VAUGHN v. HOLLINGSWORTH

Filing 15

OPINION. Signed by Judge Renee Marie Bumb on 10/5/2015. (TH, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

Gary Vaughn,
Petitioner,
v.
Warden Jordan Hollingsworth,
Respondent.

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Civil Action No. 14-6470(RMB)

OPINION

BUMB, District Judge
I.

BACKGROUND
Petitioner, presently incarcerated at Cambria County Prison

in Ebensburg, Pennsylvania (Change of Address, ECF No. 10),
filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2241 on October 15, 2014. (ECF No. 1.)1 The petition challenges
sanctions imposed as a result of Petitioner’s disciplinary
hearing at FCI Elkton in Lisbon, Ohio. (Id.) On November 24,

1

At the time Petitioner filed the present petition, he was
confined at FCI Fort Dix in Fort Dix, New Jersey, and this Court
retains jurisdiction. See Rumsfeld v. Padilla, 542 U.S. 426, 441
(2004) (“[W]hen the Government moves a habeas petitioner after
she properly files a petition naming her immediate custodian,
the District Court retains jurisdiction and may direct the writ
to any respondent within its jurisdiction who has legal
authority to effectuate the prisoner's release”) (citing Ex
parte Endo, 323 U.S. 283, 306 (1944)).
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2014, this Court ordered Respondent to show cause, in writing,
as to why Petitioner shall not be granted a curative
disciplinary proceeding. (Memorandum Opinion and Order (ECF No.
4.)) The Court also ordered Petitioner to file an affidavit
clarifying whether, during the incident at issue, he did or did
not make physical movements with an aim to assault his attacker.
(Id.)
Petitioner asserted two grounds for relief in his habeas
petition:
(1) I was unconstitutionally disciplined for
engaging in a fight during a situation where
I was the victim of an assault which caused
several severe injuries and broken bones.
Under the totality of the circumstances, I
had no other reasonable options than to
defend myself and to further protect myself
from further assault and injury. I was
clearly not the instigator nor the aggressor
and
had
no
other
options
under
the
circumstances.
(2) The DHO [discipline hearing officer]
intentionally misquoted my statement. I did
not admit fighting. I only admitted to
defending myself. I did not make the
statements that were included in the DHO’s
report. They are false.
(Pet. (ECF No. 1 at 6-7.))
In his supplementary affidavit, Petitioner asserted the
following facts. (Petitioner’s Affidavit in Support of Writ of
Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 5.)) On October
14, 2013, Petitioner was incarcerated at FCI Elkton in Lisbon,

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Ohio. (Id., ¶ 1.) Petitioner was in his assigned cubicle when
Inmate Wilson, without provocation, entered the cubicle and
punched Petitioner, breaking his nose. (Id., ¶¶ 4-6.) Wilson
kept punching Petitioner, who grabbed Wilson in a “bear-hug” to
stop him. (Id., ¶ 8.) They fell to the ground and Petitioner
called for staff. (Id., ¶ 9.) Petitioner released Wilson when he
said he “was done.” (Id.)
Vaughn and Wilson were transported to the Special Housing
Unit. (Id., ¶ 12.) Vaughn suffered three bone fractures, and
Wilson suffered a few scratches. (Id., ¶ 13.) There was video
footage of the incident, and Case Manager Vince Burton said that
he watched the video. (Id., ¶ 14.) After investigation, Burton
believed Wilson was paid to assault Vaughn. (Id.) Burton advised
Vaughn that there was nothing else Vaughn could have done, and
an incident report would not be issued. (Id., ¶ 15.)
The following day, S.I.S. Lieutenant Georgeoff issued
Vaughn an incident report, at the same time telling Vaughn he
would have done the same thing to protect himself but “when
there is a physical altercation, all inmates receive shots.”
(Id., ¶ 16.) Georgeoff predicted a D.H.O would review the video
footage and “throw the shot out.” (Id.)

