JOHNSON v. ZICKEFOOSE

Filing 32

OPINION. Signed by Judge Renee Marie Bumb on 1/8/2014. (drw)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
LARRY DALE JOHNSON,
:
: Civil Action No. 12-2544 (RMB)
Petitioner,
:
:
v.
:
OPINION
:
DONNA ZICKEFOOSE,
:
:
Respondent.
:
_______________________________________
:
This matter comes before the Court upon Petitioner’s
multiple filings docketed as Docket Entries Nos. 14 to 17, and 19
to 31.
I.

BACKGROUND
In light of the convoluted procedural history of this

matter, a brief summary of the same appears warranted.
On April 30, 2012, Petitioner submitted a lengthy document
styled as a § 2241 petition.
1

See Docket Entry No. 1.1

The Petition was a 75-page document. “To put the span of
[Petitioner's submission] in perspective, it [was] much like
[his] version of Leo Tolstoy’s ‘War and Peace.’” Murakush
Caliphate of Amexem Inc. v. New Jersey, 2011 U.S. Dist. LEXIS
51887, at *69 (D.N.J. May 13, 2011) (quoting Mann v. GTCR Golder
Rauner L.L.C., 483 F. Supp. 2d 884, 891 (D. Ariz. 2007), original
brackets omitted). Habeas Rule 2(d), titled “Standard form,”
provides that “[t]he petition must substantially follow either
the form appended to these rules or a form prescribed by a local
district-court rule.” The standard form and this District’s
form, in turn, direct habeas litigants to “[s]tate concisely
every ground on which [the litigant’s] claim[s] that [(s)he is]
being held unlawfully. Summarize briefly the facts supporting
each ground.” See District’s § 2254 Habeas Form (emphases by
underlining in original). Therefore, the Petition was not in
compliance in the requirements of Habeas Rule 2(d).

Petitioner followed his Petition by a memorandum and motion
“to Compell the Clerk to Perform Clerical duties to secure the
Just, Speedy and Inexpensive Determination of [his] Petition.”2
See Docket Entries Nos. 2 and 3 (capitalization and lack thereof
in original).

The Court, therefore, screened the Petition and

denied Petitioner’s motion.

See Docket Entries Nos. 4 and 5.

Screening the Petition, the Court noted that Petitioner
raised a multitude of civil rights claims that could be asserted
under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 389 (1971), but were not cognizable in
habeas review.

See Johnson v. Zickefoose, 2012 U.S. Dist. LEXIS

166148, at *22-23 (D.N.J. Nov. 20, 2012).

These claims,

therefore, were dismissed.3

2

Petitioner asserted that the Clerk’s Office violates its
obligation to serve the Petition upon Respondents and force
Respondent’s answer. However, unlike in civil matters, there is
no compulsory service in habeas matters and, a fortiori, no
compulsory obligation to answer: such obligations could be given
rise only by a judicial order. See 28 U.S.C. § 2243 (federal
district courts have a pre-service duty to screen and summarily
dismiss habeas petitions that plainly show the petitioner is not
entitled to relief); see also Habeas Rule 4 (same).
3

[Petitioner] asserts numerous claims that concern the
conditions of his confinement rather than the fact or
duration of his confinement. He alleges claims of
denial of medical care, retaliatory transfers and
disciplinary actions, denial of access to the courts
(via denial of postage stamps, etc.) and interference
with his legal mail. [Petitioner] also claims that he
is forced to work despite his total disability, is
denied care giver services and wheelchair accessible
housing and services. He seeks a transfer to a prison
2

In addition, the Court distilled three distinct lines of
habeas challenges and directed Respondent to answer those.

See

id. at *25 (listing the following Petitioner’s habeas lines of
challenges: “[(a)] the BOP decision to deny him five months jail
credit, [(b)] the failure of the BOP to assess his pre-release
[half-way house] placement as mandated under the Second Chance
Act, and [(c)] the BOP's disciplinary sanction resulting in the
loss of good conduct time”).4

medical facility that can accommodate his level 2
chronic care assessment. These claims were [already]
raised by Johnson in an earlier action, Civil No.
11-6754 (RMB) . . . . In addition, [Petitioner]
alleges claims of overcrowded conditions, sexual
harassment, failure to protect (from the harm of
another inmate), and use of excessive force in
violation of his Eighth Amendment right against cruel
and unusual punishment. He also alleges work-related
injuries, classification or custody status issues, and
denial of disciplinary due process claims. All of
these claims involve issues related to the conditions
of his confinement, and are not properly asserted in
this § 2241 action, as they would not alter his
sentence or undo his conviction. Therefore, these
claims must be dismissed for lack of jurisdiction under
§ 2241.
Johnson, 2012 U.S. Dist. LEXIS 166148, at *22-23.
4

