Johnson v. United States of America

Filing 15

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 7/11/2017. (c/m 7/11/2017 tds, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

JAMES JOHNSON,
Prisoner Identification No. 57364-053,
Petitioner,
Civil Action No. TDC-16-3468

v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION
James Johnson, currently confined at the Federal Correctional Institution in Cumberland,
Maryland, has filed correspondence that has been construed as a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C.

S 2241.

The Petition seeks the rest?ration of 724 days of revoked

good conduct time, which Johnson lost pursuant to two disciplinary sanctions imposed while he
was confined at the Federal Correctional Institution-Allenwood

("FCI-Allenwood")

Deer, Pennsylvania.

Motion to Dismiss or, in the

Pending before the Court is Respondent's

in White

Alternative, for Summary Judgment, which the Court construes as an Answer to the Petition.
See Rules 1(b) & 5 of the Rules Governing
to any habeas corpus petition).
relief and dismisses the Petition.

S 2254

Cases (permitting a court to apply these rules

For the reasons set forth below, the Court denies habeas corpus

BACKGROUND
I.

First Sanction
On October 17, 2013, while Johnson was confined at FCI-Allenwood, he was charged

with violating Disciplinary Code 111(A) for attempting to make alcohol or intoxicants.

The

charge arose from the recovery from a laundry room of a bag containing liquids. Video footage
revealed that on October 16,2013, Johnson had exited his cell carrying a white bag. He entered
the laundry room and placed the bag on the window sill, where it was discovered by an officer a
few hours later. According to the October 17,2013 Incident Report, Johnson acknowledged that
the contents of the bag were "intended to become intoxicants," "that he had made them," and that
he had "placed them in the laundry room" on October 16, 2013. Answer Ex. 1 Attach. B at 11,
ECF No. 9-2. In his written response to the Incident Report, Johnson stated, "I admit my wrong,
but I didn't say everything in the report!" Id.
On October 22, 2013, the Unit Discipline Committee ("UDC"), a group of independent
prison staff that reviews incident reports once staff investigations are complete, see 28 C.F.R.

S

541.7 (2016), referred the October 17, 2013 Incident Report to a discipline hearing officer
("DHO"), an impartial decisionmaker who had no prior involvement in the matter, see id.

S

541.8. The UDC recommended disciplinary segregation, the loss of good conduct time, a fine,
and the loss of commissary privileges. Johnson received a copy of his rights, waived his right to
a staff representative, and declined to request any witnesses.
The DHO held a hearing on October 31,2013, during which Johnson "was advised of his
[r]ights before the DHO, indicated he understood them," and stated, "The report is true; I accept
responsibility for this."

Answer Ex. 1 Attach. E at 14, ECF No. 9-2.

Upon reviewing the

evidence, the DHO issued a written report finding Johnson guilty of the rule violation. The DHO

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based his ruling on the statements of the reporting officer, the video surveillance footage from
October 16, 2013, a memorandum from the staff member who searched the laundry room, a
photograph of the intoxicants, and Johnson's statements.

The DHO stated that he found "the

greater weight of the evidence" supported the conclusion that Johnson committed the prohibited
act of "Making any Alcohol or Intoxicants (Attempted)." Id. at 16.
Based on the DHO's finding, Johnson was sanctioned with the loss of 41 days of good
conduct time, forfeiture of 324 days of non-vested good conduct time, and the loss of eight
months of telephone and visitation privileges.
disciplinary segregation.

He was also sanctioned with 60 days of

The DHO found that the Code 111(A) conviction warranted the

forfeiture of non-vested good conduct time, in addition to the disallowance of good conduct time,
because the misconduct constituted a "highly aggravated offense which greatly jeopardizes the
safety of staff and inmates" in part because "[v ]iolent acts often follow" the use of intoxicants,
such as during "distribution and payment."

Id at 16. Johnson received a copy of the DHO

report. He unsuccessfully appealed the DHO decision.
II.

Second Sanction
On January 26, 2014, Johnson was charged with violating Code 112 for the use of

alcohol or intoxicants.

On January 25, 2014, Johnson had been asked to submit to a breathalyzer

test. The result of the test was positive, as was the result of a second test taken 15 minutes later.
On January 28, 2014, the UDC referred the charge to the DHO for further disposition based upon
the test reading,

a supporting

memorandum,

and photographs.

The UDC recommended

disciplinary segregation, the loss of good conduct time, loss of commissary privileges, and a fine.
Johnson received a copy of his rights, waived his right to a staff representative, and declined to
request any witnesses.

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On February 12, 2014, the DHO conducted a hearing on the January 25, 2014 incident,
during which Johnson "was advised of his Rights before the DHO, indicated he understood
them," and stated, "The report is true."

Answer Ex. 1 Attach. I at 20, ECF No. 9-2.

