MANFREDI v. UNITED STATES OF AMERICA et al
Filing
13
OPINION FILED. Signed by Judge Renee Marie Bumb on 11/20/12. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEITH MANFREDI,
Petitioner,
v.
UNITED STATES OF AMERICA,
et al.,
Respondent.
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Civil No.: 12-1905 (RMB)
O P I N I O N
APPEARANCES:
KEITH MANFREDI, Petitioner Pro Se
#75325-053
F.C.I. Fort Dix
East P.O. Box 2000
Fort Dix, NJ 08640
JOHN ANDREW RUYMANN, AUSA
OFFICE OF THE U.S. ATTORNEY
402 East State Street, Suite 430
Trenton, New Jersey 08608
Counsel for Respondents
BUMB, District Judge
On or about March 28, 2012, petitioner, Keith Manfredi
(“Petitioner”), filed this petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2241, in which he challenges sanctions
imposed as the result of a prison disciplinary infraction.
Petitioner asks the Court to expunge the disciplinary action
imposed against petitioner.
The named respondents are the United
States of America, the United States Justice Department and the
Federal Bureau of Prisons (“BOP”)(hereinafter, the “Government”).
Respondent answered the petition on August 13, 2012, and provided
a copy of the pertinent administrative record.
10).
(Docket Entry No.
Petitioner filed a reply/traverse to the Government’s
answer on September 10, 2012.
I.
(Docket entry no 11).
BACKGROUND
Petitioner challenges an October 7, 2011 prison disciplinary
finding, which resulted in the loss of good conduct time (“GCT”)
and visitation privileges.
Petitioner seeks his immediate
release from prison.
Petitioner is presently serving a 46-month prison sentence
imposed by the United States District Court for the Eastern
District of New York, on April 15, 2009, following his conviction
for distribution and possession with intent to distribute
marijuana, in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(D).
922(g)(1).
Petitioner’s projected release date is December 27,
2012, assuming he receives all good conduct time (“GCT”)
available to him under 18 U.S.C. § 3624(b).
(See Declaration of
Tara Moran, Document 1a).
The incident at issue in this habeas petition involves an
Incident Report, dated August 25, 2011, charging Petitioner with
the Use of Any Narcotics, Drugs or Alcohol, in violation of Code
112, because Petitioner’s urine sample, taken on August 17, 2011,
tested positive for cocaine.
(Moran Decl., Doc. 2b).
2
At the
time of the drug testing, Petitioner was assigned to the Brooklyn
House, a BOP contracted Residential Re-Entry Center (“RRC”).
On
August 26, 2011, Petitioner was arrested at the halfway house by
U.S. Marshals, and was taken to the Metropolitan Detention Center
in Brooklyn, New York (“MDC Brooklyn”).
The reporting employee, Windy Martinez, stated the following
in the description section of the Incident Report:
On Thursday, August 25, 2011, at approximately 10:00 am, a
positive urinalysis result was printed by the undersigned
from the Laboratory Corporation of America website. The
urine sample for Chain of Custody # 0442554173, taken on
August 17, 2011, tested positive for Cocaine (Metab.)
Further investigation indicates that the Chain of Custody ID
# 0442554173 belongs to resident Manfredi, Keith reg. #
75325-053.
Upon reviewing resident Manfredi, Keith reg. # 75325-053
Chain of Custody ID # 0442554173, indicates that there were
no medications listed that would test positive for Cocaine
(Metab.)
(Moran Decl., Doc. 2b, Incident Report at ¶ 11).
The Incident Report also indicates that the matter was
investigated on September 30, 2011.
Specifically, the Incident
Report shows that Petitioner was advised of his rights during the
disciplinary process on September 30, 2011, at 5:50 p.m.
Incident Report at ¶ 23).
(Id.,
The Incident Report further provides
Petitioner’s statement to the investigating staff as follows:
Resident Manfredi, Keith Reg. # 75325-053 stated that he did
not ingest, snort, smoke, or inject cocaine. Also resident
stated that he was on multiple supplements such as Creatine,
protein, amino acid, testosterone booster, HGH Booster, fat
burner, multi vitamin. Inmate also took casein powder at
3
night and creatic. Inmate states he unknowingly may have
handled cash that had cocaine on the money. Resident also
stated that prior to 8/17/11 and on that day he handled
$18,000.00 in cash from his employer who sells kitchen
cabinets.