Since the Petition made ambiguous statements as to
Petitioner’s proper exhaustion of administration remedies with
regard to each line of these habeas claims, the Court –
recognizing that some claims might warrant non-prejudicial
dismissal on the failure-to-exhaust grounds – found it
unwarranted, at that juncture, to direct the Clerk to commence
two additional matters for Petitioner in order to entertain each
line of his challenges on the merits in a separate action.
Habeas Rule 2(e) requires separate petitions to challenge
separate determinations. See Muniz v. Zickefoose, 2011 U.S.
Dist. LEXIS 115766, at *13 (D.N.J. Sept. 30, 2011) (noting the
3

Upon that development, Petitioner informed the Clerk of his
transfer to the Devens medical facility, in Massachussetts, and
filed a motion for default judgment, asserting that Respondent
failed to answer his Petition, even though Respondent’s time to
answer was still running.

See Docket Entries Nos. 11 and 12.

Respondent, meanwhile, timely filed the answer asserting
Petitioner’s failure to exhaust his administrative remedies and,
in addition, stating that each line of Petitioner’s claims was
meritless and did not warrant habeas relief.
No. 13.

See Docket Entry

In support of its position, Respondent filed an

extensive administrative record and accompanying affidavits.
Docket Entries Nos. 13-1 to 13-5.

See

Respondent’s service of the

answer upon Petitioner prompted his filing of the seventeen
submissions at bar.
31.

See Docket Entries Nos. 14 to 17, and 19 to

Specifically:
Petitioner’s submission in Docket Entry No. 14 stated that

he was transferred to the Solano Jail in California, even though
the BOP records kept showing his continuous housing in
Massachusetts.

His submission in Docket Entry No. 15: (a)

asserted that he could not exhaust his administrative remedies
during the pendency of this matter due to his transfer from the
FCI Forth Dix to Massachusetts, but did not explain his failure
to exhaust prior to filing his Petition; (b) verified his housing

same as “axiomatic”), aff’d, 460 F. App'x 165 (3d Cir. 2012).
4

in Massachusetts; (c) conceded that his jail-time claims were a
request to “correct” his sentence on the basis of Setser v.
United States, 132 S. Ct. 1463 (2012); (d) conflated, anew, his
loss-of-credit habeas claim with his Bivens medical claims, and
(e) sought reinstatement of his lost good-conduct-time credit and
grant of jail-time credit on the basis that he was confined to a
wheelchair.

His submission in Docket Entry No. 16 asserted

“transfer” from the in Massachusetts facility to the very same
facility, while the submission in Docket Entry No. 17 asserted
the Massachusetts officials’ election not to transfer him to a
half-way house in accord with the preliminary determination
reached in Fort Dix.

His submission in Docket Entry No. 19

requested summary judgment as to his Second Chance Act claims and
sought his placement in a half-way house either in Oregon,
Washington, or California.

His submission in Docket Entry No. 20

raised a new Bivens challenge (namely, that, in Massachusetts, he
was assigned to work tasks “beyond [his] physical ability”).

His

submissions in Docket Entries Nos. 21 and 22 restated his Second
Chance Act claims anew and asserted that he had not had his final
Second Chance Act assessment in Massachusetts.

His submission in

Docket Entry No. 23 re-asserted his “transfer” from the
Massachusetts facility to the very same facility and, in
addition, raised Bivens access-to-the-courts claim.

His

submission in Docket Entry No. 24 raised new Bivens conditions of
5

confinement claims: these claims were against the Massachusetts
officials and alleging problems with sewage and errors in
Petitioner’s medical record and treatment.

His submission in

Docket Entry No. 25 asserted that his final Second Chance Act
evaluation was held by the Massachusetts officials and yielded a
decision to place him in a half-way house for 60 to 90 days (in
light of his refusal to perform assigned work tasks).

His

submission in Docket Entry No. 26 was yet another application for
a summary judgment, this time as to all three lines of his habeas
claims.

His submission in Docket Entry No. 27 invited this Court

to conclude that his housing in Massachusetts was improper being
costlier than what his housing would have been at a half-way
house.

His submission in Docket Entry No. 28 requested a

“strike” of the affidavits attached to Respondent’s answer,
asserting that these affidavits were “hearsay.”