3

Burton conducted the Unit Disciplinary Committee Hearing
(“UDC”).2 (Id. at 17.) Vaughn wanted to call Burton as a witness
because he had expressed an opinion favorable to Vaughn about
the incident, after watching the video footage. (Id.) Because he
was the hearing officer, Burton could not be a witness. (Id.)
The D.H.O. hearing was conducted in front of Mr. Montgomery
on October 18, 2013. (Id., ¶ 18.) When asked, Vaughn said he was
not guilty of fighting, he was only defending himself. (Id.)
Montgomery stated “inmates are not allowed to defend
themselves.” (Id.)
Vaughn argues that the actions and movements he made with
respect to Wilson were limited to “those completely necessary to
prevent further injury and assault and were not made with an aim
to assault or attack Inmate Wilson.” (Id., ¶ 19.) Vaughn points
out that his injuries were more significant than injuries, or
the lack thereof, suffered by Wilson, even though Wilson is
approximately 5’9” tall and 170 pounds compared to Vaughn’s
5’11” height and 280 pounds. (Id.)

2

“A Unit Discipline Committee (UDC) will review the incident
report once the staff investigation is complete.” 28 C.F.R. §
541.7. “The UDC ordinarily consists of two or more staff. UDC
members will not be victims, witnesses, investigators, or
otherwise significantly involved in the incident.” Id. §
541.7(b). If an inmate is charged with a high severity
prohibited act, “the UDC will automatically refer the incident
report to the DHO for further review.” Id. § 541.7(a)(4).
4

Respondent filed an Answer with exhibits. (Respondent’s
Answer to Petition for a Writ of Habeas Corpus and Statement as
to Why Petitioner is Not Entitled to a Curative Disciplinary
Hearing (“Answer”) (ECF Nos. 6, 7, 8)). In the Answer,
Respondent asserted the following facts. At FCI Elkton on
October 14, 2013, Petitioner was issued Incident Report No.
2503983 for fighting with another person, a Code 201 violation.
(Incident Report, Ex. 5 to Declaration of Kimberly Sutton
(“Sutton Decl.”) (ECF No. 6-5.) SIS Lieutenant M. Georgeoff
described the incident in the report:
On October 14, 2013, at approximately 2:39
p.m., the A Unit Officer notified the
Control Center via radio he had a medical
emergency
in
cubicle
AA37.
After
the
Operation[s] Lieutenant had responded to AA
Unit he advised the Control Center to
announce a call for staff assistance due to
observing inmate Vaughn . . . covered with
blood from his nasal region, the cubicle
floor, as well as clothes hanging from the
wall. CCTV footage was reviewed and revealed
inmate
Wilson
enter
cubicle
AA37
at
approximately 2:38 p.m. and strike inmate
Vaughn . . . with a closed fist punch. Both
inmates are observed striking each other to
the upper and lower torso area.
Inmate Vaughn was medically assessed by S.
Penwell, RN and received 3 scratches 5cm
each to the middle of his back, redness to
the left of anterior chest, redness to the
right upper abdomen, swelling to his nose
and right hand.
(ECF No. 6-5 at 1.)

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Upon delivery of the incident report to Petitioner, he
waived his right to remain silent and said the report was false.
(ECF No. 6-5 at 4.) The investigator found the charge valid and
recommended a Unit Team Hearing. (Id.)
On October 15, 2013, the Unit Disciplinary Committee
(“UDC”) held an initial hearing on the incident report. (Id. at
3.) Petitioner was read his rights and then made the following
statement:
I was in my cube and out of nowhere inmate
Wilson came in and punched me in the nose.
At that point I grabbed a hold of him to
protect myself and we fell in the corner and
I was on top of him until he said he would
let me out. I was not fighting I had to
protect myself. I was not aggressively
fighting I was defending
myself.
(Id.) The UDC referred the incident report to a DHO for a
disposition. (Id.) Petitioner signed a “Notice of Discipline
Hearing Before the DHO” on October 15, 2013. (Notice of Hearing,
Sutton Decl., Ex. 7 (ECF No. 6-7 at 1.)) On the form, the inmate
is asked whether the inmate wants a staff representative at the
hearing, and “do not” is checked. (Id.) The form also asks
whether the inmate wishes to have witnesses, and “do not” is
checked. (Id.)
The DHO hearing was held on October 18, 2013, and
Petitioner waived his right to a staff representative and did
not present any evidence or request witnesses. (DHO Hearing
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Report, Sutton Decl., Ex. 8 (ECF No. 6-8 at 2.)) The DHO
recorded Petitioner’s statement, “[t]he incident report is
partially true; the fighting part is true, I am guilty of
fighting with Wilson. I did not start the fight, he hit me first
and I was just defending myself.” (Id.)3 The D.H.O. wrote in the
report that he considered the following information in reaching
his decision: (1) Petitioner’s statement; (2) the incident
report and investigation; (3) nine supporting memoranda from FCI
Elkton staff; (4) photographs; (5) medical assessments of Wilson
and Petitioner; (6) and the video footage depicting the
incident. (Id. at 3.)
The DHO found Petitioner guilty and imposed sanctions
including: (1) 180 days disciplinary segregation (with 150 days
suspended pending 180 days of clear conduct); (2) disallowance
of 27 days good conduct time; and (3) loss of visiting
privileges for 180 days. (Id. at 5.) Petitioner exhausted his
administrative remedies challenging the DHO’s decision with the
BOP. (Sutton Decl. (ECF No. 6, ¶ 4.))