(Id., Incident Report at ¶ 24).
The following documents were attached to the Incident Report
for purposes of the investigation:
Attached is a chain of custody form # 0443554173 for
resident Manfredi, Keith Reg # 75325-053, dated 8/17/11. A
positive test result for cocaine for chain of custody form
# 0442554173. A copy of the orientation checklist signed by
Manfredi, Keith Reg # 75323-053 on 8/10/11. Resident
handbook pages 36/37. The resident produced evidence that
included invoices numbered 4, 5, 6, 7, 8 & 9, internet
information from articles US bills can cause false positives
for cocaine on drug test, study; cocaine traces found on
100% of paper money tested in Detroit, and Article from
Snoops.Com, Titled Cocaine on Money & A Letter from owner of
Kitchen & Bathroom Emporium. Resident also submitted an
article Can Cocaine get into your urine by touching it?
Yahoo Answers (2008-05-16-23, 09:03 0000).
(Id., Incident report at ¶ 25).
The investigating staff concluded, based on the weight of
the evidence, that the prohibited act was committed and referred
the incident to the Center Discipline Committee (“CDC”) at the
Metropolitan Detention Center (“MDC”) Brooklyn.
Report at ¶¶ 26, 27).
(Id., Incident
The investigation was completed on
September 30, 2011 at 6:05 p.m.
(Id., Incident Report at page
3).
On September 30, 2011, Petitioner was given a Notice of CDC
Hearing, which advised him that he was charged with “Use of Any
Narcotics, Drugs, Alcohol,” a code 112 violation, and that the
4
charge was referred to the CDC for a hearing to be held on
October 3, 2011, at 6:00 p.m., at the MDC Brooklyn.
The Notice
informed Petitioner that he was entitled to a staff
representative at the hearing, and that he had the right to call
witnesses at the hearing.
Petitioner signed the Notice of CDC
Hearing on September 30, 2011, indicating that he requested Ms.
Robin Causey, the RRC Director, to be his staff representative
and that he did not request any witnesses at the hearing.
Decl., Doc. 2c (Notice of CDC Hearing)).
(Moran
On September 30, 2011,
Petitioner also received a notice advising him of his rights at a
CDC hearing.
(Moran Decl., Doc. 2d).
On October 3, 2011, a CDC hearing was conducted at which
Petitioner was given a copy of the Incident Report.
Decl., Docs. 2a and 2b).
(Moran
The CDC Report noted that Petitioner
had invoked his right to a staff representative and Ms. Causey
appeared for him in that capacity; that Petitioner had been
advised of his rights before the CDC on September 30, 2011; and
that Petitioner denied the charges and told the CDC that he did
not use cocaine and that it was possible that the supplements he
took caused the positive results.
The CDC Report also showed
that Petitioner did not request any witnesses.
Documentary
evidence reviewed by the CDC included the Incident Report and
investigation; the “Laboratory Test Result, Chain of Custody #
0442554173, Brooklyn House Intake Process Orientation Checklist,
5
Brooklyn House Handbook pages # 36 and # 37, and miscellaneous
papers that resident Manfredi submitted.”
(Moran Decl., Doc. 2e,
CDC Report at §§ I, II and III A through D).
The CDC found that the act was committed as charged, and
stated the specific evidence relied upon to support its finding,
namely, the positive urinalysis result and the absence of
medications that would cause a positive test for Cocaine (Metab).
(Moran Decl., Doc. 2e, CDC Report at § V).
Accordingly, the CDC
recommended that Petitioner be sanctioned with the loss of 50% of
his good conduct time (“GCT”) and completion of his sentence at a
more secure facility with the possibility of halfway house
placement.
(Id., CDC Report at § VI).
In accordance with BOP policy, the CDC referred the matter
to the Discipline Hearing Officer (“DHO”) for MDC Brooklyn.
BOP Program Statement 7300.09, §§ 5.7 and 5.8.
See
In a letter dated
October 4, 2011, from CDC Chairperson, Rafael Nazano, to the DHO
at MDC Brooklyn, Nazano wrote:
The CDC procedure for resident Manfredi, Keith reg. # 75325053 was not completed by the prescribed time frame for the
following reasons:
On September 8, 2011, the CDC procedure for resident
Manfredi was completed at MDC Brooklyn. However, due to
discrepancies in the CDC report of resident Manfredi, the
CCM office instructed Brooklyn House staff that CDC process
is required to complete resident Manfredi’s CDC procedure.
