CUTTS v. SHARTLE
OPINION. Signed by Judge Noel L. Hillman on 8/16/2016. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Hon. Noel L. Hillman
Civil No. 14-4449 (NLH)
ALLAHVELL CUTTS, #62008-054
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro Se
JOHN ANDREW RUYMANN, Assistant U.S. Attorney
PAUL J. FISHMAN, United States Attorney
402 East State Street, Suite 430
Trenton, NJ 08608
Attorneys for Respondent
HILLMAN, District Judge
Allahvell Cutts, a federal inmate confined at FCI Fairton
in New Jersey, filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2241 seeking restoration of 40 days of good
conduct time forfeited as a disciplinary sanction.
filed an Answer, two declarations, and several exhibits.
Petitioner filed a Reply.
For the reasons expressed below, this
Court will dismiss the Petition.
Petitioner challenges the loss of 40 days of earned good
conduct time forfeited as a disciplinary sanction for Destroying
and/or Disposing of Any Item During a Search or Attempt to
Search, in violation of code 115, while he was confined at FCI
Fairton on November 17, 2013.1
The report of the Disciplinary
Hearing Officer (“DHO”) dated December 26, 2013, relied on the
The DHO does find you committed the prohibited act of
Destroying and/or Disposing of Any Item During a
Search or Attempt to Search, Code 115, when you
disposed of an unknown item during an attempted
The specific evidence relied upon to support this
finding was the eyewitness account of the reporting
staff member that on 11-17-2013, at approximately
12:50 a.m., he attempted to search your cell (#325).
The reporting officer gave you a direct order to get
out of your bunk, turn the lights on and come to the
food slot to submit to restraints. The reporting
officer observed you get up from your bunk, turn the
lights on and approach the cell door. As you
approached the cell door you turned off the cell
lights, reached into your underwear and squatted over
the toilet. You appeared to throw something in the
To the extent that Petitioner challenges the sanction of 30
days in disciplinary segregation, this claim is not cognizable
under 28 U.S.C. § 2241 because it does not affect the fact or
duration of Petitioner’s confinement. See Ganim v. Fed. Bureau
of Prisons, 235 F. App’x 882 (3d Cir. 2007); Bronson v. Demming,
56 F. App’x 551 (3d Cir. 2002); Woodall v. Fed. Bureau of
Prisons, 432 F.3d 235, 242 n.5 (3d Cir. 2005). Alternatively,
while the Due Process Clause protects against the revocation of
good conduct time, it does not protect against 30 days of
disciplinary confinement. See Sandin v. Conner, 515 U.S. 472
(1995); Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir. 2002).
toilet and then flush the toilet. After flushing the
toilet you turned the cell lights back on and
submitted to hand restraints. The DHO coupled this
evidence with your own admission you turned the cell
lights on and then off, while the reporting officer
was standing at your door.
You admitted you turned the cell lights on and
observed the reporting officer standing at your door
with restraints in his hands. You also admitted you
turned the lights back off and went to bed. You
denied reaching into your shorts and flushing anything
down the toilet. The DHO took into consideration your
defense [and] gave more weight to testimony provided
by the reporting officer. It is reasonable to believe
you turned the lights off in your cell to conceal the
disposing of contraband. Your account of events does
not appear reasonable and the preponderance of
evidence supports the reporting officer’s conclusions.
Based on the eyewitness account of the reporting
officer and your partial admission, the DHO finds the
greater weight to the evidence indicates you did
commit the prohibited act of Destroying and/or
Disposing of Any Item During a Search or Attempt to
Search, Code 115.
(ECF No. 5-8 at 3.)
Petitioner appealed to the Regional Director, arguing that
the evidence was insufficient.
The decision of the Regional
Director, J.L. Norwood, is dated February 26, 2014.
upheld the Disciplinary Hearing Officer as follows:
The DHO reasonably determined you committed the
prohibited act based on the following. On November
17, 2013, the reporting officer ordered you to get out
of bed, turn the lights on, and submit to restraints.
You got up and turned on your lights. However, you
then turned off your lights, reached into your
underwear, and squatted over your toilet. You
appeared to throw something into the toilet, and then
flushed it. You then turned the lights on, and
submitted to restraints.
Your contention you were never advised a search was
being conducted is not supported by the record. The
DHO justifiably determined you turned off your lights
to conceal your actions. You reached into your
underwear to retrieve something, and flushed it down
(ECF No. 5-3 at 4.)
