ALMANZAR v. HOLLINGSWORTH et al

Filing 10

OPINION FILED. Signed by Judge Jerome B. Simandle on 10/2/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ROGER JOSE ALMANZAR,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 15-6244 (JBS)

v.
J. HOLLINGSWORTH,

OPINION
Respondent.

APPEARANCES:
ROGER JOSE ALMANZAR, Petitioner pro se
67686-054
FCI Fort Dix
PO Box 2000
Fort Dix, New Jersey 08640
CAROLINE A. SADLOWSKI, AUSA
Office of the U.S. Attorney
970 Broad Street
Newark, New Jersey 07102
IRENE E. DOWDY, AUSA
Office of the U.S. Attorney
401 Market Street
Fourth Floor
PO Box 2098
Camden, New Jersey 08101
Attorneys for Respondent J. Hollingsworth
CHRISTINA SAETTA CLARK
Senior Attorney Advisor
Federal Bureau of Prisons
Of Counsel

SIMANDLE, District Judge:
INTRODUCTION
This matter comes before the Court on Roger Jose Almanzar’s
petition for writ of habeas corpus challenging a disciplinary
proceeding conducted by the Bureau of Prisons (“BOP”). Petition,
Docket Entry 3. Respondent J. Hollingsworth opposes the
petition. Answer, Docket Entry 5. The petition is being decided
on the papers pursuant to Fed. R. Civ. Pro. 78(b). For the
reasons set forth below, the petition is denied.
BACKGROUND
Petitioner, a convicted and sentenced federal prisoner, was
incarcerated at USP Canaan, Pennsylvania on January 6, 2015.
Petition at 2. According to Incident Report 2668415, a staff
member searched Petitioner’s assigned locker, 003 Upper, around
8:05 a.m. Incident Report, Declaration of Tara Moran (“Moran
Dec.”) Exhibit 4 § 11. During the search, the staff member
discovered “a plastic bottle containing an unknown substance.”
Id. He tested the substance using Alco-Sensor III device number
1213955.1 The device “produced a reading of .061 indicating the
presence of alcohol.” Id. The bottle was secured. Petitioner was

1

“An Alco-Sensor III is a device designed to measure the level
of alcohol in a liquid.” Mills v. Nash, No. 04-6251, 2006 WL
477030, at *1 (D.N.J. Feb. 27, 2006) (citing Smith v. Menifee,
2003 WL 1872668 (S.D.N.Y. April 10, 2003)).
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charged with a violation of Code 113, possession of intoxicants.2
Id. §§ 9-10. Lieutenant Hagemeyer delivered a copy of the
incident report to Petitioner at 9:00 a.m. and read Petitioner
his legal rights. Id. §§ 14, 23. Petitioner stated: “It’s not
mine.” Id. § 17. The report was ultimately referred to
Discipline Hearing Officer (“DHO”) Marc Renda for a hearing. Id.
§ 20. Petitioner did not request that any witnesses or evidence
be presented. Id. § 25. He refused to sign the Inmate Rights
Form. Moran Dec. Exhibit 5.
The hearing was originally scheduled for January 16, 2015
but was postponed when Petitioner asked for a staff
representative. A. Rivera, Cook Supervisor, agreed to serve as
Petitioner’s representative and acknowledged his obligations.
The hearing was rescheduled for January 21, 2015. DHO Report,
Moran Dec. Exhibit 8 § I.A. Petitioner appeared at the hearing
with Mr. Rivera and denied possessing alcohol. Petitioner
testified “that his fingerprints would not be present on the
plastic bottle which contained tomato sauce, which he was going
to cook with. He further admitted that he had obtained the
tomato sauce from the ‘warehouse.’ He stated that he planned to
cook with said tomato sauce.” Brief in Support at 3. He also
stated “If you get finger prints mine won’t be on it. You can

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See 28 C.F.R. § 541.3.
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breathalyze me. If you check the cameras maybe you can see who
put it there. I had one bottle outside my locker which had
tomato sauce in it.” DHO Report § III.B. Petitioner indicated he
did not know how the bottle got in his locker, who would have
put it there, or why someone would have done so. Id.
The DHO considered Petitioner’s testimony, the Incident
Report, and the photograph of the bottle and Alco-Sensor reading
and found that the greater weight of the evidence indicated
Petitioner had committed the offense of possessing an
intoxicant. Id. §§ III.D, IV. The DHO determined Petitioner’s
testimony “fail[ed] to exculpate him of the charge.” Id. § V.
Although Petitioner did not ask prison officials to test the
bottle for fingerprints prior to the hearing, the DHO found that
fingerprinting the bottle was neither required nor necessary
because Petitioner was responsible for the contents of his
assigned area3 even if his fingerprints were not on the bottle.
Id. The DHO further concluded a breathalyzer test “would be
equally nugatory and unavailing” because the charge did not
depend on Petitioner imbibing the alcohol but “whether a
substance testing positive for intoxicants was [discovered] in
[Petitioner’s] assigned living area.” Id. The DHO noted that