On September 30, 2011, the investigation for resident
Manfredi’s incident report was completed at MDC Brooklyn.
During the investigation, resident Manfredi requested the
6
Facility Director, Ms. Causey to be his staff representative
at the hearing.
On Monday, October 3, 2011, Ms. Causey and I went to MDC
Brooklyn to conduct the CDC hearing. During the CDC
hearing, it was discovered that the Incident Report was not
delivered to resident Manfredi; therefore, on October 3rd,
the Incident Report was delivered to resident Manfredi and
the CDC hearing was conducted and completed.
(Moran Decl., Doc. 2a).
On October 7, 2011, the DHO at MDC Brooklyn reviewed the CDC
Hearing Report and imposed the following sanctions: (1) 40 days
loss of GCT; (2) 80 days loss of not vested GCT; (3) one year
loss of visitation privileges from October 7, 2011 through
October 6, 2012; and (4) one year visitation privilege restricted
to immediate family only from October 7, 2011 through October 6,
2012.
These sanctions were documented at the bottom of the CDC
Report in Section X, and Petitioner was advised of his appeal
rights in Section VIII of the CDC Report.
(Moran Decl., Doc.
2e).
Petitioner appealed the disciplinary findings of the
CDC/DHO, and his administrative appeals were denied at both the
Regional and Central Offices’ level of review.
It appears that
the Regional Office denied Petitioner’s appeal on December 14,
2011, and the Central Office denied Petitioner’s administrative
appeal on June 27, 2012.
(Moran Decl. at ¶¶ 4, 5, and Doc. 1b).
The Government did not provide copies of the Regional and Central
Office decisions on Petitioner’s administrative appeal.
7
Petitioner filed this habeas action on or about March 28,
2012.
In his petition, Petitioner alleges that he was denied due
process in his disciplinary proceedings.
Namely, Petitioner
alleges that he did not receive advance written notice of the
charges against him before his October 3, 2011 CDC hearing.
Specifically, Petitioner received a copy of the Incident Report
that day.
He further alleges that after he was taken to the MDC
Brooklyn, on September 7, 2011, he spoke with his counselor and
was informed that there was no incident report on Petitioner in
the computer.
(Petition at pp. 5-8).
Petitioner also alleges that he was denied his right to
present documentary evidence at the hearing, such as an
independent testing of his urine sample.
In addition, Petitioner
asked to submit papers he had detailing that the nutritional
supplements he was taking can cause a false positive result on a
drug test, but he was not permitted to retrieve those documents,
having been told by the CDC Chair Person, Mr. Nazano, that he did
not need them.
(Pet., pp. 8, 18-19).
Petitioner further argues
that only the DHO, not the CDC, can impose sanctions involving
the loss of GCT.
He contends that the CDC’s finding of
Petitioner’s guilt was predetermined as evidenced by a completed
CDC Report at his October 3, 2011 hearing.
He also disputes that
he asked Ms. Causey to be his staff representative at the CDC
hearing.
Instead, Petitioner alleges that he was told he could
8
have two witnesses, and he chose Ms. Causey and Mr. Cruz, a
security guard at the halfway house.
He alleges that Ms. Causey
did not act as his advocate at the hearing.
(Pet., pp. 9, 13-14,
16-17).
In sum, Petitioner asserts that he was denied due process
because he was not given 24 hour notice of the Incident Report
before his CDC hearing, he was denied the right to call witnesses
and present documentary evidence, his hearing was predetermined,
and the sanctions were excessive.
The Government agrees that Petitioner has exhausted his
administrative remedies in this case.
II.
A.
DISCUSSION
Standard of Review
Petitioner seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2241(c)(3).1
That section states that the writ will not
be extended to a prisoner unless “he is in custody in violation
of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3).
1
United States Code Title 28, Section 2241, provides in
pertinent part:
(a) Writs of habeas corpus may be granted by the
district courts within their respective jurisdictions
(c) The writ of habeas corpus shall not extend to a
prisoner unless(3) He is in custody in violation
of the Constitution or laws or treaties of the United
States.
9
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
See Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972).
