Rosa v. Grondolosky
Filing
26
Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER on Pending Motions and Petition for Writ of Habeas Corpus. (Dambrosio, Jolyne)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
AMAURYS ROSA,
Petitioner,
v.
JEFFREY GRONDOLSKY,
Warden, FPC Devens,
Respondent.
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CIVIL ACTION
NO. 13-10496-JGD
MEMORANDUM OF DECISION AND ORDER ON PETITIONER’S
MOTION FOR A PRELIMINARY INJUNCTION, RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT, AND THE PETITION FOR
WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241
July 9, 2013
DEIN, U.S.M.J.
I. INTRODUCTION
The petitioner, Amaurys Rosa (“Rosa” or “Petitioner”), is incarcerated at the
Federal Medical Center in Devens, Massachusetts (“FMC Devens”), where he is serving
a 60-month term of imprisonment for conspiracy to possess with intent to distribute
heroin. He has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241
(Docket No. 1) challenging both the procedural aspects of a prison disciplinary action, as
well as the sanctions imposed. Specifically, as the first grounds of his habeas petition,
Rosa contends that the Bureau of Prisons (“BOP”) violated federal regulations, and his
procedural due process rights, when he received an incident report more than 24 hours
after the staff learned of the incident giving rise to the disciplinary charge. He further
contends that the Discipline Hearing Officer (“DHO”) imposed an unlawful and arbitrary
and capricious penalty when he sanctioned Rosa to forfeit 90 days of non-vested good
conduct time, among other penalties.
BOP has established Rosa’s projected release date as October 19, 2013. Rosa has
filed a motion for a preliminary injunction pursuant to which he is seeking a return of the
90 days of non-vested good conduct time, which would move his projected release date to
July 22, 2013. (Docket No. 7). In response to the motion for a preliminary injunction, on
May 24, 2013, the Respondent filed a motion for summary judgment. (Docket No. 19).
The motion for summary judgment is supported by the Respondent’s memorandum
(Docket No. 20) and the declaration of Anthony Amico, Discipline Hearing Officer
(“DHO Decl.”) (Docket No. 20-1). In addition to the pleadings and documents filed by
Rosa in connection with his motion for a preliminary injunction (Docket Nos. 7, 18),
Rosa has filed a Response to the motion for summary judgment (Docket No. 22) and an
Ex Parte Declaration (“Rosa Decl.”) (Docket No. 25), which the court has accepted for
filing.
As a second ground for his habeas petition, Rosa contends that the BOP has
recalculated his halfway house date as a result of the disciplinary charges, and that he has
been wrongfully deprived of serving 10% of his sentence in a residential re-entry center
(“RRC”). In his petition, he contends that exhaustion of this claim would be futile as the
appeals process would not be completed before his sentence expired. (Docket No. 1 at
4). However, it appears that Rosa has at least commenced the administrative appeal
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process since his habeas petition was filed. (See Docket No. 18). His initial appeal has
been denied. (Id.).
The Respondent has not addressed this second ground in his motion for summary
judgment. Nevertheless, this court concludes that it is ripe for review as it has been fully
addressed by Rosa and the record is complete. Since the Respondent has not argued that
the matter is not exhausted, this court will address Rosa’s contention on the merits.
After careful consideration of the record and arguments, and for all the reasons
detailed herein, Petitioner’s motion for a preliminary injunction is denied and the
Respondent’s motion for summary judgment is allowed, as the penalties imposed for
Rosa’s disciplinary violation were permissible and did not violate his constitutional
rights. In addition, Rosa’s challenge to the calculation of his placement in the halfway
house is without merit. Therefore, the habeas petition will be dismissed.1
II. STATEMENT OF FACTS2
Events Leading to the Disciplinary Charge
Rosa is a federal inmate serving a 60-month term of imprisonment for conspiracy
to posses with the intent to distribute heroin, to be followed by a 5-year term of supervised release. (DHO Decl. ¶ 4). On August 13, 2012, at approximately 12:30 p.m., while
1
Rosa has also filed a Motion for Appointment of Counsel. (Docket No. 14). In light of
the extensive record filed by the parties, the fact that Rosa has adequately addressed the issues in
dispute, the fact that the issues raised are not novel, and the fact that time is of the essence in
addressing Rosa’s issues, the motion for appointment of counsel is denied.
2
The facts are undisputed unless otherwise indicated.