His submission

in Docket Entry No. 29 sought an order directing enforcement of
the preliminary Second Chance Act determination reached at Fort
Dix, since it yielded a result more favorable to Petitioner (150
to 180 days) than the final determination (60 to 90 days) reached
in Massachusetts.

Yet, his submission in Docket Entry No. 30

asserted that the preliminary Second Chance Act determination at
Fort Dix violated his rights.

Finally, his submission in Docket

Entry No. 31 requested transfer of the instant matter to
California and, in addition, alleged that he was wrongly denied
6

access to a Residential Drug Abuse Treatment Program (“RDAP,”
that might have qualified him for reduction of sentence) since he
believed he developed an addiction to pain-reducing medications
during the period of his confinement.
For the reasons detailed below, Petitioner’s three line of
habeas challenges asserted ab initio in his Petition will be
addressed on the merits, with two lines of challenges being
severed into two individual actions under Habeas Rule (e).
Analogously, Petitioner’s two habeas claims raised post-pleading
will be severed into new actions, as detailed infra.
II.

SECOND CHANCE ACT CHALLENGES
As detailed supra, Petitioner’s Second Chance Act challenges

present a conflation of three distinct and different habeas
claims.
At the time of filing his Petition, Petitioner asserted that
the Fort Dix officials failed to conduct his preliminary
evaluation for transfer to a half-way house.

Shortly after his

commencement of this matter, such preliminary evaluation was
conducted by the Fort Dix officials and yielded a recommendation
that Petitioner would be placed in a half-way house for the
period of 150 to 180 days.
He later expressed his displeasure with said determination,
asserting that, in his opinion, it violated his rights, even
though he simultaneously sought this Court’s enforcement of that
7

determination.
Also during the pendency of this matter, Petitioner was
transferred to a medical facility in Massachusetts, where his
final Second Chance evaluation took place.

That evaluation

yielded a determination that Petitioner should be placed in a
half-way house for the period of 60 to 90 days in light of his
refusal to perform the assigned work tasks.

At this juncture,

Petitioner is challenging that Massachusetts determination.
As Respondent correctly pointed out, Petitioner’s claims
that the Fort Dix officials failed to conduct his preliminary
evaluation has long become moot, and should be dismissed as such.
Petitioner’s displeasure with the preliminary recommendation
made by the Fort Dix officials (as to Petitioner’s 150-to-180-day
placement in a half-way house) was improperly raised in his postpleading “Notice of Retaliatory Denial,” docketed as Docket Entry
No. 30.5

See Bell v. City of Phila., 275 F. App’x 157, 160 (3d

5

Respondent is correct in asserting that Petitioner’s
preliminary Second Chance Act evaluation at Fort Dix did not
violate his rights, since it was made upon a due assessment of
all statutory factors. Section 3624, referred-to as the Second
Chance Act, see Pub. L. No. 110-199, extended the maximum amount
of time that the BOP may place an inmate in a CCC from 180 days
to twelve months. See 18 U.S.C. § 3624(c)(1). Courts have
consistently held that the Second Chance Act does not guarantee a
one-year placement, but “only directs the Bureau of Prisons to
consider placing an inmate in a [CCC] for up to the final twelve
months of his or her sentence.” Lovett v. Hogsten, 2009 U.S.
App. LEXIS 28957 (6th Cir. Dec. 29, 2009); see also Nelson v.
Zickefoose, 2013 U.S. Dist. LEXIS 3757 (D.N.J. Jan. 9, 2013)
(same); Travers v. Federal Bureau of Prisons, 2009 U.S. Dist.
8

Cir. 2008) (a litigant cannot plead claims in any non-pleading
document, be it moving papers, an opposition to a motion or the
litigant’s traverse); Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir. 2004) (same); Veggian v. Camden Bd. of
Educ., 600 F. Supp. 2d 615, 628 (D.N.J. 2009) (same).
To the extent an actual claim could be read into his
displeasure with the preliminary recommendation made at Fort Dix,
that claim too became moot when the Massachusetts’ officials
elected to discard that recommendation and held Petitioner’s
final Second Chance Act evaluation, upon which they entered a
superseding determination, i.e., that Petitioner’s half-way-house
period should be reduced to 60-to-90 days, in light of his
refusal to perform the assigned work tasks.
In sum, Petitioner’s original Second Chance Act claim (i.e.,

