ANGEL v. DEPARTMENT OF JUSTICE, BUREAU OF PRISONS
Filing
6
OPINION. Signed by Judge Renee Marie Bumb on 6/28/2016. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MATTHEW ANGEL,
Petitioner,
v.
DEPT. OF JUSTICE,
BUREAU OF PRISONS,
Respondent.
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Civil Action No. 15-7514(RMB)
OPINION
BUMB, District Judge
Petitioner, presently incarcerated in FCI Fort Dix, filed a
Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 on
October 15, 2015. (ECF No. 1.) A federal district court has
jurisdiction
under
28
U.S.C.
§
2241
over
a
constitutional
challenge to a prison disciplinary hearing that resulted in loss
of good conduct time. See Woodall v. Fed. Bureau of Prisons, 432
F.3d 235, 242-43 (3d Cir. 2005) (citing Jiminian v. Nash, 245
F.3d 144 (2d Cir. 2001) (citing Chambers v. United States, 106
F.3d 472, 474–75 (2d Cir. 1997)).
I.
BACKGROUND
The
result
present
of
petition
Petitioner’s
challenges
disciplinary
1
sanctions
hearing
at
imposed
the
as
a
Federal
Correctional Institution in Fort Dix, New Jersey. (Pet., ECF No.
1.) Petitioner asserted two grounds for relief: (1) Code Section
108, as applied to Petitioner for possession of an MP3 player,
is unconstitutionally void for vagueness; and (2) Petitioner was
singled out for disparate treatment because three other inmates
received lesser sanctions for possession of MP3 players. (Pet.,
ECF No. 1 at 2-3.)
Petitioner asserted that he began the administrative remedy
process but did not complete it because he did not resubmit his
appeal to the Central Office in corrected format. (Pet., ECF No.
1 at 2.) He chose not to complete his administrative remedies
because he was “scheduled to leave Fort Dix December 2015 and
the re-submission and hearing time will make an appeal to the
Federal Court too “short” for purposes of having this matter
considered.” (Id.)
Respondent
filed
an
Answer.
(Respondent’s
Answer
to
Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2241 (“Answer”) (ECF No. 5.) In the Answer, Respondent asserted
the following facts. Petitioner is an inmate in FCI Fort Dix,
and his projected release date, via good conduct time release,
is July 16, 2016. (Moran Decl., Public Information Inmate Data,
Ex. 1, ECF No. 5-2.) Incident Report No. 2695265 was issued to
Petitioner on March 19, 2015. (Moran Decl., Incident Report, Ex.
4, ECF No. 5-5.) The incident report described an incident that
2
occurred
in
the
morning
a
pat
search
performed
player
with
a
32GB
of
on
March
19,
2015,
Petitioner
memory
card.
and
when
an
officer
discovered
When
(Id.)
an
officer
the
MP3
questioned Petitioner, Petitioner retrieved another 4GB memory
card
from
his
locker
and
Petitioner
was
charged
gave
with
it
to
the
Possession,
officer.
(Id.)
Manufacturing,
or
Introduction of a Hazardous Tool (Code 108) and Possession of
Anything Not Authorized (Code 305.) (Id.) The MP3 player found
on Petitioner was not the type authorized by the BOP and sold in
the Commissary. (Moran Decl., ¶2.)
Code 108 is a greatest severity level prohibited act, and
it
includes
telephone,
541.3,
the
pager,
Code
prohibited
authorized
in
or
108.
act,
for
definition
other
Code
retention
hazardous
electronic
305
defined
of
is
as
or
a
tools
device.”
moderate
“possession
receipt
by
28
“portable
C.F.R.
severity
of
the
level
anything
inmate,
§
and
not
not
issued to him through regular channels.” Id., Code 305.