A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See
Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.
Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United
States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert.
denied, 399 U.S. 912 (1970).
B.
Applicable Regulations
The Federal Bureau of Prisons (“BOP”) has specific
guidelines for inmate disciplinary procedures, which are codified
at 28 C.F.R. § 541.10 et seq.
Prohibited acts are categorized
according to the severity of the conduct.
Code Level 100s are
deemed the “Greatest”, code level 200s as “High”, and proceeding
to 400 level codes as “Low Moderate.”
The Prohibited Acts Code
and Disciplinary Severity Scale is set forth at 28 C.F.R. §
541.13 Tables 3-5.
Because Petitioner was a resident at a halfway house at the
time of the incident, BOP Program Statement 7300.9 governs
disciplinary proceedings in this instance, specifically Sections
5.7 and 5.8.
Section 5.7 applies to all inmates in contract
facilities, which are required by the terms of their contract to
use a discipline system in which a BOP DHO takes final action.
10
Table 3 “Prohibited Acts and Disciplinary Scale” in the BOP
Program Statement on Inmate Discipline and Special Housing Units,
as set forth above, are used in the community corrections
disciplinary process.
Further, this BOP Program Statement
requires community corrections facilities to establish internal
disciplinary procedures that comply with the due process mandates
fixed in Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
Generally, the procedures of the CDC follow those procedures
as set forth in BOP Program Statement 5270.09, Inmate Discipline.
Inmates cited for disciplinary infractions are entitled to
receive a hearing before the center’s disciplinary committee,
which adjudicates the alleged violation, and submits a
comprehensive hearing packet, along with a recommended
disposition, to the DHO.
The DHO, in turn, reviews the CDC
hearing materials to ensure that due process requirements have
been met, and to determine a final sanction for any infractions
found to have been committed as supported by the evidence.
After
conducting this review, the DHO then makes a final decision
concerning the sanction to be imposed against the inmate.
See
Sierra v. Scism, 2010 WL 5553955 at *2 (M.D.Pa. Dec. 14, 2010).
At issue in this action, due process procedures for CDC
hearings should include the following: (a) 24-hour advance
written notice of charge before inmate’s initial appearance; (b)
an inmate shall be provided a staff representative at his/her
11
hearing, if so desired; (c) an inmate is entitled to make a
statement and to present documentary evidence at the hearing; the
inmate may also call witnesses to testify on his behalf; and (d)
the inmate is entitled to be present throughout the hearing.
Finally, a written copy of the DHO’s decision and disposition
must be provided to the inmate ordinarily within 10 days.2
These procedures are intended to meet or exceed the due
process requirements prescribed by Wolff v. McDonnell, 418 U.S.
539 (1974).
See Von Kahl v. Brennan, 855 F. Supp. 1413, 1418
(M.D. Pa. 1994).
2
These procedures track more specific regulations
governing DHO hearing procedures, which are set forth at
§ 541.17. These procedures require the following: (a) 24-hour
advance written notice of charge before inmate’s initial
appearance before the DHO; this right may be waived, § 541.17(a);
(b) an inmate shall be provided a staff representative at the DHO
hearing, if so desired, § 541.17(b); (c) an inmate is entitled to
make a statement and to present documentary evidence at the DHO
hearing; the inmate may also call witnesses to testify on his
behalf, but may not himself question the witnesses, § 541.17(c);
(d) the inmate is entitled to be present throughout the hearing,
except during a period of deliberation or when institutional
security would be jeopardized, § 541.17(d). The DHO shall
prepare a record of the proceedings that documents the advisement
of the inmate’s rights, the DHO’s findings, the DHO’s decision,
the specific evidence relied upon by the DHO, and a brief
statement of the reasons for imposition of sanctions. 28 C.F.R.
§ 541.17(g). A written copy of the DHO’s decision and
disposition must be provided to the inmate ordinarily within 10
days. Id.
12
C.
Merits of Petitioner’s Claims
1.
There Was No Denial of Procedural Due Process
The Due Process Clause of the Fifth or Fourteenth Amendments
provides that liberty interests of a constitutional dimension may
not be rescinded without certain procedural protections.
CONST. amend. XIV.
U.S.
In Wolff v. McDonnell, supra, the Supreme
Court set forth the requirements of due process in prison
disciplinary hearings.