LEXIS 110901 (D.N.J. Nov.30, 2009)(“nothing in the Second Chance
Act entitles Petitioner to a halfway house placement longer than
the 120-150 days already approved. These pre-release placement
decisions are committed, by statute, to the discretion of the
Director of the Bureau of Prisons, whose exercise of discretion
is to be guided by the enumerated considerations”); Creager v.
Chapman, 2010 U.S. Dist. LEXIS 26843 (N.D. Tex. Mar.22, 2010)
(although Petitioner disagrees with her CCC placement date after
consideration of the § 3621(b) factors, this “does not establish
a constitutional violation, as nothing in the Second Chance Act
or § 3621(b) entitles [Petitioner] or any other prisoner to any
guaranteed placement in a residential reentry center[ ]” and
“‘the duration of [CCC] placement is a matter to which the [BOP]
retains discretionary authority’”) (citations and quotation
omitted); Wires v. Bledsoe, 2010 U.S. Dist. LEXIS 9094 (M.D. Pa.
Feb.3, 2010) (“[even if] the petitioner’s unit team recommended
significantly less than six months (only 60 days) in a [CCC],
there is no basis to infer that their discretion was [abused]”).
9

failure-to-evaluate) mooted shortly after commencement of this
matter, while his first post-pleading Second Chance Act claim
against the Fort Dix officials (i.e., displeasure with the 15–to180-day period) mooted in the midst of this action.

Hence, the

sole currently viable Second Chance Act claim was raised in
Petitioner’s post-pleading submission that challenged the
findings of his Massachusetts officials.
That claim should have been raised by means of a new and
separate habeas petition, see Habeas Rule 2(e), and, upon proper
administrative exhaustion (or upon a due showing that exhaustion
should be excused) – filed with the court of appropriate
jurisdiction, which is the District of Massachusetts.6
While it appears superfluous to commence a new habeas action
for Petitioner in order to litigate his now-mooted and, as the
record demonstrates, substantively meritless challenges against
the Fort Dix officials, it appears warranted to commence a new
and separate matter for Petitioner with regard to his recentlyminted post-pleading Second Chance Act claim against the
Massachusetts officials.

Cf. George v. Smith, 507 F. 3d 605, 607

(7th Cir. 2007) (“Claim A . . . should not be joined with

6

See Rumsfeld v. Padilla, 542 U.S.426, 442 (2004)
(jurisdiction for habeas corpus petitions challenging present
physical confinement lies in only one district: the district of
petitioner’s confinement at the time of petitioner’s filing of
the petition); accord Braden v. 30th Judicial Circuit Court, 410
U.S. 484, 494-95 (1973).
10

unrelated Claim B . . . .

Unrelated claims . . . belong in

different suits, . . . to prevent the sort of morass that [a
multi]-claim . . . suit produced . . . .

A buckshot [pleading]

that would be rejected if filed by a free person . . . should be
rejected if filed by a prisoner”).

The Clerk, therefore, will be

directed to commence such new habeas matter for Petitioner.7
III. JAIL-TIME CREDIT AND GOOD-CONDUCT-TIME CREDIT CLAIMS
Petitioner’s two other habeas lines of claims asserted in
the Petition also warrant severance into their own habeas
actions: under Habeas Rule 2(e).

Since Respondent’s answer and

Petitioner’s multiple post-pleading filings provided this Court
with a record enabling the Court to address these claims on the
merits, such reviews are conducted in the instant Opinion.
A.

Jail-Time Credit

Petitioner’s jail-time credit challenge, as asserted in his
Petition, alleged that he was denied a five-month credit for the
time he served at the Lane County jail in Oregon.
However, the record provided by Respondent showed that

7

In that new matter, Respondent will be directed to: (a)
state Respondent’s position as to the transfer of this matter to
the District of Massachusetts (since Petitioner raised this claim
in his post-pleading submission executed while he was housed in
Massaxhusetts); and (b) inform the Court of Petitioner’s transfer
to a half-way-house, if such takes place during the interim. To
expedite that matter, Petitioner will be directed to detail his
exhaustion efforts (as to his Second Chance Act claims against
his Massachusetts officials) or show cause as to why his failure
to comply with the exhaustion requirement should be excused.
11

Petitioner served that five-month period on the basis of the
Oregon state court’s conviction.

See Docket Entry No. 13-4, at 8

(judgment imposed upon Petitioner’s being found guilty of
contempt).

As Respondent correctly pointed out, since that five-

month period was already credited against Petitioner’s state
sentence, it could not have been credited against his federal
sentence.

See 18 U.S.C. § 3585; see also United States v.