Upon being advised of his right to remain silent during the
disciplinary
process,
Petitioner
said
he
was
guilty
of
the
charges. (Moran Decl., Incident Report, Ex. 4, ECF No. 5-5.) At
the
initial
(“UDC”),
hearing
Petitioner
before
had
no
the
Unit
statement
Discipline
to
make,
and
Committee
he
said
everything was correct. (Id.) The UDC referred the matter to a
Discipline
Hearing
Officer
(“DHO”)
3
for
disposition
and
recommended loss of good conduct time if Petitioner was found
guilty. (Id.) Petitioner was advised of his rights before the
DHO. (Moran Decl., Inmate Rights, Ex. 5, ECF No. 5-6; Notice of
Discipline Hearing, Ex. 6, ECF No. 5-7.)
The DHO hearing was held on April 2, 2015. (Moran Decl.,
DHO Report, Ex. 7, ECF No. 5-8.) Petitioner waived his right to
a staff representative and declined to call any witnesses. (Id.)
He stated, “Everything is true. I accept full responsibility.”
(Id.) The DHO determined that Petitioner was guilty of violating
Code 108. (Id.) The DHO reasoned that Petitioner acknowledged
his possession of an MP3 player containing a memory card, and a
separate
memory
disallowance
of
card.
forty
(Id.)
days
The
good
DHO
imposed
conduct
sanctions
time,
fifteen
of
days
disciplinary segregation (90 days suspended), and a sixty day
commissary restriction. (Id.) The DHO explained the sanctions
were imposed because an MP3 player with recording abilities and
memory card is classified as a hazardous tool. (Id.)
Petitioner appealed the sanctions. (Moran Decl., ¶¶3-5.) He
did
not
Respondent
complete
contends
the
the
administrative
petition
appeals
should
be
process.
dismissed
(Id.)
because
Petitioner failed to exhaust his administrative remedies, and
his claims are now procedurally defaulted. (Answer, ECF No. 5 at
7-8.)
4
Alternatively, Respondent contends Petitioner’s claims fail
on
the
merits
possession
of
because
Code
electronic
108
devices.
generally
(Id.
at
prohibits
9.)
the
Furthermore,
Petitioner has not stated a claim under the Equal Protection
Clause
because
he
has
not
alleged
purposeful
discrimination.
(Id. at 10-11.)
II.
DISCUSSION
A.
Exhaustion
The Third Circuit Court of Appeals has consistently applied
an exhaustion requirement to petitions under 28 U.S.C. § 2241.
Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000.) There is an
exception to the exhaustion requirement if an attempt to obtain
relief is futile or the purposes of exhaustion would not be
served.
Cerverizzo
v.
Yost,
380
F.
App’x
115,
116
(3d
Cir.
2010).
For a federal prisoner to exhaust administrative remedies,
he must: (1) address his complaint to the institution staff; (2)
appeal his complaint to the Regional Director; and (3) appeal to
the National Appeals Administrator in the Central Office of the
BOP. 28 C.F.R. §§ 542.10-542.18 (2015). When an appeal is made
from
a
disciplinary
decision
of
a
DHO,
the
prisoner
is
not
required to first address his complaint to institution staff but
can
proceed
directly
to
the
Regional
Director.
28
C.F.R.
§
542.14(d)(2). Failure to satisfy the BOP’s procedural rules for
5
its
administrative
process
constitutes
a
procedural
default.
Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.
1996).
If
the
default
renders
the
administrative
process
unavailable, the habeas claims are barred absent a showing of
cause and prejudice. (Id. at 761.)
Petitioner
acknowledged
that
he
did
not
complete
the
administrative remedy process because he believed he was due to
be released from FCI Fort Dix in December 2015, and there was
insufficient time to exhaust his administrative remedies before
his
potential
release
date.
It
is
unclear
why
Petitioner
believed he was to be released from FCI Fort Dix in December
2015. The BOP calculated his release date, inclusive of the good
conduct time, as July 16, 2016.
