District Court denying his petition for

writ of habeas corpus, 28 U.S.C. § 2241. For the reasons that follow, we will summarily

affirm.

          Lewis, while incarcerated at the United States Penitentiary in Coleman, Florida,

was charged in Incident Report No. 2427489 with a Code 227 violation for refusing to

submit to a tuberculosis skin test. Bureau of Prisons (“BOP”) Program Statement

6190.04, requires inmates to undergo a purified protein derivative (“PPD”) skin test for

tuberculosis (“TB”). Lewis complained to prison personnel that he had previously

experienced blistering and swelling following a PPD test. He requested a chest x-ray in

lieu of the test. The request was denied by prison staff and Lewis’s continued refusal

resulted in the misconduct, 28 C.F.R. § 549.12(b)(4).

          On April 12, 2013, Lewis appeared before a Disciplinary Hearing Officer and

stated that he refused the PPD skin test because he had previously suffered an allergic

reaction to it; he noted, however, that he did not refuse all testing for TB. Lieutenant

Phelps appeared as a witness and corroborated Lewis’s refusal, and he further noted that

Lewis had been given a chest x-ray in lieu of a PPD test on at least one occasion while

incarcerated in another institution. The Hearing Officer called T. Objio as a witness, and

she stated that inmates could not have a chest x-ray in lieu of a PPD test unless a prior

allergic reaction was documented. Moreover, Lewis’s records showed that he underwent

a PPD test the year before, in 2012, and those records did not show that he suffered an

allergic reaction. Lewis’s staff representative, Nurse Flagg, stated at the hearing that no

allergic reactions to the PPD test had ever been documented in Lewis’s case. Other

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documentary evidence, including a prior incident report, was submitted for the Hearing

Officer’s review. Lewis presented no documentary evidence in support of his assertion

that he had previously suffered an allergic reaction to a PPD test.

       Following the hearing, the Hearing Officer concluded that Lewis had no basis for

refusing to submit to the PPD test and found him guilty of the misconduct. Lewis was

sanctioned as follows: loss of 27 days of good conduct time; confinement to disciplinary

segregation for 30 days; and loss of commissary and telephone privileges for 90 days. In

addition, his personal property was impounded for 30 days.

       Lewis, who is now incarcerated in Pennsylvania, filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle

District of Pennsylvania, seeking the restoration of his good conduct time. In addition to

setting forth his claim of a violation of his right to due process in connection with the loss

of his good conduct time, he also asserted that he had tried to exhaust his administrative

remedies by appealing the decision of the Hearing Officer. He asserted that he had,

however, received no response to his appeal from the Regional Office. Lewis submitted

documentation of his efforts to administratively appeal his sanctions, and argued that the

requirement should be waived in his case, citing our decision in Brown v. Croak, 312

F.3d 109, 112-13 (3d Cir. 2002) (if prison official thwarts inmate’s ability to exhaust his

administrative remedies, those remedies are not considered available within meaning of

42 U.S.C. § 1997e(a)). The BOP responded that the petition should be denied based on

Lewis’s failure to comply with the complete administrative review process, citing

Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760-61 (3d Cir. 1996) (if prisoner has

                                              3
failed to exhaust administrative remedies due to his procedural default and default

renders administrative process unavailable, review of his habeas claim is barred absent

showing of cause and prejudice). In the alternative, the BOP argued that the petition was

meritless.

       In an order entered on October 3, 2016, the District Court noted the disputed

factual issues relating to Lewis’s efforts to exhaust his administrative remedies but

declined to resolve the dispute, preferring instead to deny the habeas petition on the

merits. In a thorough Memorandum, the Court discussed the applicable law, reviewed

the evidence presented at Lewis’s disciplinary hearing and the Hearing Officer’s findings

and conclusions, and concluded that Lewis was afforded all of his procedural rights, and

that “some evidence” supported the decision of the Hearing Officer. Accordingly, the

District Court concluded, Lewis had failed to make out a due process violation.

       Lewis appeals. We have jurisdiction under 28 U.S.C. § 1291. See Burkey v.

Marberry, 556 F.3d 142, 146 (3d Cir. 2009) (certificate of appealability not required to

appeal from denial of § 2241 petition). Our Clerk granted Lewis leave to appeal in forma

pauperis and advised him that the appeal was subject to summary dismissal under 28

U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P.