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conducting a random area search of Federal Prison Camp, Devens, Massachusetts (“FPC
Devens”), an officer discovered 12 cellular telephones bundled and wrapped together in
the ceiling rafters at the rear entrance of the Federal Prison Camp. (Id. ¶ 5). Consequently, FMC Devens’ Special Investigative Services Office (“SIS”) opened an investigation,
and the cell phones were sent off-site for analysis to the Federal Bureau of Prisons’ Cell
Phone Forensics Lab in the Intelligence and Counterterrorism branch of the Correctional
Programs Division. (Id. at ¶ 6). Pursuant to this investigation, forensic analysis
recovered data from the cell phones revealing that Rosa and others had likely used these
phones. (Id.).
Shortly thereafter, on September 7, 2012, Rosa was interviewed by SIS to further
determine the extent of his connection to the cell phones at issue. (Id. at ¶ 7). One of the
phone numbers found on one of the cell phones matched a number on Rosa’s approved
inmate telephone list, and only his list. (Id. ¶¶ 7-8). In addition, there were photographs
of Rosa on the phone date stamped June 3, 2012. (Id. ¶ 8). Nevertheless, according to
SIS, Rosa was unable to provide a rational explanation as to the connection between the
data on the phone and his contact information, and he was not willing to provide the
investigator with any information pertaining to the introduction and use of contraband
items found at FPC Devens. (Id. ¶ 7).
The Respondent contends that the SIS investigation concluded on October 2, 2012.
(Id. ¶ 8). Rosa disputes this, arguing that at the time of his interview on September 7,
2012, the “so-called evidence was already in staff’s possession[.]” (Pet. Resp. (Docket
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No. 22) ¶ 4). However, Rosa has not provided any facts challenging the Respondent’s
contention that the investigation continued, presumably without Rosa’s involvement and
on other fronts, until October 2, 2012.
On October 2, 2012, Rosa was issued an incident report charging him with
Possession, Manufacture, or Introduction of a Cell Phone, in violation of BOP Discipline
Code 108. (DHO Decl. ¶ 9; see Rosa Decl. at Ex. A). As per the Bureau of Prisons
Program Statement 5270.09 (“P.S. 5270.09”), entitled “Inmate Discipline Program,”3 and
28 C.F.R. § 541.7, the Unit Discipline Committee (“UDC”) Case Manager, A. Day,
reviewed the incident report, and noted that the UDC hearing was delayed from the date
of the incident due to the continuing SIS investigation. (DHO Decl. ¶ 10). The UDC
took a statement from Rosa, who stated, “No comment.” (Id.). Rosa’s charge constituted
a Greatest Severity Level Offense, as a result of which the UDC was required to refer the
incident report to the DHO for further review. (Id. ¶ 10 (citing, inter alia, P.S. 5270.09 at
9-10)). The UDC recommended at least a one year loss of visiting, telephone, and
commissary privileges and disallowance of good conduct time at the maximum allowable
amount if Rosa was found by the DHO to have committed the prohibited act. (DHO
Decl. ¶ 10).
Rosa was given notice of his hearing before the DHO, and signed a “Notice of
Discipline Hearing Before the DHO” and “Inmate Rights Discipline Hearing” forms on
3
A copy of P.S. 5270.09 is attached to Rosa’s motion for a preliminary injunction
(Docket No. 7) as Exhibit A.
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October 3, 2012, acknowledging his rights. (Id. & Ex. B). Specifically, but without
limitation, Rosa was advised of his right to have a full-time staff member represent him at
the hearing, and his conditional right to call witnesses. (Id.). Rosa declined staff
representation and chose not to call any witnesses on his behalf for the DHO hearing.
(Id.).
Rosa’s hearing was held by DHO Anthony Amico on October 18, 2012. (Id. ¶
11). According to DHO Amico, at the hearing Rosa was read his due process rights and
he informed the officer that he understood those rights. (Id.). At no point in time during
this hearing did Rosa raise any procedural issues, request witnesses or staff
representation, or present written documentation as evidence. (Id.). Rosa was informed
aloud of the incident report at which time Rosa opted to make a statement; according to
DHO Amico, Rosa stated, “I plead guilty to using the cell phone.” (Id.). Rosa now
challenges that statement, asserting that he “pled guilty to having his picture taken, but
stated that he never owned nor possessed a cell phone.” (See Rosa Decl. ¶ 4).4 Rosa
offers no explanation for the fact that a phone was used to call a number found only on
his approved phone list.
DHO Amico found Rosa guilty of Possession, Manufacture, or Introduction of a
Hazardous Tool (Cell Phone). (DHO Decl. ¶ 11). When making his decision, the DHO
4
Assuming that there is a substantive difference between the two statements, they do not
need to be reconciled at this time. The fact that a phone was used to call a number on Rosa’s
approved phone list and that Rosa allowed his picture to be taken with a phone is sufficient to
sustain the charges that he “possessed” the phone.