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“[A] prisoner's area at a minimum includes the prisoner's cell
as well as any other space accessible from within the cell.”
Denny v. Schultz, 708 F.3d 140, 146 (3d Cir. 2013).
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Petitioner’s admission that he took a bottle of tomato sauce
from the warehouse to cook with was an admission of stealing
and/or possession of stolen property. Id. The DHO also rejected
Petitioner’s request to review the cameras in the living area
because under the doctrine of constructive possession, “even if
it was demonstrated another inmate placed the bottle in
[Petitioner’s] locker it would be immaterial. [Petitioner] also
has a responsibility to keep his living area free of
contraband.” Id.
The DHO sustained the charges against Petitioner and
sanctioned him by disallowing 40 days of good credit time in
order to “demonstrate the seriousness of [Petitioner’s] actions”
and to deter Petitioner and other inmates in the future. Id. §
VII. Petitioner purportedly received a copy of the DHO Report on
January 22, 2015. Id.
ANALYSIS
Petitioner argues he was denied due process of law in the
course of his disciplinary hearing because the evidence was
insufficient to support the charges.4

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The petition’s other points set forth the due process standard
and BOP disciplinary hearing procedures.
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A. Exhaustion of Administrative Remedies
Respondent argues the petition should be dismissed for
failure to exhaust administrative remedies. Petitioner asserts
the BOP incorrectly denied his appeals as time-barred.
Petitioner filed an administrative appeal on March 24,
2015. The BOP’s Regional Office denied the appeal as time-barred
because it was filed more than 20 days after Petitioner received
a copy of the DHO Report on January 22, 2015. Moran Dec. ¶ 5;
Moran Exhibit 2. See also 28 C.F.R. § 542.14(a),(d)(2). It
permitted Petitioner to resubmit his appeal with an explanation
from his Unit Team as to why the appeal was late. Petitioner
appealed that decision to the Central Office, but his appeal was
rejected as untimely on June 11, 2015. Moran Dec. ¶ 5; Moran
Exhibit 2. He continued to file appeals with the Regional
Office, all of which were dismissed as untimely.5 Moran Dec. ¶ 5.
“Federal prisoners are ordinarily required to exhaust their
administrative remedies before petitioning for a writ of habeas
corpus pursuant to § 2241.” Moscato v. Fed. Bureau of Prisons,
98 F.3d 757, 760 (3d Cir. 1996). “If a petitioner has failed to
exhaust his administrative remedies prior to filing a § 2241
petition, the District Court may in its discretion either
‘excuse the faulty exhaustion and reach the merits, or require

5

Neither party submitted copies of Petitioner’s appeals or
agency responses as part of the record.
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the petitioner to exhaust his administrative remedies before
proceeding in court.’” Ridley v. Smith, 179 F. App'x 109, 111
(3d Cir. 2006) (quoting Brown v. Rison, 895 F.2d 533, 535 (9th
Cir. 1990), abrogated in part on other grounds by Reno v. Koray,
515 U.S. 506 (1995)).
Exhaustion is an affirmative defense, not a jurisdictional
requirement. Id. Here, Petitioner has submitted some
documentation supporting his assertion that he did not receive a
copy of the DHO’s written decision until March 16, 2015, namely
a copy of the DHO Report containing a handwritten note from
Petitioner’s Fort Dix case manager at the bottom: “3/16/15 copy
given to I/M Almanzar. I/M states he never rec. copy. Call me at
Ft. Dix if you have any questions.” Traverse, Docket Entry 9 at
6. As there is a question as to whether Petitioner’s
administrative appeal was timely, and therefore improperly
dismissed by the BOP as untimely, the Court will exercise its
discretion to address the petition on its merits.
B. Due Process
“Federal prisoners serving a term of imprisonment of more
than one year have a statutory right to receive credit toward
their sentence for good conduct. When such a statutorily created
right exists, a prisoner has a constitutionally protected
liberty interest in good time credit.” Denny v. Schultz, 708
F.3d 140, 143-44 (3d Cir. 2013) (internal citations and
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quotation marks omitted). “Due process protections attach in
prison disciplinary proceedings in which the loss of good-time
credits is at stake.” McGee v. Schism, 463 F. App’x 61, 63 (3d
Cir. 2013) (per curiam). Petitioner lost 40 days of good time
credit as a sanction. He is therefore entitled to the
protections of the Due Process Clause.
In assessing whether disciplinary proceedings complied with
the Due Process Clause, the Court considers the factors
enumerated by the Supreme Court in Wolff v. McDonnell, 418 U.S.
539 (1974). Under Wolff, inmates must receive a hearing before
an impartial tribunal and “(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,
Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985)
(citing Wolff, 418 U.S. at 563-67). Inmates should also “be free
to seek the aid of a fellow inmate, or if that is forbidden, to
have adequate substitute aid in the form of help from the staff
or from a sufficiently competent inmate designated by the staff”
if they are illiterate or “the complexity of the issue makes it
unlikely that the inmate will be able to collect and present the
evidence necessary for an adequate comprehension of the case the
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issues are complex[.]” Wolff, 418 U.S. at 570.