10.6. He was invited to submit argument in writing, but he has not done so.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. A

challenge to the BOP’s execution of a sentence, including the sanction of loss of good

conduct time, is properly brought under 28 U.S.C. § 2241. See Woodall v. Federal

                                             4
Bureau of Prisons, 432 F.3d at 235, 241-43 (3d Cir. 2005). We exercise plenary review

over the District Court’s legal conclusions and review its factual findings for clear error.

See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000).

         Due process provides certain procedural protections at a prisoner’s disciplinary

hearing, Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974), as do the governing

regulations, see 28 C.F.R. § 541.5, et seq., but, as explained by the District Court, Lewis

received all of the process he was due. He received advance written notice of the charge,

he called witnesses and gave a statement at the hearing that his refusal was medically

justified, and he elected to have a staff representative speak for him. In addition, Lewis

indicated throughout that he was aware of his rights in connection with the hearing.

Also, the Hearing Officer fully considered all of the evidence and fully explained his

decision to sanction Lewis for refusing to undergo the PPD skin test. Lewis was then

notified of his right to appeal.

         Furthermore, the findings of a Disciplinary Hearing Officer must be supported by

“some evidence in the record,” Superintendent, Massachusetts Correctional Inst. v. Hill,

472 U.S. 445, 454-56 (1985), but again, as explained by the District Court, the standard

was met in Lewis’s case. Lewis does not have a documented history of a severe previous

reaction to the PPD skin test, and the Hearing Officer did not favorably rate his

credibility with respect to his assertion of a justified need for a chest x-ray. Therefore,

the Hearing Officer’s conclusion that Lewis’s refusal to undergo the PPD test was

unjustified is supported by “some evidence.” Lewis’s due process claim is thus without

merit.

                                              5
       We note that, in his Traverse to the BOP’s response to his § 2241 petition, Lewis

relied upon specific text in P.S. 6190.04, in support of his argument that a self-reported

allergy is sufficient to show the need for a chest x-ray in lieu of a PPD skin test.

Specifically, he noted the following text:

              A self-reported, undocumented previous positive tuberculin skin test is not
              a contraindication to receiving a tuberculin skin test unless a severe
              previous reaction (e.g. whole arm swelling or severe blistering) has been
              documented or described by the inmate. *** An inmate may not request to
              substitute a chest radiograph for a screening tuberculin skin test. The only
              exception is when there is a medical contraindication to tuberculin skin
              testing….

P.S. 6190.04 (emphasis added).

       Based on the plain language of the Program Statement, Lewis asserted that he was

entitled to a chest x-ray based solely on his self-reporting of an allergic reaction;

documentation of an allergic reaction in his records was not required, he argued. We

note that the text cited by Lewis appears in the Program Statement’s explanation of BOP

policy with respect to 28 C.F.R. § 549.12 (b)(1), which provides that the BOP “screens

each inmate for TB within two calendar days of initial incarceration.” Accordingly, we

doubt that Lewis’s textual argument has merit; this particular section of P.S. 6190.04

read as a whole pertains to inmates who are completely new to the Bureau of Prisons and

have no records.1 Lewis is not such an inmate.

       But, even assuming that a textual argument has some merit, the self-reporting of a

“severe previous reaction” would necessarily have to be credible. In concluding that


1
 The entire Program Statement was submitted as an exhibit to the BOP’s response to
Lewis’s petition.
                                         6
Lewis’s refusal to undergo a PPD test was unjustified, the Hearing Officer specifically

relied upon a prior incident report from another institution where Lewis had refused a

PPD test. The report stated that Lewis told a nurse that “he has not had a + PPD nor does

he have severe reactions, he [just] chooses not to have the tuberculosis injected into his

body.” Lewis’s credibility was thus at issue at his disciplinary hearing, and the Hearing

Officer specifically found that all staff members’ statements and written observations

were more credible than Lewis’s self-reporting. Accordingly, it was not wrong for the

Hearing Officer to insist upon written documentation in Lewis’s prison record of a prior

severe reaction to the PPD skin test. Finding none, the Hearing Officer properly

adjudicated Lewis guilty of the misconduct.

       For the foregoing reasons, we will summarily affirm the order of the District Court

denying Lewis’s petition for writ of habeas corpus.




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