ABBOTT v. HOLLINGSWORTH

Filing 10

OPINION. Signed by Judge Noel L. Hillman on 4/29/2015. (drw)n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN JORDAN HOLLINGSWORTH,
:
:
Respondent.
:
___________________________________:
ROBERT ABBOTT,

Civ. No. 14-6784 (NLH)
OPINION

Petitioner, Robert Abbott, a federal prisoner confined at
the Federal Correctional Institution in Fort Dix, New Jersey,
brings this petition for a writ of habeas corpus, filed pursuant
to 28 U.S.C. § 2241, seeking restoration of 41 days of Good
Conduct Time credit.

Respondent filed a Response to the

Petition on December 17, 2014. (Resp., ECF No. 4).

Petitioner

filed a Reply (ECF No. 5) to which Respondent filed a Sur-Reply
(ECF No. 6).

Petitioner then filed a final letter in response

to the sur-reply. (Pet’r’s Resp. ECF No. 7).
This motion is decided without oral argument pursuant to
Federal Rule of Civil Procedure 78.

For the reasons stated

below, the motion will be denied.
I.

BACKGROUND

On May 7, 2008, Petitioner was sentenced in the United
States District Court for the District of New Jersey to 90

months incarceration, with five years of supervised release, for
Conspiracy to Distribute and Possess with Intent to Distribute
Methamphetamine, in violation of 21 U.S.C. § 846 and 21 U.S.C.
§§ 841(A)(1) and (B)(1)(A).

On September 11, 2013, Petitioner

was transferred to a Residential Reentry Center (“RRC”).

On

December 24, 2013, Petitioner received a pass to leave the RRC
so that he could attend Christmas dinner with his family.

Upon

his return to the RRC on December 25, 2013, Petitioner was
required to undergo a urinalysis test to which he tested
positive for opiates.
On January 2, 2014, Petitioner received notice of a Center
Disciplinary Committee (“CDC”) Hearing scheduled for January 3,
2014.

Petitioner requested that Latasha Cryor appear at the

hearing as his staff representative.

At the hearing, which

ultimately occurred on January 6, 2014, Ms. Cryor was not
present.

Nevertheless, the hearing proceeded.

At the hearing,

Petitioner pointed out errors in the Incident Report.
Specifically, the report listed the date and time of the
infraction as “12/26/13” at “12:19 pm.” (Resp’t’s Ex. 5 at 2
“Incident Report”, ECF No. 4-6), as opposed to a time on
December 25th when he initially returned to the RRC.

The

hearing was then suspended.
On January 7, 2014, Petitioner received a revised Incident
Report which correctly reported the date and time of the alleged

infraction as “12/25/13 at 21:47 pm.” Id.
sign for delivery of this Report.

Petitioner refused to

On January 9, 2014,

Petitioner received notice of a second hearing to be held on
January 10, 2014; however, he waived his right to 24-hour Notice
and the hearing took place on January 9 around 5:45 p.m.

The

staff representative requested by Petitioner was unavailable and
Petitioner rejected the alternative representative offered.
During the CDC hearing on January 9, Petitioner indicated
that he had not ingested opiates, but instead had consumed
“bagel chips which have poppy seeds on it.” (Resp’t’s Ex. 9 at 2
“Center Discipline Committee Report,” ECF No. 4-10).

After

considering Petitioner’s statements, the Incident Report, the
chain of custody and the urinalysis results, the CDC found that
Petitioner committed prohibited act 112 and forwarded the matter
to the Discipline Hearing Officer (“DHO”) for review.
Pursuant to Bureau of Prisons (“BOP”) policy, the DHO then
certified that the CDC procedure complied with BOP policy and
the Wolff requirements, and found that the imposition of
sanctions for the infraction was supported by the evidence, as
reflected by the DHO's signature on the CDC report. Id.; see
also FEDERAL BUREAU
CORRECTIONS

MANUAL,

OF

PRISONS, PROGRAM STATEMENT 7300.09, COMMUNITY

5.7 20 (1998).