Petitioner timely appealed to the Central Office, which did
not respond within the time limit set forth in the regulations
governing the Administrative Remedy Program.2
Petitioner challenges the loss of good conduct time,
arguing that the evidence was insufficient because the decision
was “based on nothing other than the officer’s statement,” (ECF
No. 1 at 5), because there was no physical evidence, (ECF No. 1
at 6), because there was no evidence showing that the officer
informed Petitioner of the search before attempting to conduct
it, and because the “whole ordeal was motivated by . . .
retaliation by officer [C]ondo because he did not like the way
petitioner spoke to him during an earlier conversation that had
transpired between the two,” (ECF No. 1 at 7).
Respondent concedes that, because the Central Office did not
timely respond to the appeal, the absence of this response
constitutes a denial of the appeal and the exhaustion of
administrative remedies under 28 C.F.R. § 542.18. (ECF No. 5 at
an Answer, declarations, and exhibits, arguing that the Petition
should be dismissed because the BOP complied with due process
and federal law.
(ECF No. 5.)
Petitioner filed a Reply.
Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not
extend to a prisoner unless . . . [h]e is in custody in
violation of the Constitution or laws or treaties of the United
28 U.S.C. § 2241(c)(3).
A federal court has subject
matter jurisdiction under § 2241(c)(3) if two requirements are
(1) the petitioner is “in custody” and (2) the
custody is “in violation of the Constitution or laws or treaties
of the United States.”
28 U.S.C. § 2241(c)(3); Maleng v. Cook,
490 U.S. 488, 490 (1989).
This Court has subject matter
jurisdiction under § 2241 to consider the instant Petition
because Petitioner challenges the duration of his incarceration
under federal law and he was incarcerated in New Jersey at the
time he filed the Petition.
See Blood v. Bledsoe, 648 F.3d 203
(3d Cir. 2011); Vega v. United States, 493 F.3d 310, 313 (3d
Cir. 2007); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241
(3d Cir. 2005); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir.
Standard of Review
Insofar as the BOP administratively denied Petitioner’s
request challenging the forfeiture of good conduct time, this
Court’s review is limited to the abuse of discretion standard.
See Galloway v. Warden of FCI Fort Dix, 385 F. App’x 59, 61 (3d
Cir. 2010); Barden, 921 F.2d at 478.
Under this standard, a
reviewing court must find that the actual choice made by the
agency was neither arbitrary nor capricious.
See C.K. v. N.J.
Dep’t of Health & Human Services, 92 F.3d 171, 182 (3d Cir.
“[A]gency action must be set aside if the action was
‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law’....” Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 414 (1971), overruled on other grounds,
Califano v. Sanders, 430 U.S. 99 (1977) (quoting 5 U.S.C. §
To make a finding that agency action was not arbitrary or
capricious, or an abuse of discretion, a court must review the
administrative record that was before the agency, and “must
consider whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error of
judgment. . . .
Although this inquiry into the facts is to be
searching and careful, the ultimate standard of review is a
The Court is not empowered to substitute its
judgment for that of the agency.” Overton Park, 401 U.S. at 416.
Reversal of agency action is warranted “[i]f the record before
the agency does not support the agency action, if the agency has
not considered all relevant factors, or if [the court] simply
cannot evaluate the challenged agency action on the basis of the
record before [it].” C.K., 92 F.3d at 184 (quoting Florida Power
& Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
Petitioner argues that the BOP deprived him of earned good
conduct time as a disciplinary sanction without sufficient
The Due Process Clause of the Fifth Amendment of the
Constitution of the United States provides:
“No person shall .
. . be deprived of life, liberty, or property, without due
process of law.”
U.S. Const. amend. V.
A prisoner has a
constitutionally protected liberty interest in good time credit.
See Wolff v. McDonnell, 418 U.S. 539, 555-57 (1974); Young v.
Kann, 926 F.2d 1396, 1399 (3d Cir. 1991).
Where a prison
disciplinary hearing results in the loss of good conduct time,
due process requires:
(1) an impartial decisionmaker; (2) 24
hours advance written notice of the disciplinary charges; (3) an
opportunity to testify, call witnesses and present documentary
evidence, when not unduly hazardous to correctional goals; and
(4) a written statement by the factfinder as to the evidence
relied on and reasons for the disciplinary action.
418 U.S. at 564-566.
Petitioner does not contend that he was
denied any of these rights.