Moreover, the

“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.” Hill, 472 U.S. at 454 (quoting Wolff, 418 U.S. at
558).
Petitioner’s sole challenge to the hearing process is that
“the evidence submitted against Petitioner was insufficient to
sustain the sanctions imposed. No admissible evidence was
submitted that would support the finding that the substance
contained in the bottle was an alcoholic substance.” Brief in
Support at 12. He argues the Alco-Sensor reading is insufficient
because there was no evidence submitted regarding calibration
tests or monthly checks or that the liquid was testing in
accordance with the company brochure.
In reviewing a disciplinary proceeding, the Court’s
function is not to decide whether it would have reached the same
decision, but to consider “whether there is any evidence in the
record that could support the conclusion reached by the
disciplinary board.” Hill, 472 U.S. 445, 455-56 (1985) (emphasis
added). See also Denny v. Schultz, 708 F.3d 140, 145 (3d Cir.
2013) (“[A] reviewing court need only find that the DHO's
decision had ‘some basis in fact’ in order to affirm the
decision as comporting with the Due Process Clause.”). This
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review is minimal, and “[a] challenge to the weight accorded
evidence is not relevant to the question of whether the decision
was supported by ‘some evidence’ because the standard does not
require ‘weighing of the evidence.’” McCarthy v. Warden
Lewisburg USP, 631 F. App'x 84, 86-87 (3d Cir. 2015) (quoting
Hill, 472 U.S. at 455). “Once the reviewing court determines
that there is some evidence in the record to support the finding
of the hearing officer, an inmate's challenge to the weighing of
the evidence must be rejected.” Cardona v. Lewisburg, 551 F.
App'x 633, 637 (3d Cir. 2014).
To the extent the challenge to the sufficiency of the
evidence can be construed as objecting to the DHO’s denying
Petitioner’s request for breathalyzer and fingerprint testing
and for review of the cameras, the Court finds habeas relief is
not warranted. “It is clearly established that due process
requires that an inmate be permitted to ‘present documentary
evidence in his defense when permitting him to do so will not be
unduly hazardous to institutional safety or correctional
goals.’” Burns v. Pa. Dep't of Corr., 642 F.3d 163, 173 (3d Cir.
2011) (quoting Wolff, 418 U.S. at 566). “Although prison
officials are afforded deference regarding whether evidence
might be unduly hazardous or undermine institutional safety or
correctional goals, ‘the discretion afforded prison officials is
not without limits.’” Id. (quoting Young v. Kann, 926 F.2d 1396,
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1400 (3d Cir. 1991)). Hearing officers must make an independent
determination of requested evidence’s relevancy. Id. at 175
n.11.
Petitioner requested the DHO check Petitioner’s breath for
alcohol, check the bottle for fingerprints, and review cameras
surveilling the living area to see who may have placed the
bottle in Petitioner’s locker. The DHO declined to order a
breathalyzer test because whether Petitioner drank the alcohol
was irrelevant to the question of whether he possessed it. The
Court finds no constitutional error in this decision. Petitioner
requested the breathalyzer test at his hearing on January 21,
2015. The bottle was confiscated on January 6, 2015. See
Incident Report § 11. A breathalyzer test on Petitioner several
weeks after the incident date would have no possible bearing on
whether Petitioner possessed the alcohol on January 6. The DHO’s
decision that breathalyzer evidence would not be relevant was
not arbitrary or capricious.
The DHO denied Petitioner’s request for fingerprint testing
and to review the camera footage concluding it did not matter
whether Petitioner’s fingerprints were on the bottle because
[t]he rules of constructive possession apply here. All
inmates are responsible for all property and contraband
in their possession, dominion, and that of which they
exercise control. A bottle of intoxicants, which was
tested in accord with agency procedure and protocol, was
discovered in ALMANZAR’s locker (an area of which he