In so finding, on January 30,

2014, the DHO imposed a sanction of 41 days of good conduct time
and removal from the RDAP program.

The removal from the program

resulted in the loss of a one-year sentence reduction authorized
by 18 U.S.C. § 3621(3).
Petitioner states that additional urine tests subsequent to
the alleged infraction date — in December of 2013 and January of
2014 — returned negative results.

Petitioner also requested a

hair follicle test, the cost of which he offered to pay.
Petitioner appealed and alleged misconduct by officials.
His appeals were denied.

Respondents concede that Petitioner

has exhausted his administrative remedies.
II.

STANDARD OF REVIEW

A habeas corpus petition is the proper mechanism for a
federal prisoner to challenge the “fact or duration” of his
confinement, Preiser v. Rodriguez, 411 U.S. 475, 498–99 (1973),
including challenges to prison disciplinary proceedings that
affect the length of confinement, such as deprivation of good
time credits, Muhammad v. Close, 540 U.S. 749 (2004) and Edwards
v. Balisok, 520 U.S. 641 (1997). See also Wilkinson v. Dotson,
544 U.S. 74 (2005).

A challenge to a disciplinary action

resulting in the loss of good conduct time is properly brought
pursuant to § 2241, “as the action could affect the duration of
the petitioner's sentence.” Queen v. Miner, 530 F.3d 253, 254 n.
2 (3d Cir. 2008).

III. JURISDICTION
This Court has subject matter jurisdiction under § 2241 to
consider the instant petition because Petitioner was
incarcerated in New Jersey when he filed the Petition, and he
challenges the loss of good time credits and one-year sentence
reduction. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235,
241–44 (3d Cir. 2005); Barden v. Keohane, 921 F.2d 476, 478–79
(3d Cir. 1990).
IV.

DISCUSSION

A prisoner has a liberty interest in good time credits.
Denny v. Schultz, 708 F.3d 140, 143 (3d Cir. 2013).

A

prisoner's interest in good time credits “entitle[s] him to
those minimum procedures appropriate under the circumstances and
required by the Due Process Clause to insure that the statecreated right is not arbitrarily abrogated.” Wolff v. McDonnell,
418 U.S. 539, 557, 94 S.Ct. 2963, 2963 41 L.Ed.2d 935 (1974).
In evaluating prisoners' due process rights, courts must be
sensitive to the “intricate balancing of prison management
concerns with prisoners' liberty.” Denny, 708 F.3d at 144
(quoting Sandin v. Conner, 515 U.S. 472, 478, 115 S.Ct. 2293,
132 L.Ed.2d 418 (1995)).

The Supreme Court has held that

“revocation of good time does not comport with the minimum
requirements of procedural due process unless the findings of
the prison disciplinary board are supported by some evidence in

the record.” Superintendent v. Hill, 472 U.S. 445, 454, 105
S.Ct. 2768, 86 L.Ed.2d 356 (1985) (internal quotation marks and
citation omitted).

The Hill standard 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. See Thompson v. Owens, 889 F.2d 500, 502 (3d
Cir. 1989).

The relevant inquiry is whether “there is any

evidence in the record that could support the conclusion reached
by the disciplinary board.” Hill, 472 U.S. at 455–56, 105 S.Ct.
at 2774.
Based on the record before the Court, it is evident that
the procedures enunciated in Wolff, supra, were complied with,
and that there was sufficient evidence to support the finding
that Petitioner committed the infraction in accordance with
Hill, supra.

Accordingly, the Petition will be denied.