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took into account documentary evidence, including the reports generated by the SIS
investigation and the reporting officer’s written incident report, and Rosa’s admission that
he used the phone. (Id.). The DHO sanctioned Rosa by disallowing 41 days of good
conduct time, forfeiting 90 days of non-vested good conduct time, applying 60 days of
disciplinary segregation, a one year loss of visiting privileges, 6 months loss of telephone
privileges, and 6 months loss of commissary privileges. (Id.). As detailed below, Rosa
contends that these sanctions exceeded those available for this offense and were arbitrary
and capricious.
Subsequent Proceedings
On November 14, 2012, after learning of the DHO’s decision and the accompanying sanctions, Rosa appealed the decision to his Regional Director in Regional
Administrative Remedy Appeal No. 713391-R1. (Id. ¶ 12 & Ex. C). In his appeal, Rosa
claims that “there were multiple inmates that possessed or utilized a cellular device . . .
but the sanctions in my case, on the attach[ed] document, [are] more severe than those
other inmates, when we had the same charges, in the same facility, and the same DHO.”
(Id. at Ex. C). He further claimed that he was discriminated against and his Eighth
Amendment rights were violated by the cruel and unusual punishment given to him. (Id.)
The Regional Director, J. L. Norwood, responded on December 20, 2012, concluding as
follows:
Program Statement 5270.09, Inmate Discipline, authorizes the DHO
to impose sanctions he determines will have a significant impact
upon an inmate’s future behavior. Although inmates may have
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similar charges, an independent analysis is used to determine what
sanctions, if any, will be imposed in a disciplinary action.
The record in this case reflects substantial compliance with Program
Statement 5270.09, Inmate Discipline. The decision of the DHO
was based upon the greater weight of the evidence, and the sanctions
imposed were consistent with the severity level of the prohibited act.
The sanctions imposed, 60 days of disciplinary segregation, disallow
41 days of good conduct time, forfeit 90 days of non-vested good
conduct time, one year loss of visiting privileges, and six months
loss of telephone and commissary privileges, were not
disproportionate to your misconduct. Accordingly, your appeal is
denied.
(Id. at Ex. C).
Rosa then filed an appeal to the BOP’s Office of General Counsel in Central
Office Administrative Remedy Appeal No. 713391-A1 on January 7, 2013, in which he
claimed that while he had admitted to having his picture taken, he “never possessed or
used a cell phone in FPC Devens” and that he was denied access to the evidence that
supported the DHO’s decision because it was deemed confidential and could not be
released. (Id. at Ex. D). In addition, he reiterated his previous claim that others who had
committed the same offense had received lesser sanctions. (Id.). The appeal was
accepted on January 14, 2013, but Rosa did not receive a response from the Central
Office within the 40 days allotted for a response under 28 C.F.R. § 5402.18. (DHO Aff.
¶ 14).
Rosa followed these appeals with his Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2241, on March 4, 2013. (Docket No. 1). Therein, he claims that his due
process rights were violated by the arbitrary and capricious sanctions imposed upon him
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by the DHO in violation of Program Statement 5270.09 and 28 C.F.R. 541.4(b)(1)
(2013). (Id.). He also claims that the BOP acted in violation of the Second Chance Act,
18 U.S.C. § 3624 (2013), by not granting him the ability to carry out 10% of his sentence
in an RRC. (Id.).
Placement in a Residential Reentry Center
On or about March 13, 2013, Rosa filed a Request for Administrative Remedy
seeking to increase the number of days he was to spend in an RRC prior to his release.
(Docket No. 18). Originally it was determined that a 91 to 120-day RRC placement
would be “sufficient time to provide [him] the greatest likelihood of successful
reintegration into the community.” (Id. at 5/1/13 Regional Director decision). However,
after his conviction of the disciplinary charges stemming from the cell phone incident,
Rosa’s situation was re-evaluated and it was determined that “a 30 to 45-day placement in
a correctional component of RRC was more appropriate.” (Id.). Rosa appealed to the
Warden by filing a Request for Administrative Remedy. The Warden denied the Request
in a decision dated March 25, 2013. (Docket No. 18). Therein he wrote:
An investigation into your request revealed the following. It is the
goal of the Bureau of Prisons (BOP), to place inmates in RRC’s for
the amount of time necessary to provide the greatest likelihood of
successful re-entry into the community. Unit staff are making
inmates’ pre-release RRC placement decisions on an individual basis
based on the criteria found in 18 U.S.C. § 3612(b), which includes,
but is not limited to, the following: the inmate’s need for re-entry
services, the resources and ability of the RRC to meet the offender’s
needs, the nature and circumstances of the inmate’s offense, the
inmate’s history, any statement by the sentencing court regarding a
period of community confinement, any potential risks to public
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safety, and the need for the BOP to manage the inmate population in
a responsible manner.