Rather, he maintains that there was not sufficient
“[R]evocation of good time does not comport with the
minimum requirements of procedural due process unless the
findings of the prison disciplinary [officer] are supported by
some evidence in the record.” Superintendent, Massachusetts
Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454
(1985) (citations and internal quotation marks omitted); see
also Griffin v. Spratt, 969 F.2d 16, 19 (3d Cir. 1992); Thompson
v. Owens, 889 F.2d 500, 501 (3d Cir. 1989).
The Supreme Court
explained the “some evidence” standard in this passage of Hill:
We hold that the requirements of due process are
satisfied if some evidence supports the decision by
the prison disciplinary board to revoke good time
credits. This standard is met if there was some
evidence from which the conclusion of the
administrative tribunal could be deduced.
Ascertaining whether this standard is satisfied does
not require examination of the entire record,
independent assessment of the credibility of
witnesses, or weighing of the evidence. Instead, the
relevant question is whether there is any evidence in
the record that could support the conclusion reached
by the disciplinary [officer].
Hill, 472 U.S. at 455-456 (citations and internal quotation
marks omitted); see also Thompson, 889 F.2d 500.
In Hill, the Supreme Court reversed the state court’s
determination that the evidence of a disciplinary infraction was
constitutionally deficient because it did not support an
inference that more than one person had assaulted the victim.
The Supreme Court held that the evidence before the disciplinary
board satisfied the “some evidence” standard:
The disciplinary board received evidence in the form
of testimony from the prison guard and copies of his
written report. That evidence indicated that the
guard heard some commotion and, upon investigating,
discovered an inmate who evidently had just been
assaulted. The guard saw three other inmates fleeing
together down an enclosed walkway. No other inmates
were in the area . . . .
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. Although the evidence in this
case might be characterized as meager, and there was
no direct evidence identifying any one of the three
inmates as the assailant, the record is not so devoid
of evidence that the findings of the disciplinary
board were without support or otherwise arbitrary.
Hill, 472 U.S. at 455-457 (citations omitted).
In this case, the DHO based his determination on the
incident report wherein the reporting officer said that he saw
Petitioner turn the cell light on and off, squat, take something
from his underpants, throw it into the toilet, and flush the
Although Petitioner denied what the reporting officer
claims to have seen (with the exception of turning the light on
and off), the DHO and the Regional Director found the facts set
forth by the reporting officer were credible.
account in the incident report provided some evidence that
Petitioner disposed of something in the toilet during the
officer’s attempt to search the cell.
Compare Hill, 472 U.S. at
455-457 (where three inmates could have assaulted victim, there
was some evidence that Hill was the assailant); Denny v.
Schultz, 708 F.3d 140, 145 (3d Cir. 2013) (“[T]he discovery of
contraband in a shared cell constitutes some evidence of
possession sufficient to uphold a prison disciplinary sanction
against each inmate in the cell, including depriving that inmate
of his or her liberty interest in good time credits.”)
(quotation omitted) with Broussard v. Johnson, 253 F. 3d 874,
877 (5th Cir. 2001) (where the only evidence that petitioner
possessed bolt cutters was the fact that they were found in the
kitchen where he worked, to which 100 inmates had access, the
evidence was insufficient to satisfy “some evidence” standard).
Because the DHO’s decision was supported by some evidence, the
evidence was sufficient to satisfy due process.
Petitioner also argues that the BOP abused its discretion
because the reporting officer filed the incident report in
retaliation where, earlier in the day, Petitioner, “a Black
man[,] had spoken to [the officer] with dignity like a man is
(ECF No. 1 at 8.)
Petitioner does not specify
what he said to the officer and the record shows that he did not
raise retaliation in his appeals to the Regional Director or the
Because Petitioner failed to raise retaliation
in his administrative appeals, he has not exhausted the claim.3
See Speight v. Minor, 245 F. App’x 213, 215-16 (3d Cir. 2007)
(“Because he failed to raise the retaliation claim at every
level of the administrative process, he has not properly
exhausted the claim for § 2241 purposes”).
The claim also fails
on the merits, as Petitioner has not presented facts showing
that his statements to the reporting officer substantially
motivated the officer to write the incident report.4
Although 28 U.S.C. § 2241 contains no exhaustion requirement,
“[o]rdinarily, federal prisoners are required to exhaust their
administrative remedies prior to seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2241.” Gambino v. Morris, 134 F.3d 156,
171 (3d Cir. 1998); see also Vasquez v. Strada, 684 F.3d 431,
434 (3d Cir. 2012)(affirming dismissal of § 2241 petition
challenging BOP’s conduct for failure to exhaust Administrative
Remedy Program); Wilson v. Strada, 474 F. App’x 46, 48 (3d Cir.