A. Procedural Due Process
Based on the procedural safeguards set forth in Wolff,
Petitioner asserts that his rights to procedural due process
were violated in the following ways: (1) he was not provided
with written notice of the charges against him at least 24 hours
prior to the disciplinary hearing; (2) he did not have the
opportunity to call witnesses and to present evidence in his
defense; (3) he was not afforded the opportunity to have staff
representation during the disciplinary hearing; (4) he was not

provided with a written statement of the evidence relied on and
the reasons for the disciplinary action; and (5) the decisionmaking body was not impartial.
1. 24-Hour Advanced Written Notice of the Charges
With respect to Petitioner’s allegation that he was not
presented with the charges against him 24 hours in advance of
the disciplinary hearing, his claim must be denied.

Petitioner

asserts that he received only advanced notice of the upcoming
disciplinary hearing, and not the specific charges against him.
He further states that he did not see the initial Incident
Report until January 6, 2014 during his CDC hearing.

Respondent

does not directly respond to this allegation.
Although Petitioner did not receive 24-hours’ notice, the
January 6 hearing was ultimately suspended and Petitioner
concedes that he received proper notice of the charges against
him in advance of the hearing scheduled for January 10.

Thus,

even assuming a procedural error in failing to provide
Petitioner with 24-hour notice of the specific charges against
him in advance of the January 6 hearing, no prejudice resulted.
Accordingly, Petitioner’s rights were not violated in this
respect and his argument fails. See Obiegbu v. Werlinger, 488 F.
App’x 585 (3d Cir. 2012) (citing Wilson v. Ashcroft, 350 F.3d
377, 380–81 (3d Cir. 2003) (finding no due process violation in
the absence of prejudice)).

2. The Right to Call Witnesses and Present Evidence
Petitioner acknowledges that he did not call any witnesses.
However, he states that he was not permitted to introduce two
types of evidence.

First, Petitioner states that, in support of

his theory that his consumption of poppy seed bagel chips
resulted in the positive urinalysis test, he submitted a picture
of his family’s buffet table, a photocopy of the bag and list of
ingredients, and a document explaining how the ingestion of
poppy seeds could cause a false positive in a urinalysis test.
Additionally, Petitioner states that, at the request of the CDC,
he provided a written statement regarding this evidence to a
member of RRC staff the morning after the January 9 CDC hearing.
Petitioner states that he is unsure whether this evidence was
ever submitted to, or considered by the DHO.

He points out that

the DHO’s Report does not mention the evidence.
Petitioner’s argument fails.

“Because Petitioner was

housed at a halfway house at the time of his incident, due
process is afforded at a CDC hearing, not a DHO hearing.”
Manfredi v. U.S., Civ. No. 12-1905, 2012 WL 5880343 (D.N.J. Nov.
20, 2012) (collecting cases).

As set forth above, Petitioner

explains that he did, in fact, present evidence at the January
9, 2014 CDC hearing.
this respect.

Thus, he was not denied due process in

To the extent Petitioner asserts that he was denied due
process because he was not permitted to re-submit this evidence
to the DHO or to attend the DHO hearing, Petitioner’s argument
fails because he was not entitled to be present at the DHO
hearing. See id.; see also Rini v. Nash, Civ. No. 05-2202, 2005
WL 2033689 at *3 (D.N.J. Aug. 22, 2005) (“Wolff does not mandate
that [p]etitioner be granted two hearings[,] one before the CDC
and one before the DHO.”).
With respect to Petitioner’s claim that he was not
permitted to submit to a hair follicle test, his argument again
fails.

The procedural safeguards of Wolff do not guarantee a

prisoner the right to present any evidence he wishes.
Additionally, with specific respect to second, independent lab
tests, courts have held that prisoners do not have a due process
right to engage in secondary testing. See Manfredi, 2012 WL
5880343 at *6 (collecting cases).

Accordingly, Petitioner’s due

process rights were not violated because he was denied
permission to obtain a hair follicle test.
3. The right to staff representation
Petitioner contends that he twice requested to have Latasha
Cryor appear as his staff representative but that he was
informed that her presence was not necessary as she could be
present at any subsequent DHO hearing.