An inmate is entitled to (1) written
notice of the charges and no less than 24 hours to marshal the
facts and prepare a defense for an appearance at the disciplinary
hearing; (2) a written statement by the fact finder as to the
evidence relied on and the reasons for the disciplinary action;
and (3) an opportunity "to call witnesses and present documentary
evidence in his defense when to do so will not be unduly
hazardous to institutional safety or correctional goals."
418 U.S. at 563-71.
Wolff,
An inmate is also entitled to an inmate
representative in some cases, and a written decision by the
factfinder as to evidence relied upon and findings.
See Von
Kahl, 855 F. Supp. at 1418 (citing Wolff, 418 U.S. at 563-72).
However, in Wolff, the Supreme Court held that, while prisoners
retain certain basic constitutional rights, including procedural
due process protections, prison disciplinary hearings are not
part of criminal prosecution, and an inmate’s rights at such
hearings may be curtailed by the demands and realities of the
13
prison environment.
Id. at 556-57; Young v. Kann, 926 F.2d 1396,
1399 (3d Cir. 1991).
The first due process violation asserted by Petitioner is
that he did not receive written notice of the disciplinary
charges at least 24 hours before his hearing, and in fact,
received his Incident Report on October 3, 2011, the very day of
his CDC hearing.
The Government responds that Petitioner was
well familiar with the charge against him, having been provided
with an executed Notice of Center Discipline Committee hearing
form on September 30, 2011.
Specifically, this notice informed
Petitioner of the violation charged against him, the date of the
offense and the date, time and location of his CDC hearing.
This Court finds no due process violation with respect to
notice of the charges against him before his October 3, 2011
hearing.
Petitioner received notice of the charge against him on
September 30, 2011, and he was present at the September 30, 2011
investigation of the charges.
Thus, it can not be said that
Petitioner was uninformed or unprepared to address the charges
against him when he appeared for his CDC hearing on October 3,
2011.
Moreover, as the Government correctly argues, Petitioner
must show that he was prejudiced by not receiving the incident
report within 24 hours, and he has not done so.
See Bullard v.
Scism, 449 Fed. Appx. 232, 235 (3d Cir. 2011)(citing Von Kahl,
14
855 F. Supp at 1421); see also Wilson v. Ashcroft, 350 F.2d 377,
380-81 (3d Cir. 2003).
Next, Petitioner alleges that he was not permitted to call
witnesses and that he did not request for Ms. Causey to be his
staff representative at his CDC hearing.
belied by the record.
These allegations are
The September 30, 2011 Notice informed
Petitioner that he could call witnesses and request a staff
representative.
The Notice expressly shows that Petitioner
checked and initialed the box requesting a staff representative
and it shows that Ms. Causey was requested as his representative.
Petitioner initialed and signed this Notice on September 30,
2011.
Moreover, Petitioner cannot show any demonstrable
prejudice with regard to the alleged lack of witnesses at his CDC
hearing.
He states that he wanted to call Ms. Causey and a
security guard as character witnesses on his behalf.
In light of
the documentary evidence reviewed and considered by the CDC,
including Petitioner’s articles regarding false positive results,
and Petitioner’s denial of the charges, it is not likely that
character testimony from a security guard at the halfway house
would have been critical in the CDC’s decision.3
3
As to the allegation that Ms. Causey did not act as his
advocate, the record shows that Petitioner’s wife sent documents
to Ms. Causey, on August 28, 2011, for her to present at
Petitioner’s hearing. This confirms not only that Ms. Causey
acted as Petitioner’s representative, but also that Petitioner
had intended to have Ms. Causey represent him at the CDC hearing.
(Moran Decl., Doc. 2b). The date of the letter from Petitioner’s
15
Next, Petitioner alleges that he was denied the opportunity
to present documentary evidence.
contradicted by the record.
Again, this allegation is
The Incident Report for the CDC
hearing attaches articles provided by Petitioner, through his
wife having submitted them to Ms. Causey for introduction at the
hearing.
(Moran Decl., Doc. 2b).
However, it appears from the
petition that Petitioner also is arguing that he was not given an
opportunity to obtain a second, independent lab test in violation
of his due process rights under Wolff.
Wolff does not, however,
guarantee prisoners the unfettered right to call any witness or
present any evidence they wish regardless of its relevance or
necessity.
