SIMS v. SHARTLE
OPINION. Signed by Chief Judge Jerome B. Simandle on 8/7/2014. (drw)n.m.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 13-6404 (JBS)
Dennis Sims, Pro Se
P.O. Box 420
Fairton, NJ 08320
Irene E. Dowdy
Office of the U.S. Attorney
401 Market Street
Camden, NJ 08101
Attorney for Respondent
SIMANDLE, Chief Judge
Petitioner Dennis Sims, currently confined at the Federal
Correctional Institution at Fairton, New Jersey, filed this Petition
for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241. Respondent
answered the Petition.
For the following reasons, the Petition must
The following procedural background is taken from the Petition,
Respondent’s Answer, and the record of the case.
Petitioner, convicted for drug charges in the United States
District Court, District of Connecticut, is serving a 150-month term
of imprisonment in the Federal Correctional Instiution, Fairton, New
Jersey. His projected release date is April 30, 2015.
On March 3, 2013, during his incarceration at FCI Fairton,
Officer Green issued an Incident Report against Petitioner, charging
him with a Prohibited Act, Code 108, Possession of a Hazardous Tool.
A random cell search of the common area of Petitioner’s eight-man
cell revealed a “long metal object that was sharpened to a point that
appeared to be a homemade weapon.” See Incident Report, Attachment
2a to Declaration of Donna Broome, Legal Assistant (“Broome Decl.”).
The Incident Report was delivered to Petitioner on March 8, 2013.
Petitioner was advised of his rights, stated that he understood those
rights, and was read the report. In response, Petitioner stated: “It
is not mine. I saw Bailey run behind the curtain when C.O. announced
pat search [-] inmate pretended he was using bathroom.” See id. at
The matter was referred to the Unit Discipline Committee
(“UDC”), and on March 9, 2013, a hearing was held. Petitioner stated,
“It’s not mine,” and “It belongs to Bailey.” See id. at ¶ 17. Based
on the severity of the incident, the UDC referred the Incident Report
to the Disciplinary Hearing Officer (“DHO”) for disposition,
recommending loss of Good Conduct Time (“GCT”) and disciplinary
segregation, should the DHO find Petitioner guilty. Petitioner was
notified of the referral to the DHO and his rights before the DHO
in writing. Petitioner waived his right to have staff representation
and called no witnesses. See Broome Decl., Attachments 2b and 2c.
On March 14, 2013, the DHO convened a hearing in the presence
of Petitioner. He noted that Petitioner had been advised of his rights
and waived representation, and that Petitioner did not request
witnesses. The DHO against advised him of his rights and read the
Incident Report aloud. The DHO showed Petitioner the photograph of
the object found, and Sims again stated, “It’s not mine. Everybody
knows who it belongs to.” See id., Att. 2d.
The DHO considered the evidence and found:
The specific evidence relied upon to support this finding
was the eyewitness account of the reporting staff member
that on 03-03-2013, at approximately 12:40 p.m., he
conducted a search of your cell (400-403), which is an
eight man cell. The reporting officer found a long metal
object that was sharpened to a point and appeared to be
a homemade weapon. The object was sharpened to a point and
had tape wrapped around the opposing end. The taped end
of the object contained a lanyard made from a piece of
string. The object was found in the metal hatch above the
toilet. The object was secured and passed on to another
staff member. The DHO also relied on the photograph
documenting the 7 inch long sharpened piece of metal, which
was photographed by K. Hampton, Lieutenant, on 03-03-2013.
In addition, the DHO relied on the Federal Bureau of
Prisons Chain of Custody Log for the 7 inch long sharpened
metal object, which detailed who was in control of the
You denied the charge and indicated the sharpened metal
object did not belong to you. You offered as your defense
the sharpened metal object belonged to one of your
cellmates. You provided no further evidence to support
your claim. The DHO took in consideration your statement
and gave little weight to your defense. The sharpened metal
object, which was capable of inflicting serious bodily
injury, was found in a common area of your cell. Program
Statement 5270.09, Inmate Discipline, states you have the
responsibility to keep yourself and your area free from
contraband. You and six other inmates were assigned to the
cell at the time of the incident. You and each of your
cellmates had access to sharpened metal object. None of
you accepted responsibility for the object. Therefore, the
DHO had no choice but to hold you and your cellmates
accountable for the item which everyone assigned to the
cell had access. Based on the eyewitness account of the
reporting officer, the supporting photograph, and the
Chain of Custody Log, the DHO finds the greater weight of
the evidence indicates you did commit the prohibited act
of Possession, Manufacture, or Introduction of a Hazardous
Tool, Code 108.
See id., Att. 2d at pp. 2-3. The DHO imposed sanctions of 40 days
disallowance of GCT and 30 days disciplinary segregation, “suspended
30 days clear conduct.” See id., Att. 2d at p. 3. The DHO also
explained the reasons for the sanctions, and advised Petitioner of
his right to appeal. The DHO report was signed on March 19, 2013,
and a copy was provided to Petitioner on March 27, 2013. Petitioner
exhausted administrative remedies through the BOP.
In this petition, Petitioner argues that the 40-day
disallowance of GCT violates the Eighth Amendment because it is
excessive (Petition, p. 14). He argues that he was not given proper
notice of the charge, because a “hazardous tool” it not usually used
for a knife, and therefore, he was unable to prepare a defense; Code
108, therefore, is “void for vagueness.” (Pet., pp. 11-13).
Standard of Review
Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241(c)(3). 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.
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).
The Federal Bureau of Prisons (“BOP”) has specific guidelines
for inmate disciplinary procedures, which are codified at 28 C.F.R.