(Id.). According to the Warden, considering all relevant factors, including the fact that
Rosa had been found guilty by the DHO for possessing a cell phone, and the fact that he
reported that he could reside with his fiancee upon release, the Community Corrections
Manager (“CCM”) determined that the more limited placement in an RRC was appropriate. (Id.). The Warden wrote further that “CCM’s make placement decisions based on
each inmate’s individual needs, along with the agency’s duty to use its limited resources
judiciously and to provide re-entry services to as many inmates as possible.” (Id.).
Rosa appealed the Warden’s decision to the Regional Director. In rejecting the
appeal in a decision dated May 1, 2013, the Regional Director wrote:
You were accepted and approved for RRC placement with a date of
September 17, 2013. It is proper for staff to assess sustained inmate
misconduct in reaching classification decisions, including RRC
placement. Accordingly, your appeal is denied.
(Docket 18). Rosa was further notified of his right to appeal to the General Counsel,
Federal Bureau of Prisons. (Id.). It is unclear whether Rosa did appeal further.5
Further Court Proceedings
5
Generally, a prisoner must exhaust his administrative remedies before filing a habeas
petition. There are rare circumstances where exhaustion is excused, such as where any attempt to
exhaust would be patently futile. See Iacaboni v. United States, 251 F. Supp. 2d 1015, ___ n.1
(D. Mass. 2003) (citing Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994)). Rosa has asserted his
belief that exhaustion would be futile, and the Respondent has not addressed this claim. Therefore, this court will assume that exhaustion is not an issue and will address Rosa’s claim on the
merits.
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As detailed above, on March 28, 2013, Rosa moved for a preliminary injunction.
(Docket No. 7). He argues that according to Program Statement 5270.09 and 28 C.F.R.
541.5(a), he was supposed to receive an incident report within 24 hours of the staff
becoming aware of his involvement in the incident and he did not receive the report in a
timely fashion. (Id.). He further contends that the DHO exceeded his discretionary
authority by taking away 90 days of his non-vested good conduct time credits, which
ultimately affects his release date. (Id.). The Respondent filed a motion for summary
judgment, addressing Rosa’s objections to the sanctions imposed. He has not addressed
Rosa’s contention that he was denied sufficient time in an RRC.
Additional facts will be discussed below where appropriate.
III. DISCUSSION
A.
Standard of Review
Preliminary Injunction
Rosa has moved for a preliminary injunction seeking to restore his 90 days of good
conduct time. To prevail on his claim for a preliminary injunction, Rosa “must establish
(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable
harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor,
and (4) that the injunction is in the public interest.” Peoples Fed. Sav. Bank v. People’s
United Bank, 672 F.3d 1, 9 (1st Cir. 2012) (quoting Voice of the Arab World, Inc. v.
MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (additional citations
omitted)). While all of these factors must be weighed, the most critical factor is the
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moving party’s likelihood of success on the merits. People’s Fed. Sav. Bank, 672 F.3d at
9. For the reasons detailed below, Rosa is not likely to prevail on the merits of his claim.
Therefore, his motion for a preliminary injunction will be denied.
Summary Judgment
The Respondent has moved for summary judgment on the issues raised in Ground
One of Rosa’s habeas petition, namely those relating to the sanctions imposed as a result
of the cell phone incident. Summary judgment is appropriate when the moving party
shows, based on the discovery and disclosure materials on file, and any affidavits, that
“there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “An issue is ‘genuine’ if it ‘may reasonably
be resolved in favor of either party.’” Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir.
2008) (quoting Garside v. Osco Drug Inc., 895 F.2d 46, 48 (1st Cir. 1990)). “A fact is
material only if it possesses the capacity to sway the outcome of the litigation under the
applicable law.” Vineberg, 548 F.3d at 56 (quotations, punctuation, and citations
omitted).