Wilson, 503 U.S. 329, 331 (1992).
Moreover, and causing this Court substantial concern,
Petitioner already litigated the very same claim, which was
dismissed in Johnson v. Thomas, Civil Action No. 11-0515 (ST) (D.
Or.); see also Docket Entry No. 13-2, at 9-17 (replicating the
decision of the United States Court for the District of Oregon as
to Petitioner’s § 2241 petition raising this very challenge).
Hence, Petitioner’s jail-time credit challenge appears to be both
meritless and an abuse of writ.8

8

Where a habeas litigant is attempting to re-litigate the
very same issue time and again, or where the litigant raises
claims already known to him as facially meritless, it is well
within the broad scope of the All Writs Act, 28 U.S.C. § 1651(a),
for a district court to issue an order restricting the filing of
such frivolous cases by that litigant. See e.g., In Re Oliver,
682 F.2d 443, 445 (3d Cir. 1982) (citing Lacks v. Fahmi, 623 F.2d
254 (2d Cir. 1980) (per curiam); Harrelson v. United States, 613
F.2d 114, 115 (5th Cir. 1980) (per curiam); Clinton v. United
States, 297 F.2d 899, 901 (9th Cir. 1961), cert. denied, 369 U.S.
856 (1962)). If a petitioner persists at raising his already
litigated claims or already dismissed challenges, he risks
abusing the equitable nature of the habeas writ. See Sanders v.
United States, 373 U.S. 1, 17-19 (1963); Furnari v. United States
12

Seemingly mindful of this fact, Petitioner, being served
with Respondent’s answer, made a new and qualitatively different
assertion in his traverse.

He alleged that he was seeking not a

credit; rather, he was seeking a de facto “sentence adjustment”
in the amount of these five months.9

Specifically, he asserted

that he: (a) transitioned from his state custody into his federal
custody; (b) was of the opinion that his federal sentencing judge
could have sentenced him to a term retroactively concurrent to
his contempt-based state term of five month; and (c) believed
that the Supreme Court ruling in Setser somehow entitled him to a
retroactively concurrent federal “re-sentencing” by this Court.
Petitioner’s position is meritless.

To start, in Setser,

the Supreme Court held that a federal court had the power to
impose a sentence concurrent to a yet-to-be-imposed state
sentence, i.e., a prospectively concurrent sentence.

This, in

turn, means that the Setser scenario has nothing in common with a
retroactively concurrent “re-sentencing” Petitioner hopes to
obtain.

Moreover, the statutory, regulatory and case law

governing the matters of retroactive concurrence allow, but by no
means mandate, the sentencing court to impose the appropriate

Parole Comm’n, 531 F.3d 241, 250 (3d Cir. 2008).
9

Petitioner stated that he was challenging his currently
served federal sentence (imposed by the District of Oregon upon
his conviction of being a felon in possession of a firearm).
13

sentence.

See Ruggiano v. Reish, 307 F.3d 121 (3d Cir. 2002); 18

U.S.C. § 3584; U.S.S.G. § 5G1.3.

Therefore, the District of

Oregon did not violate Petitioner’s rights by electing not to
impose a retroactively concurrent sentence.
Finally, and paramount here, any challenge to Petitioner’s
sentence, as imposed (rather than as executed by the BOP), cannot
be raised in a Section 2241 action: such challenges must be
raised in a timely 28 U.S.C. § 2255 motion filed with the
sentencing court.

See Okereke v. United States, 307 F.3d 117,

120 (3d Cir. 2002); Cradle v. Miner, 290 F.3d 536, 538 (3d Cir.
2002).

Hence, Petitioner’s “sentence adjustment” position raised

in his traverse is dismissed for lack of jurisdiction or, in
alternative, as facially meritless, while his original “jailcredit” claim is subject to dismissal for failure to show a
violation of his federal rights.
B.

Good-Conduct-Time Credit

The foregoing leaves the Court with only one of the three
habeas lines of claims asserted in the Petition, i.e., with
Petitioner’s challenges to loss of his good-conduct-time (“GCT”).
That loss-of-GCT sanction ensued from an incident which took
place on February 13, 2011.