2012) (same); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir.
A prisoner alleging First Amendment retaliation must show:
“(1) he engaged in a constitutionally protected activity; (2) he
suffered, at the hands of a state actor, adverse action
sufficient to deter a person of ordinary firmness from
exercising his constitutional rights; and (3) the protected
activity was a substantial or motivating factor in the state
actor's decision to take adverse action.” Fantone v. Latini, 780
Petitioner next argues that the BOP abused its discretion
in determining that he committed prohibited act 115 absent
evidence showing that the reporting officer informed him
beforehand that the officer was going to attempt to search
Petitioner and his cell.
The Regional Director found that
Petitioner’s contention that he was never advised that a search
was being conducted was not supported by the record.
construes Petitioner’s claim to be that the officer must inform
the inmate prior to any alleged violation of code 115 that the
officer was going to attempt to conduct a search.
BOP’s final decision did not indicate that, to establish
violation of code 115, the officer had to inform an inmate
beforehand that the officer intended to attempt a search.
F.3d 184, 191 (3d Cir. 2015); accord Bistrian v. Levi, 696 F.3d
352, 376 (3d Cir. 2012); Mitchell v. Horn, 318 F.3d 523, 530 (3d
Cir. 2003). To establish a causal link, the prisoner must show
that the "constitutionally protected conduct was a ‘substantial
or motivating factor’" in the decision to take adverse action.
Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)(quoting
Mount Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S.
274, 287 (1977)). However, "once a prisoner has demonstrated
that his exercise of a constitutional right was a substantial or
motivating factor in the challenged decision, the prison
officials may still prevail by proving that they would have made
the same decision absent the protected conduct for reasons
reasonably related to legitimate penological interest." Rauser,
241 F.3d at 334; see also Carter v. McGrady, 292 F.3d 152, 154
(3d Cir. 2002) (retaliation claim fails where prison officials
would have disciplined inmate for policy violations
notwithstanding his protected activity).
regulations authorize the BOP to impose sanctions when an inmate
“is found to have committed a prohibited act.” 28 C.F.R. §
Prohibited acts under BOP regulations include code
115, defined as follows:
“Destroying and/or disposing of any
item during a search or attempt to search.”
28 C.F.R. § 541.3,
The BOP’s final decision did not require evidence
showing that the officer informed Petitioner beforehand that the
officer was going to attempt to conduct a search.
interpretation of its own regulation is “controlling . . .
unless it is plainly erroneous or inconsistent with the
Chong v. Dist. Dir., I.N.S., 264 F.3d 378, 389 (3d
Petitioner has not shown that the BOP’s
interpretation of code 115 is plainly erroneous or inconsistent
with BOP regulations.
This Court rejects Petitioner’s argument
that the BOP abused its discretion in sanctioning him for a code
115 violation where there was no evidence that the officer
informed him beforehand that a search would be conducted.
In addition, Petitioner implies that the DHO found him
guilty of violating code 115 based on race discrimination.
Equal Protection Clause requires that all people similarly
situated be treated alike.
See City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985).
A petitioner who alleges
an equal protection violation has the burden of proving the
existence of purposeful discrimination that had a discriminatory
effect on him.
See McCleskey v. Kemp, 481 U.S. 279, 292 (1987);
Whitus v. Georgia, 385 U.S. 545, 550 (1967).
“Thus, to prevail
under the Equal Protection Clause, [Petitioner] must prove that
the decisionmakers in his case acted with discriminatory
McCleskey, 481 U.S. at 292.
Petitioner’s equal protection claim in this case fails
procedurally because he did not raise it in his appeals to the
Regional Director and the Central Office.
The claim fails on
the merits because Petitioner has alleged no facts indicating
that his disciplinary sanction was the result of purposeful
See Lloyd v. Shartle, 514 F. App’x 77, 80 (3d
Cir. 2013) (holding that claim that inmate’s equal protection
rights were violated in disciplinary proceeding failed because
he did not demonstrate the decisionmakers in his case acted with
a discriminatory purpose).
Petitioner has not shown that the BOP abused its discretion
or deprived him of good conduct time in violation of the
Constitution or federal law.
This Court will dismiss the
An appropriate Order accompanies this Opinion.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
August 16, 2016
At Camden, New Jersey
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