The moving party bears the initial burden of establishing that there is no genuine
issue of material fact. See Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st
Cir. 2010). If that burden is met, the opposing party can avoid summary judgment only
by providing properly supported evidence of disputed material facts that would require a
trial. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511
U.S. 1018, 114 S. Ct. 1398, 128 L. Ed. 2d 72 (1994). The court must view the record in
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the light most favorable to the non-moving party and indulge all reasonable inferences in
that party’s favor. See O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). “If, after
viewing the record in the non-moving party’s favor, the Court determines that no genuine
issue of material fact exists and the moving party is entitled to judgment as a matter of
law, summery judgment is appropriate.” Walsh v. Town of Lakeville, 431 F. Supp. 2d
134, 143 (D. Mass. 2006). Accordingly, “the nonmoving party ‘may not rest upon mere
allegation or denials of his pleading,’” but must set forth specific facts showing that there
is a genuine issue for trial. Leblanc, 6 F.3d 836 at 841 (quoting Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986)).
“Notwithstanding the liberality of this standard, the nonmovant cannot simply rest
on perfervid rhetoric and unsworn allegations.” Morris v. Gov’t Dev. Bank, 27 F.3d 746,
748 (1st Cir. 1994). “To defeat a motion for summary judgment, the nonmoving party is
required to produce ‘specific facts, in suitable evidentiary form, to . . . establish the
presence of a trial worthy issue . . . . [C]onclusory allegations, improbable inferences, and
unsupported speculation, are insufficient to establish a genuine dispute of fact.’” Furtado
v. Std. Parking Corp., 820 F. Supp. 2d 261, 269 (D. Mass. 2011) (citing Triangle Trading
Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1985) (internal citations and
quotations omitted).
B.
Timeliness of Notice
Rosa contends that his due process rights were violated when the DHO failed to
give him written notice of charges within 24 hours of the September 7, 2012 interview he
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underwent in connection with the cellular phone incident. Although Rosa is correct that
his due process rights are implicated in connection with a disciplinary proceeding, the
undisputed facts establish that the timing of the notice did not violate his constitutional
rights.
Supreme Court precedent has established that prisoners may “claim the protections
of the Due Process Clause. They may not be deprived of life, liberty, or property without
due process of law.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2974, 41
L. Ed. 2d 935, 952 (1974), and cases cited. Therefore, “due process requires procedural
protections before a prison inmate can be deprived of a protected liberty interest in good
time credits.” Superintendent, MCI-Walpole v. Hill, 472 U.S. 445, 453, 105 S. Ct. 2768,
2773, 86 L. Ed. 2d 356 (1985). To satisfy this due process right, an “inmate must
receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when
consistent with institutional safety and correctional goals, to call witnesses and present
documentary evidence in his defense; and (3) a written statement by the factfinder of the
evidence relied on and the reasons for the disciplinary action.” Id. at 454, 105 S. Ct. at
2773 (citing Wolff, 418 U.S. at 563-67, 94 S. Ct. at 2978-80). Rosa does not assert that
he did not receive these procedural protections, and the undisputed facts establish that the
BOP satisfied these procedural due process requirements. Consequently, Rosa has failed
to establish a violation of his constitutional rights.
Rosa’s claim of untimely notice is based on the BOP regulation that provides as
follows:
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The discipline process starts when staff witness or reasonably
believe that you committed a prohibited act. A staff member will
issue you an incident report describing the incident and the
prohibited act(s) you are charged with committing. You will
ordinarily receive the incident report within 24 hours of staff
becoming aware of your involvement in the incident.
28 C.F.R. § 541.5(a) (2013). Thus, Rosa contends, he should have been provided with
written notice of the incident within 24 hours of his interview on September 7, 2012.
However, such a notice was neither factually nor legally required.
As an initial matter, Rosa has not put forth any evidence challenging the BOP’s
contention that its investigation was not concluded until October 2, 2012, at which time
staff was prepared to charge Rosa with having been involved in the incident. Therefore,
the notice he received on that date was timely. Moreover, even assuming that he should
have been charged on September 7, 2012, the law is clear that the delay did not violate
Rosa’s constitutional rights.
A critical purpose of the notice requirement “is to give the charged party a chance
to marshal the facts in his defense and to clarify what the charges are, in fact.” Wolff,
418 U.S. at 564, 94 S. Ct. at 2978. Early notice while an investigation is ongoing does
not satisfy that purpose, since further investigation “may reshape the nature of the charges
or the evidence relied upon.” Id. at 564, 94 S. Ct. at 2979. Moreover, “staff must witness
or reasonably believe prohibited conduct occurred before charging an inmate. 28 C.F.R.