The report produced in connection

with that incident reads, in pertinent part, as follows:
[On the date of the incident, a prison officer, who
supervised kitchen and dining room activities]
inform[ed Petitioner] about a job change that [the
14

officer] was giving him in [the officer’s] kitchen
office. [Petitioner] then yelled in front of other food
service at [the officer] that he will not work for [the
prison officer] and that he was 100 percent disabled.
He also stated in a loud and yelling tone of voice “I
am going to sue you and you don’t want to fuck with
me.” [Petitioner] stated that [the officer’s] name was
named in a law suit several times from his last
incarceration . . . at the [facility. Then,
Petitioner] raised his cane toward [the officer] in a
threatening manner [waiving it] about 2 inches from
[the officer’s] chest and face. . . . [The officer]
grabbed the end of the cane and took it from
[Petitioner].
Docket Entry No. 13-5, at 19.
Less than an hour and a half later, Petitioner was served
with the incident report and interviewed by another officer, who
informed Petitioner of his rights; Petitioner denied the
allegations made in the report but declined to call any witnesses
on his behalf.

During the initial investigation, Petitioner

again denied that the incident took place but still declined to
call witnesses and did not request a staff representative for the
purposes of his disciplinary hearing.

In addition, he refused to

sign the documents notifying him of his rights.

Moreover, he

waived his right of appearance at the hearing, causing the
disciplinary officer to reach the determination on papers, as
submitted by both sides.

Finding the officer’s incident report

and accompanying statements more credible, the disciplinary
officer concluded that Petitioner committed the acts known as
“Threatening Another With Bodily Harm” and “Insolence Toward a

15

Staff Member” and imposed various sanctions.10

The final

disciplinary report was duly served upon Petitioner.11
While convicted prisoners retain the protections of the Due
Process Clause of the Fifth and Fourteenth Amendments that the
government may not deprive them of life, liberty, or property
without due process of law, see Wolff v. McDonnell, 418 U.S. 539,
556 (1974); Haines v. Kerner, 404 U.S. 519 (1972), these
protections are “subject to restrictions imposed by the nature of
the regime to which [prisoners] have been lawfully committed.”
Wolff, 418 U.S. at 556.
A liberty interest protected by the Due Process Clause may
arise from either of two sources: the Due Process Clause itself
or from state or federal law.

See Hewitt v. Helms, 459 U.S. 460,

466 (1983); Asquith v. Dep’t of Corr., 186 F.3d 407, 409 (3d Cir.
1999).

Where the government has created a right to good time

credits, and has recognized that a prisoner’s misconduct
authorizes deprivation of the right to such credits as a
sanction, the prisoner is entitled to a hearing by an impartial
disciplinary tribunal, Wolff, 418 U.S. at 570-71, i.e., by an

10

All sanctions other than the loss of GCT credits are not
subject to review in a habeas actions; the loss of GCT credits
was 27 days.
11

Petitioner appealed his sanctions to the BOP Regional
Office; he alleged, in his appeal, that the officer who executed
the report physically “assaulted” Petitioner.
16

officer excluding “only those [prison] officials who have a
direct personal or otherwise substantial involvement . . . in the
circumstances underlying the charge.”

Meyers v. Alldredge, 492

F.2d 296, 306 (3d Cir. 1974).
In addition, within the setting of an administrative
hearing, the due process guarantees have two arms, one
“quasi-procedural” and the other “quasi-substantive.”
Zickefoose, 869 F. Supp. 2d 568, 575 (D.N.J. 2012).

Mitts v.
To comply

with the quasi-procedural arm, prison officials must provide a
prisoner facing sanctions with: (1) a written notice of the
charges at least 24 hours prior to his hearing, (2) an
opportunity to call witnesses and presented documentary evidence
in his defense unless it is unduly hazardous to institutional
safety/correctional goals, and (3) a written statement as to the
evidence relied on and the reasons for the disciplinary action.
See Wolff, 418 U.S. at 564-66.
On its quasi-substantive side, the due process requires that
findings of a prison disciplinary official be supported by “some
evidence” in the record.

See Superintendent, Massachusetts

Correctional Institution at Wolpole v. Hill, 472 U.S. 445, 454-56
(1985).

Ascertaining whether the “some evidence” standard is

satisfied “does not require examination of the entire record,
independent assessment of the credibility of witnesses, or
weighing of the evidence.”

Id. 455.
17

“Instead, the relevant

question is whether there is any evidence in the record that
could support the conclusion reached by the disciplinary board.”
Id. at 455-56 (emphasis supplied).12
Here, Petitioner’s incident report supplied the required
“some evidence,” and no statement in the report was so illogical
as to cast a doubt on its veracity.