3

In his Declaration, DHO Timothy Montgomery explained that he
does not specifically recall Petitioner or his hearing.
(Declaration of Timothy J. Montgomery (ECF No. 7, ¶ 3.) He felt
certain that he recorded Petitioner’s statement accurately
because his practice was to take handwritten notes during the
hearing on the DHO Interview Form. His practice was to write the
exact statements of the inmate and any witnesses, and later
transcribe the statements onto the DHO Report, then shredding
the DHO Interview Form. (Id.)
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Respondent argues that Petitioner received every safeguard
to which he was constitutionally entitled, and there is no
evidence to support petitioner’s claim that the DHO fabricated
Petitioner’s statement. (Answer (ECF No. 8 at 11.)) Respondent
contends that the DHO’s decision meets the required evidentiary
standard of “supported by some evidence.” (Id. at 15-16.)
Finally, Respondent argues that the sanctions imposed are well
within the range of available sanctions. (Id. at 17.)
In reply, Petitioner contends that his testimony at the DHO
hearing was incorrectly recorded as an admission that he
“partook in the altercation,” and this constitutes a deficiency
that requires a curative hearing. (Petitioner’s Reply to
Respondent’s Answer to Petition for a Writ of Habeas Corpus and
Statement as to Why Petitioner is Not Entitled to a Curative
Disciplinary Hearing (“Reply”) (ECF No. 9 at 1.)) Petitioner
further alleged that the absence of Mr. Burton as a staff
representative or a witness severely tainted the DHO hearing.
(Id. at 6.)
According to Petitioner, Case Manager Vince Burton was one
of the first staff members to respond to the fighting incident.
(Id. at 5.) Burton told Petitioner that he viewed the video
footage and spoke to several inmates. (Id.) Vaughn asked Burton
whether he would be in trouble over the incident, and Burton
said “not at all, I watched the video and saw exactly what
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happened and as far as I am concerned you were defending
yourself and there was nothing else that you could have done.”
(Id.)
Burton conducted the UDC hearing. (Id. at 6.) He explained
to Petitioner that, by policy, he had to refer a 200 series
violation to a DHO. (Id.) Burton predicted the DHO would expunge
the violation after watching the video. (Id.) Vaughn asked
Burton to be his staff representative and also a witness, “to
explain his version of what was viewed on the CCTV footage.”
(Id.) Burton said he could not because he was assigned as “UDC.”
(Id. at 7.) This is why Petitioner did not ask for a staff
representative or any witnesses. (Id.)
Vaughn explained this to the DHO, who attempted to call
Burton during the hearing, but Burton could not be reached.
(Id.) The DHO denied Petitioner’s request to postpone the
hearing until Burton could appear. (Id.) Vaughn’s requests to
see the video footage for himself were denied by Burton,
Georgeoff, and DHO Montgomery. (Id. at 8.)
According to Petitioner, at the hearing the DHO told Vaughn
he had not reviewed the video footage, but he was considering
the statement provided in the incident report. (Id.) Lieutenant
Georgeoff wrote the incident report, stating that he viewed the
video and observed “both inmates striking each other to the
upper and lower torso area.” (Id. at 9.) Petitioner argues
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Georgeoff was not an eyewitness to the altercation, and neither
the medical assessments nor the staff memoranda support a
finding that Petitioner engaged in fighting with Wilson. (Id. at
8-9.)
On September 9, 2015, this Court ordered Respondent to
clarify whether the DHO watched the video footage of the alleged
fighting incident. (ECF No. 12.) Respondent submitted the
Declaration of D.H.O. Timothy Montgomery, declaring that he
watched the video footage prior to the hearing and found that it
supported the charge of fighting, Code 201. (ECF No. 13-1).
II.