After

considering the statements of the reporting officer and Johnson, a photograph of the test reading,
a staff memorandum,

the testing log, and records of Johnson's

Health Services Clinical

Encounter, the DHO found the "greater weight of the evidence" supported the conclusion that
Johnson had committed the prohibited act of "Use of intoxicants," a violation of Code 112. Id. at
20-21.
Johnson was then sanctioned with 60 days of disciplinary segregation, disallowance of 41
days of good conduct time, forfeiture of 400 days of non-vested good conduct time, and loss of
eight months of visitation, telephone, and commissary privileges. The DHO found that the Code
112 charge warranted

the forfeiture of non-vested

good conduct time in addition to the

disallowance of good conduct time because the misconduct constituted a "highly aggravated
offense which greatly jeopardizes the safety of staff and inmates" in part because the use of
intoxicants "potentially threatens" the "orderly running of the facility" and intoxicated inmates
"are the target for violence and staff have great potential for injury responding to this violence."
Id. at 22. Johnson received a copy ofthe DHO report.
DISCUSSION
In his Petition to this Court, Johnson claims that the forfeiture of 724 days of non-vested
good conduct time for the two disciplinary infractions was "unfair, excessive," "capricious,
retaliatory," and violated his "due process and equal protection rights."

Pet. 1, ECF No. 1.

Respondent seeks dismissal of the Petition on the grounds that Johnson's rights under the Due
Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States

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Constitution were not violated, the sanctions were not capricious or excessive, and Johnson
failed to exhaust his administrative remedies as to the Second Sanction.
I.

Motion to Amend Petition
With his Reply to Respondent's Answer, Johnson has filed a Motion to Amend to name

FCI-Warden Timothy Stewart as the proper Respondent.

Respondent had also stated in its

Answer that "Warden Timothy Stewart should be substituted for the United States of America."
Answer at 2 n.1, ECF No. 9-1.

The United States Supreme Court has held that the proper

respondent in a habeas petition is the custodian "with the ability to produce the prisoner's body
before the habeas court." Rums/eld v. Padilla, 542 U.S. 426,434-35

(2004). Johnson's Motion

shall therefore be granted, and the Clerk shall take all necessary steps to substitute Stewart for
that of current Respondent United States of America. The Petition as amended is properly before
the Court.
II.

Exhaustion
A federal prisoner seeking habeas review under 28 U.S.C.

available administrative remedies.

S

2241 must first exhaust

See McClung v. Shearin, 90 F. App'x 444, 445 (4th Cir.

2004). To exhaust a claim arising from a DHO decision, an inmate must file an appeal with the
Bureau of Prisons ("BOP") Regional Director and then, if the first appeal is unsuccessful, with
the BOP General Counsel.
remedies for a

S

See 28 C.F.R.

SS

542.14, 542.15.

2241 petition, however, is not a jurisdictional

Exhaustion of administrative
requirement.

See Laing v.

Ashcroft, 370 F.3d 994, 997-98 (9th Cir. 2004) (describing the exhaustion requirement as applied
to

S

2241 as "prudential").

Accordingly, "even when the defense has been preserved and

asserted by the respondent throughout the proceeding, a court may skip over the exhaustion issue
if it is easier to deny (not grant, of course, but deny) the petition on the merits without reaching

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the exhaustion question."

Santiago-Lugo v. Warden, 785 F.3d 467,475 (1Ith Cir. 2015) (citing

Granberry v. Greer, 481 U.S. 129,131 (1987)). Here, Respondent argues that Johnson failed to
exhaust his claim as to the loss of 400 days of good conduct time resulting from the Second
Sanction, and Johnson concedes that he did not exhaust that claim because he believed it to be
futile once the deadline had passed.

The Court will nevertheless address Johnson's

claims

relating to both the First and Second Sanctions because, as discussed below, dismissal on the
merits is warranted.
III.

Due Process
Respondent asserts that Johnson's Petition should be dismissed because he was afforded

due process at the DHO hearings and because the DHO's findings were based on "some
evidence."

The Court agrees that there is no basis to overturn the DHO's findings because the

hearings met basic due process requirements.
The due process rights afforded in prison disciplinary proceedings where an inmate faces
the possible loss of diminution or good time credits were established by the United States
Supreme Court in Wolffv. McDonnell, 418 U.S. 539 (1974), which provides that an inmate is
entitled to: (1) advance written notice of the alleged violation; (2) a hearing at which the inmate
is afforded the right to call witnesses and present evidence, so long as doing so is not "unduly
hazardous to institutional safety or correctional goals"; (3) the opportunity to have non-attorney
representation when the inmate is illiterate or the disciplinary hearing involves complex issues;
and (4) a written statement by the decisionmaker of the evidence relied upon and the reasons for
any disciplinary action. Id. at 564-66, 570; Baker v. Lyles, 904 F.2d 925, 929 (4th Cir. 1990). In
J

Superintendent, Massachusetts

Correctional Institution, Walpole v. Hill, 472 U.S. 445 (1985),

the Court also held that the findings must be "supported by some evidence in the record," a

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standard which is met if "there was some evidence from which the conclusion

of the

administrative tribunal could be deduced." Id. at 454-55 (quoting United States ex rei. Vajtauer
v. Comm'r of Immigration, 273 U.S. 103, 106 (1927)); see also id. at 447-48,457

(finding that a

prison disciplinary board met due process requirements when it revoked inmates' good time
credits based on an officer's indirect observation that they had assaulted another inmate, even
though the evidence "might be characterized as meager").

