Douvos v. Quintana, 122909 FED3, 09-3449

Docket Nº:09-3449
Opinion Judge:Barry, Fisher and Van Antwerpen, Circuit Judges
Party Name:HARRY DOUVOS, Appellant v. FRANCISCO QUINTANA, WARDEN; DR. KENT CANNON, RESIDENTIAL DRUG ABUSE PROGRAM COORDINATOR
Judge Panel:Before: Barry, Fisher and Van Antwerpen, Circuit Judges
Case Date:December 29, 2009
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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HARRY DOUVOS, Appellant

v.

FRANCISCO QUINTANA, WARDEN; DR. KENT CANNON, RESIDENTIAL DRUG ABUSE PROGRAM COORDINATOR

No. 09-3449

United States Court of Appeals, Third Circuit

December 29, 2009

         NOT PRECEDENTIAL

          Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 10, 2009

         On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 09-cv-00159) District Judge: Honorable Sean J. McLaughlin

          Before: Barry, Fisher and Van Antwerpen, Circuit Judges

          OPINION

          PER CURIAM

         Appellant Harry Douvos, a federal prisoner incarcerated at the Federal Correctional Institution at McKean in Bradford, Pennsylvania, is serving a sentence of 60 months imprisonment imposed by the United States District Court for the Eastern District of Virginia at D.C. Crim. No. 3:06-cr-00337-1. His projected release date is December 10, 2010. Douvos began participating in the Residential Drug Abuse Program (RDAP"), see 18 U.S.C. § 3621(e), at FCI-McKean on August 21, 2008. The RDAP gives the Bureau of Prisons the discretion to alter a prisoner's conditions of confinement or allow him a sentence reduction of up to one year if he successfully completes the program and his conviction was for a nonviolent offense. See id. at § 3621(e)(2)(B). On May 17, 2009, Douvos was issued a misconduct, which, although not serious in itself, had serious implications for his continued participation in the RDAP.

         According to the Incident Report, on May 17, 2009, a recreation specialist searched Douvos's hobby craft assigned locker and discovered ceramic products he was not allowed to possess.1 Douvos was issued a Code 305 misconduct for possession of anything not authorized for retention or receipt by the inmate, and not issued to him through regular channels. He had a Unit Discipline Committee ("UDC") hearing at which he admitted that he had retained the items when he discovered them in his locker. Based on this admission, Douvos was adjudicated guilty of the prohibited act and sanctioned to "hobby craft program removal." Warden Francisco J. Quintana denied Douvos's request for an administrative remedy on June 8, 2009.

         Unfortunately for Douvos, this misconduct resulted in a fourth Drug Abuse Program ("DAP") warning, and four DAP warnings in his case constituted grounds for expulsion from the RDAP. On May 27, 2009, Douvos was expelled three classes short of completing the program. As a result of not completing the program, Douvos did not get the eleven-month and one week reduction in his sentence he would have earned had he successfully completed the program, nor did he get the six-month halfway house placement that had been scheduled to begin on June 16, 2009.2

         On or about June 29, 2009, Douvos submitted for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in United States District Court for the Western District of Pennsylvania (which eventually was filed on the docket on July 23, 2009), and a motion for a preliminary injunction seeking an expedited telephone hearing and reinstatement in the RDAP. Claiming a violation of his constitutional right to due process in that he was not allowed to present witnesses or documentary evidence at his UDC hearing, Douvos sought expungement of the May 17, 2009 Incident Report.3 In the alternative,...

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