DISCUSSION
A. LEGAL STANDARD
A challenge to a prison disciplinary proceeding that

resulted in loss of good conduct time is cognizable under 28
U.S.C. § 2241. McGee v. Schism, 463 F. App’x 61, 63 (3d Cir.
2013) (per curiam) (citing Wolff v. McDonnell, 418 U.S. 539,
564–65 (1974)). An inmate is entitled to the following due
process protections in prison disciplinary hearings: “(1)
advance written notice of the disciplinary charges; (2) an
opportunity, when consistent with institutional safety and
correctional goals, to call witnesses and present documentary
evidence in his defense; and (3) a written statement by the
factfinder of the evidence relied on and the reasons for the
disciplinary action.” Superintendent v. Hill, 472 U.S. 445, 454
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(1985). An inmate does not have the right to select the staff
member to serve as his representative. Mitchell v. Romine, 158
F. App’x 367, 369 (3d Cir. 2005) (per curiam).
If the DHO relied on the incident report as “some evidence”
that the prisoner was guilty of fighting, the petitioner may be
entitled to a curative hearing if the prisoner was deprived of a
meaningful opportunity to call witnesses to refute an allegedly
false statement in the incident report. Mitts v. Zickefoose, 869
F.Supp.2d 568, 577 (D.N.J. April 24, 2012). The “some evidence”
standard, however, is minimal “and does not require examination
of the entire record, an independent assessment of the
credibility of witnesses, or even a weighing of the evidence.”
Pachtinger v. Grondolsky, 340 F. App’x 774, 777 (3d Cir. 2009)
(per curiam). For example, evidence that two homemade shanks
were found in a space accessible to the charged inmate was
enough to constitute “some evidence” supporting a prison
disciplinary sanction for violation of possession of a weapon.
Denny v. Schultz, 708 F.3d 140, 147 (3d Cir. 2013).
B. ANALYSIS
Petitioner contends there was no evidence supporting the
DHO’s decision, and his inability to use Case Manager Burton as
a staff representative or a witness tainted the hearing.
Petitioner further asserts that the DHO misquoted Petitioner’s

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statement at the hearing; Petitioner did not admit guilt to the
charge of fighting.
Respondent argues Petitioner declined the opportunity to
have a staff representative, present evidence, or call
witnesses. Furthermore, the DHO cited evidence that he relied
upon in reaching his decision, which meets the “some evidence”
standard, even if Petitioner’s statement from the hearing is
discounted. Petitioner asserts that none of the other evidence
cited by the DHO suggests Petitioner was guilty, with the
exception of Georgeoff’s statement in the incident report about
the video. Petitioner was never allowed to watch the video, and
they were unable to reach Burton during the hearing to present
his opinion of what the video showed.
There is no due process violation when a petitioner’s
request to view the video footage of the incident leading to the
disciplinary charge is denied, as long as the petitioner was
informed of the contents of the video footage and was allowed to
refute it. Pittman v. Bledsoe, 442 F. App’x 639, 641 (3d Cir.
2011) (per curiam). Here, as indicated by signature of the
delivering officer, the incident report was delivered to
Petitioner on October 14, 2013 at 7:51 p.m. (ECF No. 6-5 at 2).
Thus, Petitioner knew in advance that the incident report
contained Georgeoff’s statement that he viewed the video