Moreover, all Petitioner’s

quasi-procedural due process rights were meticulously preserved,
and none of his actions or elections could lend support to his

12

Hence neither the “beyond a reasonable doubt” nor even
the “preponderance of evidence” standard is applicable to a
prison hearing. See, e.g., Hairston v. Heffron, 2010 U.S. Dist.
LEXIS 134999, at *13 (D.N.J. Dec. 21, 2010) (“there is no
question that the ‘some evidence’ standard is less exacting than
the preponderance of the evidence standard: it merely requires
that the decision not be arbitrary or not without any support in
the record”) (citing Gaither v. Anderson, 236 F.3d 817, 819 (7th
Cir. 2000); Brown v. Fauver, 819 F.2d 395 (3d Cir. 1987); Gibbs
v. King, 779 F.2d 1040, 1044 (5th Cir. 1986)). However, the
“some evidence” requirement is violated if a disciplinary
sanction is rendered either (a) without any factual basis, or (b)
on the basis of facts that are shown to be false. Cf. Williams
v. Federal Bureau of Prisons, 85 F. App'x 299, 303 (3d Cir. 2004)
(noting, without endorsement, the holding of in Paine v. Baker,
595 F.2d 197, 201 (4th Cir.1979), that “[i]n certain limited
circumstances a claim of constitutional magnitude is raised where
a prisoner alleges (1) that information is in his file, (2) that
the information is false, and (3) that it is relied upon [by an
administrative body] to a constitutionally significant degree
[and to the petitioner's detriment]”). Thus, the “quasiprocedural” and “quasi-substantive” inquiries of the due process
overlap where, for instance, the incident report contains
statements so illogical that they vouch for its falsity or where
an inmate: (a) might, potentially, show the falsity of the
incident report filed against him by calling witnesses; but (b)
is denied an meaningful opportunity to call or locate these
witnesses. See, e.g., Mitts, 869 F. Supp. 2d at 576; Cannon v.
Schultz, 2010 U.S. Dist. LEXIS 59468 (D.N.J. June 16, 2010).
18

position that the incident did not take place in actuality.
Therefore, within the limited scope of § 2241 review, this
Court cannot find a violation of Petitioner’s rights.13

See

Livingood v. Longley, 2012 U.S. Dist. LEXIS 52264 (W.D. Pa. Apr.
13, 2012) (observing that the BOPthe district court and citing
Chevron U.S.A. v. Nat'l Res. Def. Council, 467 U.S. 837 (1984)),
aff’s sub nom Livengood v. Bureau of Prisons, 503 F. App’x 104
(3d Cir. 2012) (per curiam).

Petitioner’s GCT credit claims

warrant no habeas relief.
IV.

RDAP CLAIMS
Finally, the Court notes Petitioner’s latest post-pleading

claim asserting that he was denied RDAP enrollment.

As all other

Petitioner’s post-pleading claims, this challenge was improperly
raised in this matter.

See Habeas Rule 2(e).

Moreover, there is no indication that this challenge was
duly exhausted administratively.

In addition, this challenge, as

alleged, appears facially meritless.
The RDAP was designed to assist inmates suffering from a
pre-conviction drug and/or alcohol dependency, and enrollment is
unavailable to those inmates who do not have such dependency.
In accordance with this statutory requirement, the

13

Petitioner’s displeasure with the affidavits Respondent
appended to its exhibits cannot amount to a viable procedural or
evidentiary challenge, since these affidavits are not amenable to
the “hearsay” rules governing either civil or criminal trials.
19

Bureau of Prisons has published RDAP program rules in
28 C.F.R. § 550.50, et seq., and in BOP Program
Statement 5330.11, entitled Psychology Treatment
Programs. Under these program rules, in order to
assess if an inmate has a verifiable documented drug
abuse problem, drug abuse program staff must first
determine if the inmate has a substance abuse disorder
by conducting the RDAP Eligibility Interview and by
reviewing all pertinent documents in the inmate's
central file to corroborate self-reported information.
Additionally, there must be verification in the
pre-sentence investigation report or other similar
documents in the central file which supports the
diagnosis.
Chuong Lam v. Hufford, 2012 U.S. Dist. LEXIS 30463, at *6-7 (M.D.
Pa. Feb. 13, 2012) (citations omitted, emphasis supplied).
Here, Petitioner asserted that he developed a dependency on
pain-reducing medications consumed during his incarceration.
Petitioner’s self-diagnosed dependency cannot qualify as a
verifiable document, not can it show the required
substance/alcohol dependency and, a fortiori, it cannot have any
reflection in his pre-sentence report.
Therefore, as drafted this claim warrants no habeas relief,
but Petitioner will be allowed an opportunity to offer the Court
a clarification.
V.