See Wolff 418 U.S. at 566-67 (stating reasonable
penological needs may limit the right to present evidence); see
also Garrett v. Smith, 180 Fed. Appx. 379, 381 (3d Cir. May 12,
2006); Spence v. Farrier, 807 F.2d 753, 756 (8th Cir. 1986)
(although inmates are permitted to present a defense, they are
not entitled to have confirmatory testing done; to allow routine
challenges to the reliability of drug tests “would seriously
interfere with the institutional goal of drug deterrence and
prompt resolution of drug related infractions”); Ray v. Caraway,
2012 WL 3156832 at *7 (D.Md. Aug. 2, 2012); Rivas v. Cross, 2011
WL 1601289 at *7-8 (N.D.W.Va. Apr. 1, 2011); Batista v. Goord,
wife further confirms that Petitioner had advance knowledge of
his hearing so as to give him opportunity to prepare a defense.
16
2005 WL 2179420 (N.D.N.Y. Aug. 28, 2005)(inmate has no due
process right to have substance retested at an outside
laboratory); Swint v. Vaughn, 1995 WL 366056 at *6 (E.D.Pa. June
19, 1995)(“An inmate has no due process right to submit a second
sample for drug testing”).
Therefore, this Court finds no due
process violation, as it is clear from the record that Petitioner
was given every reasonable opportunity to present documentary
evidence at his CDC hearing.4
Finally, Petitioner seems to argue that he was denied the
opportunity to be heard because he did not appear before a DHO
hearing.
Because Petitioner was housed at a halfway house at the
time of his incident, due process is afforded at a CDC hearing,
not a DHO hearing.
See Sierra v. Scism, 2011 WL 65665, *2
(M.D.Pa. Jan. 7, 2011)(“every court which has examined the
4
Petitioner also appears to argue that the CDC hearing was
predetermined and that is why he was not given an opportunity to
present evidence. Petitioner provides no facts to support his
argument of bias and predetermination. He merely states that the
CDC Report was already typed with its finding and recommended
sanction at the time he appeared at the October 3, 2011 hearing.
A review of the CDC Report provided shows a typewritten report
with handwritten notations regarding Petitioner’s statement,
denial of charges, and the sanctions recommended. It is plain
from the report that the documentary evidence was submitted and
reviewed beforehand. Nevertheless, it is equally clear from the
handwritten entries that the CDC considered all relevant
arguments made by Petitioner at the time of the hearing. Indeed,
based on Petitioner’s arguments, the recommended sanctions were
reduced at the conclusion of the hearing. (Moran Decl., Doc.
2e). Accordingly, this Court finds that Petitioner’s general
allegation of bias and predetermination is insufficient to prove
a due process violation here. See Sierra v. Scism, 2010 WL
5553955, *5 (M.D.Pa. Dec. 14, 2010).
17
procedures established by Program Statement 7300.09 has held that
these procedures satisfy the procedural due process requirements
established by the Supreme Court in Wolff v. McDonnell”);
Fernandes v. Warden, USP-Lewisburg, 2007 WL 1120520 (M.D.Pa.
April 13, 2007); Castro v. United States Bureau of Prisons, 2005
WL 2205791 (D.N.J. Sept. 8, 2005); see also Mazzanti v. Bogan,
866 F. Supp. 1029, 1033 (E.D. Mich. 1994); Stevens v. Thomas,
2011 WL 3563131, *4 (D.Or. Aug. 10, 2011); Harris v. Norwood,
2008 WL 5377647, *1 (C.D.Cal. Dec. 16, 2008)(no due process
violation where petitioner at RRC given CDC hearing, with review
by DHO prior to sanctions of loss of GCT and disciplinary
transfer).
As one court aptly stated, “Wolff does not mandate
that [p]etitioner be granted two hearings[,] one before the CDC
and one before the DHO.”
Rini v. Nash, 2005 WL 2033689, *3
(D.N.J. Aug. 22, 2005).
Therefore, where Petitioner in this case was provided with a
CDC hearing, and where review of the CDC procedures by the DHO
shows that due process protections were met, as required under
Wolff or Von Kahl, this Court concludes that Petitioner has not
demonstrated any procedural due process violation sufficient to
warrant habeas relief under § 2241.
2.