Petitioner was made aware of the formatting problem with
his Central Office appeal on or about July 15, 2015, leaving him
time
to
correct
the
problem.
appeals
process
is
respond
to
appeal
Petitioner
the
complete
resubmitted
Under
if
within
the
the
28
Central
sixty
BP-11
C.F.R.
form
542.18,
Office
calendar
in
§
the
days.
does
the
not
Assuming
correct
format
within a week, he could have completed the administrative remedy
process as early as September 22, 2015. Therefore, exhaustion
was not futile.
Furthermore, Petitioner has not asserted any other reason
to explain why the purposes of exhaustion would not be served in
6
his case or to establish cause and prejudice for the procedural
default. Petitioner’s claims are procedurally barred because it
is
too
late
542.15(a),
claims
to
file
542.14(b),
are
a
proper
BP-11
542.17(b).
procedurally
barred,
form.
Although
the
See
28
C.F.R.
Petitioner’s
Court
will
§
habeas
nonetheless
alternatively address the merits of Petitioner’s claims.
B.
Vagueness Claim
Code 108 defines as a prohibited act:
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 electronic device)
28 C.F.R. § 541.3, Code 108.
Petitioner contends that Code 108, as applied to him, is
unconstitutionally void for vagueness. (Pet., ECF No. 1 at 2.)
First, Petitioner asserts an MP3 player is not a hazardous tool,
it is an entertainment device. (Id.) Second, Petitioner contends
Code
108
should
be
read
in
the
conjunctive,
precluding
a
violation based on possession of an electric device. (Id. at 3.)
Petitioner suggests:
all nouns following hazardous tool refer
back to hazardous tool. To be covered by 108
an electronic device must be a hazardous
electronic tool, such as a stun gun. Not all
7
electronic devices are hazardous tools and
majority are not: radio, tooth-brush, MP3
player which is an entertainment devi[c]e,
etc.
(Pet., ECF No. 1 at 5.)
To
the
contrary,
Respondent
argues
Code
108
generally
prohibits possession of electronic devices. (Answer, ECF No. 5
at 9.) Additionally, Respondent asserts the BOP’s decision to
charge Petitioner with a Code 108 violation for possession of an
unauthorized MP3 player is not plainly erroneous or inconsistent
with BOP regulations. (Id.)
“A statute or regulation must fail for vagueness if it
forbids or requires the doing of an act in terms so vague that
men
of
common
intelligence
must
necessarily
guess
at
its
meaning.’” Robinson v. Warden, 250 F. App’x 462, 464 (3rd Cir.
2007) (quoting Connally v. General Construction Co., 269 U.S.
385, 391 (1926)). A provision is also void for vagueness if it
“authorizes
or
even
encourages
arbitrary
and
discriminatory
enforcement.” Patel v. Zenk, 447 F. App’x 337, 340 (3d Cir.
2011) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)).
“Because
‘it
anticipate,
is
nearly
through
a
impossible
narrowly
for
prison
drawn
authorities
regulation,
to
every
conceivable form of misconduct which threatens prison security,’
we have “reject[ed] the view that the degree of specificity
required of [prison] regulations is as strict in every instance
8
as that required of ordinary criminal sanctions.” Id. (quoting
Meyers v. Alldredge, 492 F.2d 296, 310 (3d Cir. 1974)).
The Court agrees with Petitioner that an electronic device
must
be
a
hazardous
tool
for
possession
of
that
device
to
violate Code 108. However, this does not mean that an MP3 player
cannot constitute a hazardous tool under Code 108. Code 108
describes examples of hazardous tools to include those that pose
a threat to institutional security, and includes in a list of
examples a telephone, pager “and other electronic device.”
The incident report makes clear that the particular MP3
player
at
issue
was
contraband
because
it
had
recording
capabilities, and Petitioner also possessed an additional memory
card for the player. (Moran Decl., Incident Report, Ex. 4.) An
MP3 player with recording capabilities and memory could be used
to record and save messages, which in turn could be used for
planning
escapes
institution.