541.5(a). Staff cannot be expected to provide notice of charges prior to establishing the
nature and extent of the conduct, particularly when the charges may be based on cumula-
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tive conduct over a period of time.” Branch v. Thomas, No. 3:11-cv-01319-SI, 2012 WL
5830396, at *4 (D. Ore. Nov. 15, 2012) (emphasis in original). Therefore, while the
Supreme Court has held that procedural due process requires that an inmate be given at
least 24 hours to prepare for his or her hearing on a disciplinary charge, see Wolff, 418
U.S. at 564, 94 S. Ct. at 2979, there is no constitutional requirement that a prisoner be
given notice within 24 hours of the staff believing that a prisoner may be charged in the
future with a disciplinary infraction. See Nerlich v. Quintana, Civ. No. 12-CV-325-JMH,
2013 WL 875909, at *5 (E.D. Ky Mar. 7, 2013) (even assuming, arguendo, that the BOP
regulation “required delivery of an incident report within 24 hours in all instances, the
Constitution does not, and thus a failure to adhere to the regulation does not create a
claim of constitutional dimension.”); Wallace v. Fed. Det. Ctr., No. 13-1013, 2013 WL
2420886, at *2 (3rd Cir. June 5, 2013) (no constitutional right to issuance of a charge
within 24 hours of an incident, “Wolff only requires that an inmate receive written notice
of the charges 24 hours before a hearing[.]”).
Moreover, even the language of the BOP regulation does not support Rosa’s
contention that he was entitled to have received a written notice on September 7, 2012.
28 C.F.R. § 541.5(a) provides that an inmate “will ordinarily receive the incident report
within 24 hours of staff becoming aware of your involvement in the incident.” (Emphasis
added). As courts have recognized, “[t]his language is not mandatory, and therefore
cannot create an enforceable right.” Nerlich v. Quintana, 2013 WL 875909 at *5.
Rather, “[i]nclusion of ‘ordinarily’ as a modifier for ‘provided within 24 hours’ provides
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a flexibility that is essential in the prison context, where investigation of suspicious
activity may be required to define the scope of the activity and to identify all
participants.” Branch v. Thomas, 2012 WL 5830396 at *4. It is undisputed that Rosa
was provided with advanced written notice of the charge on October 2, 2012, he had
more than 24 hours to prepare for his hearing, he was given the opportunity to call
witnesses to speak in his defense during his October 18, 2012 hearing, and he was
furnished with a written statement setting forth the specific evidence relied upon to
support the fact finder’s ultimate finding. (See DHO Decl. ¶¶ 5 & 8). Therefore, his
claim that his due process rights were violated must fail.
C.
Loss of Good Conduct Time
Rosa contends that his loss of good conduct time credits exceeded the amounts
allowed by the applicable regulations. The DHO sanctioned Rosa to both 41 days
disallowance of good conduct time, and 90 days forfeiture of non-vested good conduct
time. Rosa contends that the DHO was permitted “to take 41 days ONLY OR disallow
up to 100% of the non-vested good conduct time” in accordance with P.S. 5270.09. (See
Mot. Prelim. Inj. (Docket No. 7) at ¶ 11). Moreover, he contends that 100% of the nonvested good conduct time cannot exceed the maximum amount that an inmate earns in
one year, which is 54 days. (Id. at ¶¶ 12-13). These arguments are not supported by the
applicable regulations.
Pursuant to 28 C.F.R. § 541.8(g), for the Greatest Severity Level Offenses the
DHO has the authority to “impose any of the available sanctions in Tables 1 and 2.” 28
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C.F.R. § 541.8(g) (emphasis added).6 Table 1, which is found at the end of P.S. 5270.09,
provides for both the loss of earned and unearned good conduct time. As Table 1
provides:
B.
Forfeit and/or withhold earned statutory good time or non-vested
good conduct time (up to 100%) and/or terminate or disallow extra
good time ....
B.1.
Disallow ordinarily between 50% and 75% (27-41 days) of good conduct
time credit available for year ....
P.S. 5270.09 further explains that Sanction B.1 will be mandatory for certain inmates
who meet certain criteria (such as Rosa) and who commit Greatest Severity Level
Offenses.7 In addition, P.S. 5270.09 makes it clear that the “DHO may impose any
available sanctions (A through M) in addition to sanctions A through E.” (P.S. 5270.09
at 9-10 (emphasis added)). In the instant case, the DHO imposed sanctions B, B.1, C
(disciplinary segregation) and F (loss of privileges (e.g., visiting, telephone, commissary,
6
Table 2 provides “additional available sanctions for repeated prohibited acts within the
same severity level.” The BOP did not sanction Rosa under Table 2 but, rather, imposed multiple
sanctions under Table 1. Therefore, Rosa’s objection to the Respondent’s use of Table 2
sanctions is not supported by the record and will not be discussed further. (See Rosa Resp.