CONCLUSION
To facilitate the foregoing, Petitioner’s challenges will be

severed into new habeas matters, that is, unless these claims

20

have become facially moot.14
The instant matter will be reserved for the two mooted
habeas claims, that is, the one asserted in the Petition and the

14

The following four new § 2241 actions will be commenced
for Petitioner:
a.

an action based on his recently raised challenges to the
final Second Chance Act determination reached by the
Massachusetts officials during the time when Petitioner was
confined at the Devens medical facility. In that matter,
Respondent will be directed to state Respondent’s position
as to transfer of this matter to the District of
Massachusetts and inform this Court of Petitioner’s
placement in a half-way house during the interim: so to
avoid a transfer of a facially mooted matter. Petitioner
will be directed to detail his administrative exhaustion or
show cause as to excuse of the exhaustion requirement;

b.

a new matter based on Petitioner’s jail-time credit claims.
Since these claims have been shown facially meritless, they
will be dismissed. The new matter will be commenced to
avoid confusion and conflation of Petitioner’s multiple
habeas and Bivens claims in the event Petitioner elects to
seek an appellate review;

c.

a new matter based on Petitioner’s GCT credit claims. Since
these claims too have been proven meritless, they will be
dismissed, and the new matter will be commenced to avoid
undue confusion/conflation of Petitioner’s multiple habeas
and Bivens claims in the event he elects to appeal; and

d.

a new matter based on Petitioner’s recently raised RDAP
claims. Since these claims appear meritless as raised, they
will be dismissed. However, Petitioner will be granted a
narrowly tailored leave to amend his RDAP challenges by
asserting facts showing that: (i) he had suffered a
qualifying pre-conviction drug/alcohol dependency; (ii) he
sought a RDAP enrollment but had it denied; and (iii) he
exhausted his administrative remedies as to said denial.
21

one raised in Petitioner’s post-pleading submission.15
Petitioner’s IFP status, granted in connection with the
instant matter, will be extended to all new habeas matters.
Petitioner’s Bivens challenges, be they raised anew (that
is, after this Court’s dismissal of those claims at the screening
stage) or later injected into his post-pleading submissions, will
be dismissed for lack of jurisdiction.

Such dismissal will be

without prejudice to raising these claims in an appropriate
Bivens action, that is, unless these claims were already raised
in a Bivens action and, thus, would be duplicative if re-raised.
Petitioner’s applications for summary judgment will be
dismissed as facially misplaced, since Rule 56 is a procedural
device applicable to civil actions, not habeas matters.
Petitioner’s request for transfer of this matter to a
federal court in California will be denied as moot or, in the

15

In other words, the instant matter will be reserved for:

a.

Petitioner’s Second Chance Act challenges asserting that the
Fort Dix official failed to conduct his preliminary Second
Chance Act evaluation. That line of claims became moot when
the preliminary review was conducted; and

b.

Petitioner’s Second Chance Act claim that the Fort Dix
officials’ preliminary determination (recommending placement
in a half-way house for 150 to 180 days) violated
Petitioner’s rights. That claim was proven meritless by the
record provided by Respondent and, in addition, became moot
when the preliminary determination of the Fort Dix officials
was superceded by the final determination reached by the
Massachusetts officials.
22

alternative, for lack of merit, since Petitioner was not confined
in California during the time when his claims matured.16
An appropriate Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: January 8, 2014

16

All other Petitioner’s applications, too numerous to
repeat in this footnote, will be dismissed as moot or,
alternatively, for lack of merit, as not warranting a detailed
discussion. In light of this facial lack of merit of
Petitioner’s multiple applications, the Court takes this
opportunity to stress to Petitioner that clear and concise
submissions, filed only when warranted, give credence to a
litigant’s position, while multiple, voluminous and meritless
applications detract from the credibility of a litigant’s
position. As one court observed, “[Petitioner’s] ‘poetic
license’ [statements] are not a basis for relief. Simply put,
dry facts stated in a clear and concise pleading speak volumes
for the purposes of any legal proceeding, while eloquent poetic
‘nothings’ are invariably dismissed as pure rhetoric.” Clauso v.
Glover, 2012 U.S. Dist. LEXIS 139205, at *21-22 (D.N.J. Sept. 26,
2012); accord In re Telfair, 745 F. Supp. 2d 536, 580 (D.N.J.
2010) (“The courts in this nation stand ready to address
challenges brought by litigants in good faith. Which, in turn,
means that the judiciary — including the Judges in this District
— expect litigants to treat their litigation with utmost
seriousness, without abusing legal process and without unduly
testing of the resolve or common sense of the judiciary”).
23