Petitioner states that

he was misinformed and that he was prejudiced by the absence of
a staff representative.
The record shows that Petitioner was offered a
representative at the January 9 hearing but that he rejected
this offer. (Resp’t’s Ex. 7 “Notice of Center Discipline
Committee Hearing,” ECF No. 4-8).
due process.

Therefore, he was not denied

Any misunderstanding Petitioner may have had about

his preferred staff representative’s presence at subsequent
hearings is irrelevant to his due process claim because he
cannot show prejudice. See Obiegbu, 488 F. App’x 585.

The fact

remains that Petitioner was given the option of having a staff
representative present at his hearing, but he voluntarily
elected to move forward without representation.
4. The right to be provided with a written statement of the
evidence relied upon and the reasons for the disciplinary
action
Petitioner contends that he was not provided a copy of the
DHO’s Report in a timely manner.

However, Petitioner does not

point to any source of law which sets time limits for delivery
of DHO Reports to prisoners or which indicates that delivery
beyond a specific time limit constitutes a due process
violation.

Furthermore, Petitioner was able to appeal the

decision and pursue administrative remedies; therefore, he was
not prejudiced by any such delay.

Petitioner further asserts that he was denied due process
because, although the Report contains the CDC’s findings, there
is no evidence that the DHO conducted an independent
investigation as required by the BOP Program Statement 5270.09,
Inmate Discipline Program.

However, because Petitioner was

confined at an RRC at the time of the incident, he was not
entitled to independent review by the DHO. See FEDERAL BUREAU

OF

PRISONS, PROGRAM STATEMENT 5270.09, INMATE DISCIPLINE PROGRAM, PRINCIPLES 3
(2011) (“Community Corrections Managers may take disciplinary
action on inmates in contract RRC’s.”).
Rather, the Federal Bureau of Prison Program Statement
makes clear that he was entitled only to have DHO review and
certify that the CDC complied with Wolff.

As courts in this

district have explained:
In its Program Statement 7300.09, Community
Corrections Manual, the Bureau of Prisons (“BOP”)
provides for a slightly modified procedure for
prisoners confined to a Residential ReEntry Center in
anticipation of release. That is, for RRC prisoners,
the in-person disciplinary hearing is conducted before
the RRC's Center Disciplinary Committee. The
recommendation of the CDC is forwarded to the
Disciplinary Hearing Officer for review, certification
that the CDC procedure complied with BOP policy and
the Wolff requirements, and imposition of sanctions
for any infractions found to be supported by the
evidence, all as reflected by the DHO's signature on
the CDC report.
Bellamy v. Hollingsworth, Civ. No. 13-7783, 2014 WL 714905 at *5
(D.N.J. Feb. 21, 2014); FEDERAL BUREAU

OF

PRISONS, PROGRAM STATEMENT

7300.09, COMMUNITY CORRECTIONS MANUAL, 5.7 20 (1998).

In this case,

the DHO reviewed, certified, imposed a final action and signed
and dated the CDC report which contained the basis for its
findings.

Accordingly, Petitioner was not denied due process.

5. The decision-making body must be impartial
Petitioner asserts that the CDC hearing officer made
intentional misrepresentations to him with respect to the staff
representative’s ability to appear a subsequent DHO hearing.

To

the extent the CDC hearing officer made inaccurate statements to
Petitioner regarding the ability of a staff representative to
appear at a subsequent hearing, as discussed above, any such
error was harmless because Petitioner was afforded the
opportunity to have a staff representative at his CDC hearing.
Additionally, any such misstatements do not call into
question the CDC hearing officer’s impartiality, nor do they
establish that the CDC hearing officer had any preexisting
animosity towards the Petitioner.