§ 541.1 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. § 541.3 Tables 3–5. In particular, Code
108 states in full:
Possession, manufacture, introduction, or loss of a
hazardous tool (tools most likely to be used in an escape
or escape attempt or to serve as weapons capable of doing
serious bodily harm to others; or those hazardous to
institutional security or personal safety; e.g., hack-saw
blade, body armor, maps, handmade rope, or other escape
paraphernalia, portable telephone, pager, or other
28 C.F.R. § 541.3, Table I (emphasis added).
The UDC hearing is typically conducted within five working days
of the incident, and will “ordinarily” consist of two or more staff.
See 28 C.F.R. § 541.7. The UDC may refer the matter to the DHO for
further proceedings pursuant to § 541.7(g). Disallowance of good
conduct time credits for Code Level 100 must be imposed under 28
C.F.R. § 541.4(b)(1). BOP policy requires that all charges of greatest
severity level prohibited acts – 100 level prohibited acts -- be
referred to the DHO for a decision. See BOP Program Statement 5270.09,
DHO hearing procedures are set forth at § 541.8. These
procedures require the following: (a) 24–hour advance written notice
of charge before the hearing; this right may be waived, § 541.8(c);
(b) an inmate shall be provided a staff representative at the DHO
hearing, if so desired, § 541.8(c); (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, § 541.8(f); (d) the inmate is
entitled to be present throughout the hearing, except during a period
of deliberation or when institutional security would be jeopardized,
§ 541.8(e). 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.
See 28 C.F.R. § 541.8(h).
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).
The Petition Must Be Denied.
No Due Process Violation
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. See U.S.
CONST. amend. XIV. 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.” Wolff, 418 U.S. at 563–71. 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 prison environment.
See id. at 556–57; Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991).
Consequently, there is no evidentiary support for Petitioner's
claim that he did not receive advance written notice of the
disciplinary charge due to the nature of the weapon (i.e., that the
weapon was a knife, not an “escape tool”), nor can it be said that
Petitioner was uninformed or unprepared to address the charge against
him when he appeared for his DHO hearing. It is clear from the record
that the BOP adhered to the proper procedures and provided ample
notice and opportunity to Petitioner prior to the UDC and the DHO
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 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). Moreover, the
Court stated: “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
Petitioner also argues that the UDC cannot be comprised of only
one person (Pet., p. 12). However, when the incident report is
required to be forwarded to the DHO, “only one unit staff member is
required to hold an initial review . . . .” BOP Program Statement
5270.09, p. 23.
F.2d 500, 502 (3d Cir. 1989); Moles v. Holt, 221 F. App’x 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 evidence is irrelevant to the issue of whether the DHO's
finding had a constitutionally sufficient evidentiary basis.” Moles,
supra (citing Thompson, 889 F.2d at 502).
Here, the DHO considered the evidence to support the finding
of guilt on the Code 108 charge. The DHO relied upon the Incident
Report, the fact that the object was found in a common area of the
cell accessible by Petitioner, the photograph of the object, the
custody log for the object, and the mandate of the BOP policy
concerning keeping the common area free of contraband. Petitioner’s
testimony that the weapon was not his was also taken into
consideration. Since none of the cell mates accepted responsibility
for the object, the DHO held them all accountable. See Broome Decl.,
While Petitioner may take issue with this theory of constructive
possession, as Respondent points out, the Third Circuit has held that
the BOP policy of holding an inmate responsible for any contraband
found in his assigned cell does not offend due process. See, e.g.,
Brown v. Recktenwald, 2013 WL 6439653, *2 (3d Cir. Dec. 10, 2013)
(“some evidence” sufficient to show inmate had constructive
possession of homemade weapon found under sink in a six-man cell);
Denny v. Schultz, 708 F.3d 140, 145-147 (3d Cir. 2013) (contraband
found in shared cell was “some evidence” of possession to uphold
discipline against each inmate in cell)(citations omitted); see also
Hernandez-Zapata v. Schultz, 2011 WL 1326815, **4-5 (D.N.J. April
4, 2011) (“some evidence” where homemade weapon found on top of locker
in an eight-man cell) (collecting cases).
The evidence relied upon by the DHO as expressed in the DHO's
Report plainly shows that the finding of guilt was “not so devoid
of evidence that the findings of the [DHO were] without support or
otherwise arbitrary.” Hill, 472 U.S. at 457. Petitioner has failed
to proffer any sufficiently credible evidence to the contrary.
Nor is Petitioner’s sanction unconstitutional. The regulations
expressly provide that sanctions for Greatest Severity offenses
include “disallow ordinarily between 50% and 75% (27-41 days) of good
conduct time credit available for a year.” 28 C.F.R. § 541.3, Table
1. While Petitioner may disagree with the sanction, this Court finds
nothing unconstitutional in their issuance.
Based on the foregoing, it is plain that the due process
procedures enunciated in Wolff, supra, were complied with, and that
there was “some evidence” in accordance with Hill, supra, to support
the DHO's finding of guilt. See Pachtinger v. Grondolsky, 340 F. App’x
774, 777 (3d Cir. 2009); Hernandez-Zapata v. Schultz, 2011 WL 1326815
(D.N.J. Apr. 4, 2011); Sinde v. Gerlinski, 252 F. Supp.2d 144, 150
(M.D. Pa. 2003) (“If there is ‘some evidence’ to support the decision
of the hearing examiner, the court must reject any evidentiary
challenges by the plaintiff”) (quoting Hill, 472 U.S. at 457).
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. Accordingly, this habeas petition will be
denied for lack of merit.
For the reasons set forth above, this Court finds that the
Petition must be denied. An appropriate Order follows.
s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
August 7, 2014
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