BENSON v. UNITED STATES OF AMERICA et al
OPINION. Signed by Judge Renee Marie Bumb on 12/11/2014. (drw)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STEPHEN J. BENSON,
: Civil Action No. 13-0213 (RMB)
UNITED STATES OF AMERICA,
BUMB, District Judge:
This matter comes before the Court upon Petitioner’s
submission of his filing fee of $5 and a letter, Docket Entry No.
5, filed in response to this Court’s prior order.
Petitioner is a federal inmate confined at the FCI Fairton
(“Fairton”), New Jersey.
He challenges the disciplinary sanction
imposed upon him on the basis of an incident that took place at
Fairton library on February 25, 2012.
See Docket Entry No. 1, at
That incident gave rise to an incident report produced by
Officer Conception (“reporting officer”) who witnessed the
The report read:
Saturday February 25, 2012, at 10:25 AM, I was in the
Education Department Leisure Library. I looked up from
my table [and saw Petitioner] seated at the middle
table, staring at me. It was at this time I realized
[Petitioner] was masturbating. Specifically, he was
seated with his pants pulled down lower than
appropriate, with his penis out and in his hands,
massaging it. I ordered [Petitioner] to stop what he
was doing [and] radioed to [the supervising Officers]
asking them to report to [the library]. When they
arrived, [Petitioner] was removed . . . .
At 8:05 p.m. on the day of the incident, Petitioner was
served with a notice of a disciplinary charge against him.
id. at 37.
In response, he conceded that, during the incident,
he indeed “‘was sitting at the table with [his] hands [dipped]
in[to his] pants.”
He claimed, however, that he did not
commit a violation because he had “psoriasis over most of [his]
body [including his genitals, and so he] was [not masturbating
during the incident but merely] scratching [him]self [in his
Petitioner had his disciplinary hearing ten days after the
He waived his right to request a staff
representative, see id., but
requested [an opportunity to call] the inmates that
were sitting at his table in [the library] at the time
of the incident. [Petitioner] stated he did not know
the identity of the inmates at the table with him, but
indicated they were Jamaican. [The hearing officer]
informed [Petitioner] that[,] without proper
identification[, the hearing officer] would not know
who to call as a witness. [Petitioner] also [requested
to] call Dr. Morales as a witness [asserting that]
Dr. Morales would testify that [Petitioner] ha[d]
psoriasis over a large portion of his body [including
his genital area. The hearing officer] informed
[Petitioner] that neither the existence nor extent of
[Petitioner’s] psoriasis [was] disputed [since the
hearing officer] accept[ed Petitioner’s] assertion that
he ha[d] psoriasis over a large portion of his body.
Therefore, Dr. Morales was not called [as Petitioner’s]
witness because [the hearing officer found that Dr.
Morales’] testimony would be [duplicative and
Id. at 38.
Petitioner was found guilty of the charged disciplinary
infraction, and served with the finding that read as follows:
[The hearing officer] finds [that Petitioner] committed
the prohibited act of Engaging in Sexual Acts, Code
205, when [Petitioner] you took part in intimate
physical contact with [him]self by exposing and rubbing
[his] penis in view of staff. . . . [Petitioner made
an] admission that the reporting officer observed
[Petitioner] with [his] hands [deepened into his]
pants. [Petitioner] admits having [his] hands in [his]
pants but den[ies] any wrongdoing [on the grounds]
that [he has] psoriasis and [he] had [his] hands in
[his] pants to scratch [him]self. [The hearing officer]
took into consideration [that] statement but gave
little weight to [Petitioner’s] defense. [Petitioner’s]
version of events is unreasonable . . . . It is
reasonable to believe that[,] if a person had an itch
of that nature and degree[, that person] would have
went to the restroom to appropriately address the
issue. [Petitioner] did not [do that]. [Therefore, the
hearing officer] finds the reporting officer’s account
more reasonable to believe and gives more weight to her
testimony. [Petitioner is sanctioned to] disallow[ance
of] good conduct time [in the amount of] 27 days.