(Docket No. 22) at ¶ 7).
7
This is consistent with 28 C.F.R. § 541.4, which makes it mandatory for certain inmates
(such as Rosa) who are convicted of Greatest Severity Level Offenses to “lose at least 41 days, or
75% of available credit if less than 54 days are available for the prorated period, for each act
committed.” 28 C.F.R. § 541.4(b)(2). As quoted above from Table 1, § B.1, the BOP has
determined that the “prorated period” is a year. Rosa does not deny that he was entitled to 54
days of good conduct time in the year the sanction was imposed. Therefore, 41 days (75% of 54
= 41) was appropriate. Rosa has put forth an argument concerning how to prorate the period if
there are multiple infractions in any given year. (See Rosa Resp. (Docket No. 22) at ¶ 9). Since
factually this does not appear to be his situation, his calculations will not be addressed further.
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movies, recreation)) from Table 1. (DHO Decl. ¶ 14). This imposition of multiple
sanctions from Table 1 is authorized by BOP regulations. See, e.g., Wallace v. Ebbert,
No. 12-3097, 505 Fed. Appx. 124, 125, 2012 WL 5861760 (3d Cir. Nov. 20, 2012)
(unpub. op.) (it was permissible for DHO to forfeit both non-vested good conduct time up
to 100% as well disallowing earned good conduct time).
Nor is there merit to Rosa’s contention that the forfeiture of unearned good time
credit is limited to 54 days. Rather, the quoted language of sanction “B” is clear that
there is no such limitation on non-vested good conduct time — it can be up to 100% of
the potentially available credit given the sentence imposed. Courts have so construed the
regulation. See id. (in addition to allowing loss of good time credit, court affirms DHO’s
penalty of forfeiture of 458 days of non-vested good time credit). The limit on the
number of days available for good time credit each year is only relevant to the mandatory
forfeiture found in 28 C.F.R. § 541.4. See note 7, supra. The sanctions imposed on Rosa
were permissible and were not arbitrary and capricious.
D.
Unequal Treatment
Rosa has asserted that his penalty was more severe than others involved in the
same offense. However, the penalty imposed on him was within permissible parameters,
and, as stated in P.S. 5270.09, it was appropriate for “[s]taff [to] take disciplinary action
at such times and to the degree necessary to regulate an inmate’s behavior within Bureau
rules and institution guidelines[.]” (P.S. 5270.09 at 3). As detailed above, the Regional
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Director expressly addressed Rosa’s claim of unequal treatment, and concluded that it
lacked merit. There is no basis for this court to reach a different conclusion.
Rosa contends that he has been denied equal treatment under the law. However,
he has failed to establish a constitutional violation.
Equal protection means that similarly situated persons are to receive
substantially similar treatment from their government. To establish
an equal protection violation, a plaintiff must introduce sufficient
evidence from which a jury could reasonably conclude that,
compared with others similarly situated, the plaintiff was treated
differently because of an improper consideration, such as his
religion. Equal protection does not, however, require prison staff to
treat all inmate groups the same when differentiation is necessary to
avoid a threat to prison security.
Kuperman v. Wrenn, 645 F.3d 69, 77-78 (1st Cir. 2011) (internal quotations and citations
omitted).
In the instant case, Rosa has not identified any “improper consideration” which
may have been a factor in his allegedly unequal treatment. Moreover, the First Circuit
has recognized that there exists a “broad exercise of discretion by prison authorities to
take reasonable and necessary action, including punishment, to enforce the prison
disciplinary regime . . . .” Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d 315, 318 (1st
Cir. 1995). Under such circumstances, “disciplinary matters are private and addressed on
a case-by-case basis[,]” as a result of which “circumstances surrounding one inmate’s
discipline cannot be compared to the discipline imposed on another inmate since each
case stands on its own merits.” Gonzalez v. Rushing, No. 4:12CV0212, 2012 WL
1970054, at *6 (N.D. Ohio May 30 2012) (unpub. op.) (rejecting equal protection
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challenge to argument that one inmate’s sanction was more severe than another’s for the
same offense). In the instant case, Rosa’s punishment fell within acceptable parameters
and prison officials considered his personal circumstances in determining the appropriate
sanction. In light of “the need to accord prison officials considerable latitude in matters
of internal discipline,” this court “cannot say that the sanctions imposed, in light of the
seriousness of the violations, were so extreme as to be unreasonable by the constitutional
standard.” Collazo-Leon, 51 F.3d at 318-19. Nor do the individualized sanctions
constitute a violation of Rosa’s equal protection rights.