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exercised daily accessibility) and well-exceeded the
minimum threshold reading for an intoxicant.
DHO Report § V. In other words, Petitioner was responsible for
the bottle’s contents simply because it was found in his locker.
It did not even matter if Petitioner was the one who put it
there:
Specific, to ALMANZAR’s request to review media at the
“SCP” demonstrating “Maybe he threw it in there” and
“maybe you can see who put it in there” was also rejected
due [to] mootness. . . . [T]he rules of constructive
possession apply here, and even if it was demonstrated
another inmate placed the bottle in ALMANZAR’s locker it
would be immaterial. ALMANZAR also has a responsibility
to keep his living area free of contraband.
Id.
Fingerprint evidence and the camera footage could be
relevant because finding, or not finding, Petitioner’s
fingerprints on the bottle or seeing another person place the
bottle into Petitioner’s locker would tend to make Petitioner’s
possession of the bottle more or less probable. See Fed. R.
Evid. 401. However, under these particular facts any error in
not reviewing the footage or testing for fingerprints is
ultimately harmless because the doctrine of collective
responsibility, i.e., constructive possession, set forth by the
DHO supports the finding that Petitioner possessed the bottle.
More significantly, Petitioner made key admissions supporting a
finding of possession.

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In describing the collective responsibility theory, the
Third Circuit stated:
In a shared cell, all parts of the cell are equally
accessible to each prisoner housed in the cell. Thus,
each individual prisoner is responsible for keeping the
entire cell free from contraband. Because each prisoner
in a shared cell has an affirmative responsibility to
keep the entire cell, and all other space accessible
from within the cell, free from contraband, it follows
that
any
contraband
found
within
the
cell
is
constructively possessed by each of the inmates housed
in that cell. Thus, the mere discovery of contraband in
a shared cell constitutes “some evidence” that each
prisoner in that cell possessed the contraband.
Denny v. Schultz, 708 F.3d 140, 146 (3d Cir. 2013). Here, the
bottle was found in or in the area near Petitioner’s assigned
locker.6 Petitioner also admitted certain facts during the
hearing that sufficiently show he possessed the bottle that was
recovered from his living area. Petitioner admitted he took a
bottle of tomato sauce from the warehouse in order to cook with
it. DHO Report § V; Brief in Support at 3. He also admitted that
he exercised control over the bottle by putting it under a table
in his living area. DHO Report § V; Brief in Support at 5.
Furthermore, he implicitly admitted the bottle containing tomato
sauce was the same bottle that tested positive for alcohol when
he argued on appeal that he did not know “that tomato sauce

6

Petitioner argued that the bottle was in fact recovered from
just outside of his locker. The Court need not conduct a hearing
to resolve this fact question because under either scenario the
bottle was recovered from an area over which Petitioner had
control.
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would turn ‘alcoholic’ in one-two weeks.” Brief in Support at 56. Even if someone other than Petitioner physically placed the
bottle in his locker, Petitioner admitted he brought the bottle
that later tested positive for alcohol into his living area
himself. Therefore, any error was harmless because of the
collective responsibility theory and Petitioner admitted enough
facts to support a finding that he possessed the bottle.
The Court further finds that there is some evidence to
support the conclusion that Petitioner possessed an intoxicant.
As discussed above, Petitioner admitted he personally brought
the bottle into his living area. The Alco-Sensor reading, as
memorialized in the photograph attached to the DHO Report and in
the reporting employee’s statement, is some evidence that the
substance in the bottle contained alcohol. Moreover, the DHO
submitted a declaration to this Court affirming that the device
used to test the substance was calibrated in accordance with the
manual on a monthly basis, with the most recent calibration
prior to the incident being on December 1, 2014. Declaration of
Marc Renda (“Renda Dec.”) ¶ 5; Alco-Sensor 1213955 Calibration
Log, Renda Exhibit 3. A reading of 0.02 is considered a positive
result for alcohol. USP Canaan Institution Supplement, Renda
Exhibit 1 at ¶ 4(f); BOP Program Statement 6590.07(8) (Dec. 31,
1996). The substance in the bottle produced a reading of 0.61.
Incident Report § 11. BOP policies permit the use of the Alco14

Sensor to test liquids, see BOP Program Statement 6590.07(9),
and the manual for the sensor permits users to test the accuracy
of the device by using a “wet bath simulator” consisting of
mixture of water and alcohol with a known alcohol concentration.
Alco-Sensor III Operator’s Manual, Renda Exhibit 4 at 20-24.
This indicates the Alco-Sensor can accurately measure the
alcoholic content of liquids. The DHO’s finding that Petitioner
possessed an intoxicant, Code 113, is supported by some
evidence. The Court therefore upholds the disciplinary findings.
Prohibited acts are categorized according to the severity
of the conduct. Code Level 100s are deemed “Greatest Severity
Level Prohibited Acts.” 28 C.F.R. § 541.3. The loss of 40 days
in good-conduct time is within the permitted sanctions for a
Code 113 violation. 28 C.F.R. § 541.4(b)(1). There is no basis
to overturn the imposed sanctions.
CONCLUSION
For the above stated reasons, the petition is denied. An
accompanying Order will be entered.

October 2, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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