Id. at 38-39.1
Screening Petitioner’s challenges to the aforesaid loss of
his good-conduct-time credits, this Court noted Petitioner’s
assertions that his due process rights were violated because: (a)
The Bureau of Prison (“BOP”) “Handbook” distributed to
all inmates upon their admission to a federal correctional
facility notifies the inmates that, inter alia, “Inmates who
engage in inappropriate sexual behavior can be charged with [for
instance, a violation of] Code 205/(A): Engaging in a Sex Act.”
pdf, at *6.
he was not allowed to call Dr. Morales to testify that he had
psoriasis, including in his genital area; (b) the hearing officer
did not assist him in obtaining the names of the three inmates
whom Petitioner identified merely as “Jamaican”; (c) he believes
that the hearing officer was biased against him; (d) the hearing
officer found the incident report executed by the reporting
officer more credible than Petitioner’s position; (e) the hearing
officer’s final findings report was dated April 11, 2012, but
delivered to Petitioner three days later; and (f) Petitioner
allegedly experienced certain obstacles while he was exhausting
his claims administratively, but the administrative exhaustion
process was duly completed.2
See generally, Docket Entry No. 1.
The Court explained to Petitioner that such allegations did
not amount to a sufficient claim because Petitioner’s incident
report and his own admission that he had his hands dipped into
his pants and kept scratching his genital area in a public place
(and in open view of the reporting officer) supplied “some
evidence” required for the finding that Petitioner “engaged in
inappropriate sexual behavior” because an inmate’s public
In addition, Petitioner asserted that, had he been
provided with a certain “30 Inmate Out-Count sheet,” he could
have figured out “the last names of [the] three witnesses” whom
he identified to the hearing officer as merely “Jamaican.” Id.
at 9. While the Petition is less than clear as to this issue,
some statements made therein could be construed as suggesting
that Petitioner might have requested this “30 Inmate Out-Count
sheet” from his hearing officer right prior to the hearing, but
had that request denied. See Docket Entry No. 1. at 9-10.
touching, scratching, massaging, etc. his/her genital area
qualifies as both “sexual” and “inappropriate” conduct regardless
of whether or not it is done for the purposes of his/her sexual
gratification or to satisfy other bodily needs, or to offend the
staff, to entertain other inmates, as a joke, etc. because such
conduct could be perceived by a reasonable observer as sexual and
See Benson v. United States, 2014 U.S. Dist.
LEXIS 2089, at *8-13 (D.N.J. Jan. 8, 2014) (this Court’s prior
opinion, citing, inter alia, Pachtinger v. Grondolsky, 340 F.
App’x 774, 776-77 (3d Cir. 2009), for the observation that an
inmate who is sanctioned under Code 205 need “not [be] found to
have engaged in a sexual act; rather, [(s)]he [should be] found
to have engaged in activity that could have been perceived as a
sexual act and which was disruptive to the orderly
Then, turning to the procedural safeguards implicated by a
disciplinary hearing, this Court noted Petitioner’s speculative
position that his hearing officer was biased against him, even
though the hearing officer was a male officer distinct and
different from the female reporting officer.
correspondingly, explained to Petitioner that, “to obtain habeas
corpus relief on a challenge based on tribunal’s misconduct, an
inmate must show actual bias, i.e., state the facts verifying
that the decision-maker treated him/her in a fashion showing
unfairness per se,” and mere impressions or deducements cannot
See id. at *15-16 (relying on Johnston v. Love,
940 F. Supp. 738, 754 (E.D. Pa. 1996), aff’d, 118 F.3d 1576 (3rd
Cir.), cert. denied, 522 U.S. 972 (1997); United States v.
Gallagher, 576 F.2d 1028, 1039 (3d Cir. 1979)).3
This Court also took note of Petitioner’s allegation that he
was denied an opportunity to call Dr. Morales as his witness, and
that he wished to identify and call, as additional witnesses, the
unidentified inmates who were “Jamaican.”
this Court explained to Petitioner that a denial of the
opportunity to call a certain person as a witness might have a
due process impact only if the litigant specifies what that
person could have offered to aid the litigant’s defense.
Pointing out that Petitioner’s hearing officer already
accepted Petitioner’s contention that Petitioner had psoriasis,
including in his genital area, this Court concluded that Dr.
Morales’ testimony, even had it been offered, would not have
altered the outcome of Petitioner’s disciplinary hearing.
id. at *19.
In addition, this Court dismissed, for lack of legal
significance, Petitioner’s allegations that: (a) the final report
was dated three days prior to the date when it was delivered to
Petitioner; and (b) Petitioner had experienced some “obstacles”
to exhaustion even though his claims appear duly exhausted. See
Benson, 2014 U.S. Dist. LEXIS 2089, at *16-17, n.7.