There is, however, no constitutional

right to confront and cross-examine witnesses or to have retained or appointed counsel at a
prison disciplinary hearing.

See Wolff, 418 U.S. at 567-68, 570; Brown v. Braxton, 373 F.3d

501,504-05 (4th Cir. 2004).
Here, Johnson's DHO hearings met the due process requirements set forth in Woljf and
Hill.

First, Johnson was given written notice of the charges on the day the reporting officers

prepared the Incident Reports and before the DHO hearings.

Second, on both occasions,

Johnson was informed of his right to call witnesses and of his right to have a staff representative,
both of which he waived. Third, the DHO provided written statements of the evidence he relied
upon and the reasons for the disciplinary actions, which Johnson received.
DHO stated that he relied on direct evidence from the reporting
memoranda,

breathalyzer

test results, a video surveillance

Specifically, the

officers, photographs,

broadcast,

and Johnson's

own

statements that he attempted to make intoxicants and that he tested positive for intoxicants in
violation of Codes 111(A) and 112, which is sufficient to constitute "some evidence" under Hill.
Fourth, Johnson does not allege that he is illiterate or the hearings involved complex issues such
that he was entitled to non-attorney representation that he was then denied. The DHO hearings
resulting

in the First and Second Sanctions,

therefore,

requirements and were neither arbitrary nor capricious.

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satisfied

minimum

due process

See Hill, 472 U.S. at 457 (concluding

that the "findings of the disciplinary board" that revoked the inmates' good time credits was not
"without support or otherwise arbitrary" where there was "some evidence to support the
findings").
Finally, the sanctions ultimately imposed were within the authorized range. The BOP has
regulations that identify prohibited acts by inmates.

Subsections

111 and 112, relevant here, bar the introduction or making of any alcohol or

intoxicants and the use of any alcohol or intoxicants, respectively.
both subsections
Accordingly,

are categorized

the conduct

as prohibited

is punishable

See 28 C.F.R.

S

promulgated

Id.

acts of the "greatest

by, among

other things,

541.3.

Acts prohibited under
severity level."
"(f]orfeit(ing]

Id.

and/or

withhold(ing] earned statutory good time or non-vested good conduct time (up to 100%) and/or
terminat(ing] or disallow(ing] extra good time." Id. Where Johnson received the due process to
which he was entitled and received punishment

in conformity with the table of penalties

authorized for these violations, see id., his due process claim fails.
IV.

Equal Protection
Johnson also raises an equal protection claim, alleging that the sanctions imposed were

excessive when compared to those imposed on other inmates. In his Reply, he references other
inmates who engaged in similar rule infractions, but who did not lose such large amounts of
good conduct time.
The Equal Protection Clause requires that "all persons similarly situated be treated alike."
City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). "To succeed on an equal

protection claim, a plaintiff must first demonstrate that he has been treated differently from
others with whom he is similarly situated and that the unequal treatment was the result of
intentional or purposeful discrimination."

Morrison

8

v. Garraghty,

239 F.3d 648, 654 (4th Cif.

2001).

Although Johnson claims that other inmates received lesser sanctions for similar

disciplinary infractions, he has failed to show that the other inmates were otherwise similarly
situated. For example, both of the inmates whose DHO reports were submitted by Johnson had
been charged with simple possession of an intoxicant.

Neither was, as Johnson was with the

First Sanction, charged with attempting to manufacture intoxicants, which understandably could
warrant more severe punishment.

Likewise, neither was caught, as Johnson was with the Second

Sanction, actually under the influence of an intoxicant.

Finally, the submitted records do not

show that either had, like Johnson, two similar violations within an approximately three-month
period.

Thus, the fact that other inmates received lesser sanctions for violations relating to

intoxicants does not provide a sufficient basis to support an equal protection claim. Accordingly,
the Court will deny the relief sought in the Petition.
V.

Certificate of Appealability
A certificate of appealability may issue if the petitioner has made a "substantial showing

of the denial of a constitutional right."

28 U.S.C. ~ 2253(c)(2).

When a district court rejects

constitutional claims on the merits, a petitioner may satisfy the standard by demonstrating that
"reasonable jurists would find the district court's

assessment

of the constitutional

claims

debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a petition is denied
on procedural grounds, the petitioner must show that reasonable jurists "would find it debatable
whether the petition states a valid claim of the denial of a constitutional right" and "whether the
district court was correct in its procedural ruling." Id. at 478.
Here, Johnson's claims are dismissed on the merits, and this Court finds that Johnson has
not made the requisite showing to warrant a certificate of appealability.
declines to issue a certificate of appealability.

The Court therefore

Johnson may still request that the United States

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-

~---~

--------------------------,

Court of Appeals for the Fourth Circuit issue such a certificate. See Lyons v. Lee, 316 F.3d 528,
532 (4th Cir. 2003) (considering whether to grant a certificate of appealability after the district
court declined to issue one).
CONCLUSION
For the foregoing reasons, the Court denies the requested relief and dismisses the Petition
for Writ of Habeas Corpus. A separate Order shall issue.

Date: July 11,2017

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