Likewise, the fact that the

CDC suspended the initial hearing to investigate the errors in
the initial Incident Report, offered alternative staff
representation to Petitioner, and — according to Petitioner —
requested a written statement regarding Petitioner’s evidence,
undermines Petitioner’s claim that he was not provided with an
impartial decision-maker.

It is also worth noting that the CDC report indicates that
the CDC was comprised of two individuals: a Chairperson and a
Member.

Petitioner makes no allegations with respect to the

Chairperson, thus, his claim that he did not receive an
impartial disciplinary tribunal is further weakened.

Lastly,

the Court notes that, pursuant to Wolff, the impartial decisionmaking body must exclude “those [prison] officials who have a
direct personal or otherwise substantial involvement ... in the
circumstances underlying the charge from sitting on the
disciplinary body.” Meyers v. Alldredge, 492 F.2d 296, 306 (3d
Cir. 1974).

Here, Petitioner does not allege, and it does not

appear, that either of the CDC hearing officers were involved in
the investigation or the circumstances underlying the charge
against Petitioner.
Ultimately, the record shows that the CDC’s findings were
based on sufficient evidence and there is nothing before the
Court to suggest that Petitioner was not afforded an impartial
decision-maker as required by Wolff. Lasko v. Holt, 334 F. App’x
474 (3d Cir. 2009) (generalized critiques without substantive
support are insufficient to demonstrate partiality under
Meyers).
B. Other Evidence
Petitioner contends that there exist other evidence that
should have been considered by the DHO.

As an initial matter,

as explained above, for RRC prisoners, BOP policy requires only
that the DHO review the CDC report and verify that the CDC
procedure complied with BOP policy and the Wolff requirements.
Therefore, Petitioner had no due process right to submit
additional evidence to the DHO.

Nevertheless, in an abundance

of caution, the Court will further address his concerns with
respect to this additional evidence.
1. The Urine Sample Number
Petitioner points out that there are two numbers associated
with his urine sample in the CDC Report.

Specifically, the lab

report from Parkway Clinical Laboratories indicates a Sample ID
number of 374914 and a Specimen ID number of 36043. (Resp’t’s
Ex. 9 at 4, ECF No. 4-10).

Petitioner contends that this

variation supports his assertion that the urine sample in
question was misidentified.

However, as Respondent points out,

this argument could be seen as contradicting Petitioner’s
assertion that the positive urinalysis test was a result of his
consumption of poppy seed bagel chips.
Respondent fails to explain, with certainty, the purpose of
the two different numbers or the distinction between the
Specimen ID number and the Sample ID number.

Nevertheless, the

presence of the two different numbers does not diminish the
strength of the positive urinalysis results because both numbers
appear on the lab report.

More to the point, this Court need not reevaluate evidence
which was before the CDC. See Thompson, 899 F.2d at 502.
Rather, it must decide whether the findings of the prison
disciplinary board are supported by some evidence in the record.
Hill, 472 U.S. at 455-56, 105 S.Ct. 2786.

Although the presence

of both a Sample ID number and a Specimen ID number causes some
confusion, there is ample evidence in the record — including
Petitioner’s own statements explaining the positive urinalysis
results — to support the CDC’s decision.

Therefore, Petitioner

was not denied due process.
2. Availability of Narcotics at the LMS RRC
Petitioner states that narcotics and other contraband are
readily available at the RRC where he was confined.

He

indicates that his urine sample could have been substituted by
an RRC officer as part of the fraudulent activity of providing
inmates with clean urine samples.

There is nothing in the

record to suggest that this occurred.

Petitioner signed the

chain of custody report for the urine sample.

Petitioner had

the opportunity to raise this argument at his CDC hearing and he
does not explain in his Petition how the availability of drugs
at the RRC denied him due process at his CDC hearing or how it
negates the evidence against him.

V.

CONCLUSION

For the reasons set forth above, Petitioner’s request for a
writ of habeas corpus will be denied.

An appropriate Order will

follow.

___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: April 29, 2015
At Camden, New Jersey