ALD-146                                                            NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 15-2871
                                         ___________

                                 JOHN CHARLES KENNEY,
                                               Appellant

                                               v.

                              WARDEN LEWISBURG USP
                         ____________________________________

                       On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                               (D.C. Civil No. 1-14-cv-01030)
                        District Judge: Honorable Sylvia H. Rambo
                        ____________________________________

           Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
                  or Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6.
                                     February 19, 2016

              Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges

                              (Opinion filed: February 23, 2016)
                                          _________

                                           OPINION*
                                           _________

PER CURIAM

         Appellant John Charles Kenney, an inmate at U.S.P. Lewisburg, appeals from the


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
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District Court’s denial of his habeas petition pursuant to 28 U.S.C. § 2241. Because this

appeal does not present a substantial question, we will summarily affirm. See Third

Circuit LAR 27.4 and I.O.P. 10.6.

       Kenney challenges his August 7, 2013 disciplinary proceedings for assaulting

another inmate, in which he was sentenced to 27 days’ loss of good conduct time, loss of

phone privileges, loss of commissary privileges, and loss of visiting privileges for 120

days. Kenney denies committing the assault. He also claims that his disciplinary

proceedings violated his constitutional right to due process for three reasons: (1) the

Disciplinary Hearing Officer (“DHO”) who presided over his hearing refused to call two

witnesses on Kenney’s behalf, (2) the staff representative who was appointed to assist

Kenney refused to conduct pre-hearing preparation and refused to contact people on his

behalf, and (3) insufficiency of the evidence. The District Court agreed that Kenney’s

challenge was to the execution of his sentence, and therefore appropriate under § 2241. It

denied his petition, however, finding that Kenney was afforded his minimum procedural

due process rights as set forth by the Supreme Court’s decision in Wolff v. McDonnell,

418 U.S. 539, 563-67 (1974). Additionally, finding that the DHO’s findings were

supported by “some evidence,” the District Court held that the DHO’s decision was

entitled to deference. See Superintendent v. Hill, 472 U.S. 445, 456-57 (1985).

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise

plenary review over the district court’s legal conclusions and apply a clearly erroneous


constitute binding precedent.
                                              2
standard to its factual findings.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538

(3d Cir. 2002).

          The District Court correctly concluded that Kenney was not denied his

constitutional right to due process. As the Supreme Court has stated, inmates are

afforded the right to: (1) appear before an impartial decision making body; (2) twenty-

four hour advance written notice of the disciplinary charges; (3) an opportunity to call

witnesses and present documentary evidence in his defense when it is consistent with

institutional safety and correctional goals; (4) assistance from an inmate representative if

the charged inmate is illiterate or complex issues are involved; and (5) a written decision

of the fact finder of the evidence relied upon and the rationale behind the disciplinary

action.

          The record reflects that Kenney was afforded these rights. Kenney was given

written notice of his charges on July 11, 2013, and his hearing was not until August 7,

2013, well over twenty-four hours later. He was afforded a staff representative for his

hearing,1 and does not dispute the impartiality of the DHO who presided over his hearing.

Finally, he was given a written decision with the reasons for his disciplinary action –

multiple eye-witness accounts of prison staff indicated that Kenney kicked Coutinho-

Silva several times in the abdomen and legs on the morning of July 11, 2013. He refused




1
 Kenney complains that the staff representative, Mr. Hollenbach, did not conduct pre-
hearing preparation. This is unsupported by the record.
                                              3
to stop despite being ordered to do so several times, and stopped only when chemical

agents were deployed on him. D.C. dkt #1-1 at 3.

       Kenney complains that two witnesses were not called on his behalf during his

disciplinary hearing: inmate Coutinho-Silva and Lieutenant Roger Miller. He claims that

Coutinho-Silva, whom he allegedly assaulted, would have testified that Kennedy did not

assault him. He testified that Lieutenant Roger Miller would have “clear[ed] all this up.”

D.C. dkt #1-1 at 3. Coutinho-Silva was not called as a witness because he was housed in

a Special Management Unit separate from Kenney at the time of the hearing, and calling

him as a witness would have presented security concerns. Id. His account, which stated

that Kenney did not assault him, was read during the hearing. Id. Miller was not called

as a witness because he documented his eyewitness account of the incident in a

memorandum, which was read during the hearing. Id. The DHO stated that, in any case,

Miller would have been an adverse witness. Id. The DHO’s refusal to call these

witnesses is in line with the Supreme Court’s opinion in Wolff. As the Court stated,

“Although we do not prescribe it, it would be useful for the [DHO] to state its reason for

refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards

presented in individual cases.” Wolff, 418 U.S. at 566. Inmates do not have an

“unqualified right to call witnesses.” Id. We conclude that the DHO’s refusal to call

Coutinho-Silva and Miller did not deprive Kenney of his right to due process.

        The District Court also correctly concluded that the DHO’s decision to sanction

Kenney was supported by “some evidence,” as required under Superintendent v. Hill.
                                              4
“[W]here good-time credits constitute a protected liberty interest, a decision to revoke

such credits must be supported by some evidence.” 472 U.S. at 447. However,

“[a]scertaining whether the “some evidence” standard is satisfied does not require

examination of the entire record, independent assessment of witnesses’ credibility, or

weighing of the evidence, but, instead, the relevant question is whether there is any

evidence in the record to support the disciplinary board’s conclusion.” 472 U.S. at 455-

56. Here, the DHO explained that the weight of the evidence indicated that Kenney

assaulted Coutinho-Silva because multiple prison staff who were eye-witnesses of the

incident stated that Kennedy committed the assault. The Court therefore correctly

concluded that this meets the “some evidence” standard.

       As this appeal presents no substantial question, we grant the Appellees’ motion for

summary affirmance and will summarily affirm the judgment of the District Court.




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