See
or
planning
e.g.
Ausberry
other
v.
disturbances
Grondolsky,
Civil
in
the
No.
08-
4136(RMB), 2008 WL 4225174, at *5 (D.N.J. Sept. 9, 2008) (DHO
explained MP3 players received from outside the prison could be
used to record messages to arrange escapes or assaults.) Men of
common
intelligence
and
understanding
would
understand
that
possession of an MP3 player, not of the type authorized by the
BOP and sold in the Commissary, may be sanctioned under Code 108
as a threat to institutional security.
9
“An
agency's
interpretation
of
its
own
regulation
is
‘controlling ... unless it is plainly erroneous or inconsistent
with the regulation.’” Chong v. Dist. Dir., INS, 264 F.3d 378,
389 (3d Cir. 2001) (quoting Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945))). The BOP’s finding that Petitioner’s
MP3 player was a hazardous tool is not plainly erroneous or
inconsistent
with
the
regulation
because
the
regulation
precludes possession of electronic devices that pose a threat to
institutional security. It is not a stretch of the imagination
to think a prisoner might receive instructions on a recording
device,
coming
from
outside
the
prison,
to
assault
another
inmate. See Patel, 447 F. App’x at 340 (3d Cir. 2011) (BOP’s
interpretation of a cell phone as a hazardous tool under Code
108
was
not
plainly
erroneous
or
inconsistent
with
the
regulation). Therefore, Petitioner’s vagueness challenge to Code
108 fails on the merits.
C.
Equal Protection Claim
Petitioner contends he was treated differently than three
other inmates who received lesser sanctions for possession of an
MP3 player. (Pet., ECF No. 1 at 3.) Respondent argues Petitioner
has not stated a cognizable Equal Protection claim because he
did not allege the different treatment was based on purposeful
discrimination. (Answer, ECF No. 5 at 11.)
10
“[T]he Due Process Clause of the Fifth Amendment contains
an equal protection component prohibiting the United States from
invidiously
discriminating
between
individuals
or
groups.”
Washington v. Davis, 426 U.S. 229, 238 (1976) (citing Bolling v.
Sharpe,
“class
347
of
U.S.
one”
497
(1954)).
claim,
which
To
does
state
not
an
equal
require
a
protection
showing
of
purposeful discrimination, a plaintiff must allege he has been
intentionally treated differently from others similarly situated
and
that
there
is
no
rational
basis
for
the
difference
in
treatment. Patterson v. Stripoli, No. 14-4624, 2016 WL 231532,
at
*5
(3d
Cir.
Jan.
20,
2016)
(citing
Hill
v.
Borough
of
Kutztown, 455 F.3d 225, 239 (3d Cir. 2006)). The rational basis
standard requires a plaintiff to show the different treatment
was “irrational and wholly arbitrary.” Id. (quoting Eichenlaub
v. Twp. Of Ind., 385 F.3d 274, 286 (3d Cir. 2004) (quoting
Village of Willowbrook v. Olech, 528 U.S. 562, 565 (2000)).
Petitioner has not alleged any facts to show his Code 108
violation for possession of an MP3 player was irrational and
wholly arbitrary because other inmates received only a Code 305
violation for possession of an MP3 player. For instance, the MP3
players possessed by the inmates who were given lesser sanctions
may not have had recording capabilities or sufficient memory for
saving recorded messages. The BOP has a valid reason to find
that some MP3 players are not hazardous tools that threatened
11
institutional security. Petitioner has not alleged that the MP3
players of those who received lesser sanctions had the same
capabilities of the MP3 player Petitioner possessed.
IV.
CONCLUSION
For the reasons described above, the Court will dismiss the
habeas petition as procedurally defaulted and alternatively deny
the petition on the merits.
s/RENÉE MARIE BUMB_________
RENÉE MARIE BUMB
United States District Judge
Dated: June 28, 2016
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