Sufficient Evidence to Support the Charge and Sanctions
The Supreme Court has held that procedural due process is
not satisfied “unless the findings of the prison disciplinary
18
board are supported by some evidence in the record.”
Superintendent v. Hill, 472 U.S. 445, 454-55 (1985); Young v.
Kann, 926 F.2d 1396, 1402-03 (3d Cir. 1991).
The Supreme Court
has stated:
Prison disciplinary proceedings take place in a highly
charged atmosphere, and prison administrators must
often act swiftly on the basis of evidence that might
be insufficient in less exigent circumstances. The
fundamental fairness guaranteed by the Due Process
Clause does not require courts to set aside decisions
of prison administrators that have some basis in fact.
Revocation of good time credits is not comparable to a
criminal conviction, and neither the amount of evidence
necessary to support such a conviction, nor any other
standard greater than some evidence applies in this
context.
Hill, 472 U.S. at 456 (internal citations omitted).
the Court stated:
Moreover,
“The Federal Constitution does not require
evidence that logically precludes any conclusion but the one
reached by the disciplinary board.
Instead, due process in this
context requires only that there be some evidence to support the
findings made in the disciplinary hearing.”
Id. at 457.
See
also Thompson v. Owens, 889 F.2d 500, 502 (3d Cir. 1989); Moles
v. Holt, 221 Fed. Appx. 92, 94 (3d Cir. Mar. 23, 2007)(“A court
need not undertake a searching inquiry to ascertain the presence
of ‘some evidence’ supporting a disciplinary ruling; the
‘relevant question is whether there is any evidence in the record
that could support the conclusion reached by the disciplinary
board.’”(quoting Hill, 472 U.S. at 455–56)(emphasis added in
Moles)).
Further, “a challenge that goes to the weight of the
19
evidence is irrelevant to the issue of whether the DHO’s finding
had a constitutionally sufficient evidentiary basis.”
Moles,
supra (citing Thompson v. Owens, 889 F.2d at 502).
Here, there is sufficient evidence noted by the CDC and
approved by the DHO, in reaching the determination that
Petitioner committed the act as charged.
While the CDC Report
lists all of the evidence considered at the hearing, including
Petitioner’s statement, the lab test results, the chain of
custody, the Brooklyn House Intake Process Orientation Checklist
and Handbook, as well as the miscellaneous documents submitted by
Petitioner to support his argument of a false positive test
result, the CDC specifically relied upon the positive urinalysis
result and the absence of medications that would cause a positive
test for Cocaine (Metab).
Consequently, there was more than
sufficient evidence presented at the CDC hearing to show that
Petitioner had committed the Code 112 violation.
The CDC Report
plainly shows that it was “not so devoid of evidence that the
findings of the [CDC/DHO were] without support or otherwise
arbitrary.”
Hill, 472 U.S. at 457.
Moreover, Petitioner has failed to proffer any sufficiently
credible contradictory evidence.
The procedures enunciated in
Wolff, supra, were complied with, and there was “some evidence”,
in accordance with Hill, supra, to support the CDC’s finding of
guilt.
See Sinde v. Gerlinski, 252 F. Supp.2d 144, 150 (M.D. Pa.
2003)(“If there is ‘some evidence’ to support the decision of the
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hearing examiner, the court must reject any evidentiary
challenges by the plaintiff”)(quoting Hill, 472 U.S. at 457).
Finally, Petitioner argues that the sanctions imposed by the
DHO were excessive.
Federal regulations provide that for a Code
112 sanction, a DHO may disallow between 50 and 75 percent (27 to
41 days) of good conduct time available, and forfeit 100 percent
of non-vested GCT credits.
28 C.F.R. § 541.13, Table 3.
The
sanctions imposed against Petitioner included 40 days loss of GCT
and 80 days loss of non-vested GCT.
Clearly, the sanctions
imposed in this instance fall within the range of sanctions
allowed in the relevant regulation.
Therefore, there is no basis to expunge the incident report
and sanctions imposed because Petitioner has not proven that he
was denied due process or that there was insufficient evidence to
support the disciplinary finding and sanctions.
Accordingly,
this habeas petition will be denied for lack of merit.
CONCLUSION
Based upon the foregoing, the petition for a writ of habeas
corpus under 28 U.S.C. § 2241 will be denied for lack of merit.
An appropriate Order accompanies this Opinion.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: November 20, 2012
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