D.
Residential Reentry Center Placement
In his habeas petition, Rosa claims that the BOP acted in violation of the Second
Chance Act, 18 U.S.C. § 3624, by not granting him the ability to carry out 10% of his
sentence in an RRC. Specifically, 18 U.S.C. § 3624 provides in relevant part:
(c)
Prerelease custody.-(1) In general.-- The Director of the Bureau of Prisons shall, to the
extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed
12 months), under conditions that will afford that prisoner a
reasonable opportunity to adjust to and prepare for the reentry of that
prisoner into the community. Such conditions may include a
community correctional facility.
18 U.S.C. § 3624(c)(1). According to BOP regulations:
Inmates will be considered for pre-release community confinement
in a manner consistent with 18 U.S.C. section 3621(b), determined
on an individual basis, and of sufficient duration to provide the
greatest likelihood of successful reintegration in the community
within the time-frames set forth in this part.
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28 C.F.R. § 570.22. In turn, 18 U.S.C. § 3621(b) requires that the BOP consider the
following factors in designating the place of a prisoner’s imprisonment: “(1) the resources
of the facility contemplated; (2) the nature and circumstances of the offense; (3) the
history and characteristics of the prisoner; (4) any statement by the court that imposed the
sentence . . . ; and (5) any pertinent policy statement issued by the Sentencing Commission[.]” The record is clear that the BOP considered these relevant factors. (See Docket
No. 18 at Response to Request) (in determining the length of Rosa’s placement in RRC,
the BOP considered “the inmate’s need for re-entry services, the resources and ability of
the RRC to meet the offender’s needs, the nature and circumstance of the inmate’s
offense, the inmate’s history, any statements . . . any potential risks . . . and the need for
the BOP to manage the inmate population in a responsible manner.”).
Rosa objects to the fact that his time in the RRC was reduced due to his
disciplinary conviction.8 However, he has not raised a cognizable constitutional claim.
“There is no constitutional or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal
& Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104, 60 L. Ed. 2d 668 (1979). Thus,
Rosa’s “placement in a halfway house alone does not give rise to a protected liberty
8
It is unclear on what Rosa bases his claim of entitlement to spend 10% of his sentence in
an RRC. 18 U.S.C. § 3624(c)(2) does provide that “this subsection may be used to place a
prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that
prisoner or 6 months.” However, there is no evidence that home confinement was an option in
Rosa’s case. In any event, the percentage is not critical to this court’s analysis and this court will
simply address Rosa’s challenge as being generally to the reduction in the amount of time spent in
the RRC.
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interest” and his objection to his placement does not state a due process violation.
Rodriguez v. Wiley, No. 08-cv-008830WYD, 2009 WL 2868838, at *2 (D. Colo. Sept. 3,
2009). In addition, “[t]he Second Chance Act does not guarantee a one-year RRC
placement, but ‘only directs the Bureau of Prisons to consider placing an inmate in a
RRC for up to the final twelve months of his or her sentence.” Lawbaugh v. Zickefoose,
No. 10-3649 (RMB), 2011 WL 677328, at *5 (D.N.J. Feb. 16, 2011) (citations omitted).
Consequently, the fact “[t]hat [Rosa] disagrees with the Bureau of Prison’s recommendation as to [his] placement in a residential reentry center does not establish a constitutional
violation, as nothing in the Second Chance Act or § 3621(b) entitles [Rosa] or any other
prisoner to any guaranteed placement in a residential reentry center. ‘The duration of
[residential reentry center] placement is a matter as to which the [Bureau of Prisons]
retains discretionary authority.’” Creager v. Chapman, No. 4:09-CV-713-A, 2010 WL
1062610, at *3 (N. D. Tex. Mar. 22, 2010) (alterations in original).
For these reasons, Rosa’s challenge in his habeas petition to the reduction in
amount of time to which he was assigned to the RRC must fail.
IV. CONCLUSION
For the reasons detailed herein, Rosa’s motions for a preliminary injunction
(Docket No. 7) and for appointment of counsel (Docket No. 14) are DENIED, the
Respondent’s motion for summary judgment (Docket No. 19) is ALLOWED, and Rosa’s
habeas petition (Docket No. 1) is DISMISSED.
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/ s / Judith Gail Dein
Judith Gail Dein
U.S. Magistrate Judge
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