Then, this Court turned to Petitioner’s alleged inability to
identify and call the three inmates (designated as “Jamaican”) as
With regard to that claim, this Court explained
to Petitioner that it was Petitioner’s obligation to provide his
prison officials with these witnesses’ descriptions sufficient to
allow identification of these witnesses.
See id. at *19-21
(detailing the relevant legal regime and providing examples).
However, mindful of Petitioner’s alleged request for examination
of the “30 Inmate Out-Count sheet,” this Court directed him to
clarify how the testimony of these unidentified inmates (had they
been identified and called) would have aided Petitioner’s defense
against the charge that he was engaged in a conduct perceived by
the reporting officer as an inappropriate sexual act.
See id. at
The letter at bar followed.
See Docket Entry No. 5.
The factual reason for the calling for my 3
witnesses was to impe[ach] the credibility of [the
reporting officer. The disciplinary officer] took it
upon himself to fabricate [that all three witnesses
were] Jamaican, only one of them [was] Jamaican. . . .
So the answer to the Court[’]s question [about] the
difference the witnesses would have made remains a
mist[e]ry because the [prison officials] were not going
to allow [this issue] to develop[.] . . . [Petentially,
these witnesses] would clarify that the [reporting
officer] made no . . . statement [to Petitioner that he
had] to stop doing what [he was doing, and they might
have verified that Petitioner] was not facing in her
direction. So therefore her assumpt[i]ons [that
Petitioner was masturbating] are incorrect. . . . The
on[l]y thing that would have given [Petitioner a]
minute chance [during the disciplinary hearing would be
the scenario where the disciplinary officer would have]
honored [Petitioner’s self-serving position that he did
not commit any] violation.
Id. at 1-2.
Petitioner’s letter suggests his continuous confusion as to
the legal issues at hand.
As this Court already explained to
Petitioner, he was not sanctioned upon a finding that he was
engaged in the act of masturbation; rather, he was sanctioned
upon a finding that he engaged in an inappropriate sexual
Thus, it is of no relevance whether Petitioner was or
was not facing the reporting officer.
What matters is that
Petitioner – while being in a public place – had his hands dipped
into his pants and was scratching his genital area in a fashion
that a reasonable observer, including the reporting officer,
could perceive as an inappropriate sexual conduct.
Correspondingly, as this Court already explained to Petitioner,
the “witnesses’ testimonies would be of any value to Petitioner
only had these inmates testified that the entire process of
Petitioner’s dipping his hands into his pants and scratching his
genital area was such that no reasonable observer could have
perceived it to be inappropriate sexual conduct.”
U.S. Dist. LEXIS 2089, at *22.
No statement in Petitioner’s letter at bar suggests that the
unidentified inmates could have testified to any facts having
While this Court is mindful of the emotional
importance the difference between the reporting officer’s
statement (that Petitioner was engaged in the act of
masturbation) and Petitioner’s position (that he was engaged in
the act of scratching his genitals) has to Petitioner,
Petitioner’s emotions cannot affect the validity of the hearing
officer’s finding that Petitioner was engaged in an act that a
reasonable observer could qualify as an inappropriate sexual
conduct that violated the BOP regulations.4
Since Petitioner’s letter verifies that – had the three
unidentified inmates been identified and called as Petitioner’s
Petitioner appears to be under the impression that, had
the three unidentified inmates testified that he was merely
“scratching” his genital area rather than masturbating, the
hearing officer would have been obligated to discredit the
reporting officer’s statement on the basis of that difference
and/or would be obligated to dismiss the reporting officer’s
statement upon applying the preponderance of evidence test.
However, neither that difference nor the “preponderance of
evidence” standard are relevant to a disciplinary 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)). As this Court already explained, a
disciplinary sanction is valid if it is supported by merely “some
evidence,” meaning evidence that are more than a scintilla of
evidence are sufficient to support a disciplinary finding. See
Young v. Kann, 926 F.2d 1396, 1402 (3d Cir. 1991) (“warning
against dependence upon a prison official’s account without ‘any
form of corroborative evidence’”) (citation omitted, emphasis
witnesses – their testimony would not have been of legal
significance for the purposes of Petitioner’s disciplinary charge
of “inappropriate sexual behavior” and resulting sanction,
Petitioner’s § 2244 challenges will be conclusively dismissed.
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: December 11, 2014
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