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footage, and it showed Wilson and Vaughn striking each other in
the torso.
Failure to allow Petitioner to watch the video did not
violate due process because he was given the opportunity to
refute Georgeoff’s description of what the video showed. The
remaining issue is whether due process required that Petitioner
be allowed to call Burton as a witness to testify that the video
did not show Petitioner striking Wilson.
An inmate has a significantly limited right to call
witnesses at a prison disciplinary hearing. Ponte v. Real, 471
U.S. 491, 498-99 (1985). The inmate’s right to call witnesses is
available “when permitting him to do so will not be unduly
hazardous to institutional safety or correctional goals.” Id.,
(quoting Wolff, 418 U.S. at 566.)
The record indicates that when presented with written
notice of the DHO hearing, Petitioner did not request a staff
representative or any witnesses to appear at the hearing. See
Drabovskiy v. Allenwood, 587 F. App’x 47, 49 (3d Cir. 2015) (per
curiam) (district court properly denied habeas relief on claim
that DHO failed to investigate and interview witnesses where
inmate waived right to call witnesses in paperwork he completed
before hearing.) According to Petitioner, he asked the DHO to
call Case Manager Burton as a witness during the hearing, and
the DHO tried to contact Burton but they could not reach him.
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See Portee v. Vannatta, 105 F. App’x 841, 843 (7th Cir. 2002)
(per curiam) (“an inmate who waits to identify witnesses until
the day of the hearing waives that right”) (citing Miller v.
Duckworth, 963 F.2d 1002, 1004 n. 2 (7th Cir. 1992)).
After a petitioner waives his right to call witnesses prior
to the hearing, he must show extraordinary circumstances that
required prison officials to permit him to revoke his waiver in
the middle of the disciplinary hearing. See Von Kahl v. Brennan,
855 F.Supp. 1413, 1424-25 (M.D. Pa. 1994).
Prison officials have a substantial interest
in knowing prior to the time of the hearing
whether an inmate intends to call either
staff or inmate witnesses. Such notice
enables officials to arrange for prisoners
or staff to be available at the time of the
hearing. Absent a showing of surprise or
other
unusual
circumstances,
since
Petitioner clearly waived his right to call
witnesses prior to the hearing, prison
officials did not violate due process by
refusing to permit Petitioner to revoke that
waiver in the middle of his hearing.

Id. at 1425.
Here, Burton was not a witness to the incident. He watched
the video footage and allegedly would have offered the opinion
that Petitioner did not strike Wilson. There are no
extraordinary circumstances that would have required the DHO to
allow Burton to testify before reaching his decision,

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particularly because the video evidence was available to the
DHO.
The DHO Report indicates:
[T]he DHO considered the CCTV video footage
of this interaction of you and inmate
Wilson, Michael, Reg. No.: 15082-032, as a
result of your interaction/fighting with
each
other
on
October
14,
2013,
at
approximately 2:37 p.m., in the Alpha-Alpha
Inmate Housing Unite (Cubicle 37) at FCI
Elkton, Ohio.
(ECF No. 6-8 at 5.) For clarification, Respondent submitted the
Declaration of DHO Timothy Montgomery (ECF No. 13-1), wherein
Montgomery declared, under penalty of perjury, that he
personally watched the video footage before the hearing and
relied on the footage in deciding Petitioner was guilty of
fighting. Petitioner filed a response, questioning how the DHO
now remembered that he watched the video, after he stated in a
declaration, one year ago, that he did not remember Vaughn or
the incident. (ECF No. 14).
The DHO report, written near the time the DHO rendered his
decision, listed the video as evidence “considered” by the DHO,
which certainly implied that the DHO had watched the video. (ECF
No. 6-8 at 5.) For clarification, DHO Montgomery declared that
“whenever video footage is relied upon in the issuance of an
incident report, I personally review the footage and maintain a

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copy for my records.” (ECF No. 13-1). The Court credits DHO
Montgomery’s statements.
Failure to call Burton as a witness to testify about what
the video showed did not violate Petitioner’s rights because the
video itself was the best evidence of the inmate altercation,
given there were no other witnesses. See Fed. R. Evid. 1002 (“An
original writing, recording, or photograph is required in order
to prove its content unless these rules or a federal statute
provides otherwise); see e.g. U.S. v. Brown, Crim. No. 08-0098,
2009 WL 2338112, at *2 (W.D. Pa. July 29, 2009) (precluding
government agents from testifying about contents of video); U.S.
v. Miller, 248 F. App’x 426, 430 (3d Cir. 2007) (per curiam)
(admission of testimony about what was in a written policy
violated best evidence rule where original written policy was
not in evidence).
IV.

CONCLUSION
This Court finds the incident report and the video footage

meet the “some evidence” standard to support the DHO’s decision,
even if Petitioner’s statement of guilt to the DHO is ignored.
Furthermore, Petitioner was not denied due process because
Burton was unavailable as a staff representative or a witness.
Thus, in the accompanying Order filed herewith, the Court will
deny the habeas petition.

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s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: October 5, 2015

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