ALFRED v. HOLLINGSWORTH
OPINION. Signed by Judge Jerome B. Simandle on 9/20/2017. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JAMAL HASAN ALFRED,
HONORABLE JEROME B. SIMANDLE
No. 16-2723 (JBS)
Jamal Hasan Alfred, Petitioner pro se
Federal Correctional Institution
EAST: P.O. Box 2000
Fort Dix, 08640
Caroline A. Sadlowski, AUSA
Kristen Lynn Vassallo, AUSA
Office of the U.S. Attorney
District of New Jersey
970 Broad Street
Newark, New Jersey 07102
Attorney for Respondent David Ortiz
SIMANDLE, District Judge:
This matter comes before the Court on Jamal Hasan Alfred’s
petition for writ of habeas corpus challenging a disciplinary
proceeding at FCI Fort Dix. Petition, Docket Entry 1. Respondent
David Ortiz opposes the petition.1 Answer, Docket Entry 8. 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
Petitioner is a convicted and sentenced federal prisoner
presently incarcerated in FCI Fort Dix, New Jersey. On April 11,
2015, Petitioner was leaving the Fort Dix kitchen area when a
corrections officer conducted a random pat-down search.
According to the Incident Report, the officer found Petitioner
“had 3 ten pound bags of liquid eggs, secured to his body with a
home-made waist band with his number on it, hidden under his
clothes and jacket.” Incident Report, Respondent’s Document 2a,
§ 11. He was charged with violating Code 219, stealing. Id. § 9.
See also 28 C.F.R. § 541.3. Petitioner received a copy of the
report on April 11, 2015 at 2:35 pm. Incident Report §§ 15-16.
Petitioner declined to make a statement after being advised of
his rights, and the matter was referred to the Unit Discipline
Committee (“UDC”) for a hearing. Id. §§ 17-19.
The UDC conducted a preliminary review and concluded that
Petitioner had committed the offense of stealing. Id. § 20. It
recommended the loss of Petitioner’s job, preferred housing, and
Jordan Hollingsworth was warden of FCI Fort Dix at the time the
petition was filed. The Court substitutes current warden David
Ortiz as respondent. Fed. R. Civ. P. 25(d).
good time credits. Id. The UDC referred the report to a
Discipline Hearing Officer (“DHO”) for a full hearing. Id.
Petitioner received notice of the DHO hearing on April 14, 2015.
Notice of Discipline Hearing, Respondent’s Document 2c. He
indicated he wanted Officer Collins from Food Service to appear
as his staff representative. Id. He waived his right to present
The hearing was held on April 28, 2015. DHO Report,
Respondent’s Document 2d § I.B. When Petitioner arrived at the
hearing, the DHO informed him that Officer Collins had declined
to act as Petitioner’s representative. Officer Collins indicated
“it would be detrimental for inmate Alfred, Jamal Hasan to have
[him] as a representative do [sic] to the knowledge of prior
stealing.” Duties of Staff Representative, Respondent’s Document
2e. The DHO offered to reschedule the hearing so Petitioner
could obtain another representative, but Petitioner declined the
offer. DHO Report § II.C. He instead elected to waive staff
representation and to proceed with the hearing as scheduled. Id.
Petitioner did not call any witnesses during the hearing.
He argued: “‘There was not ten pounds of liquid eggs, [the
reporting officer] is exaggerating. The strap belt was medically
issued to me.’” Id. § III.B. The DHO considered this argument as
well as the Incident Report and photographs of the three liquid
egg containers and the strap belt. Id. § III.D; Photo Sheet.
After considering Petitioner’s argument and the documentary
evidence, the DHO concluded Petitioner had committed the offense
of stealing. DHO Report § V. He sanctioned Petitioner to the
loss of 27 days good-time credit, loss of commissary privileges
for 60 days, and the loss of his job and preferred housing for
one year. Id. § VII.
Petitioner appealed the findings via the Bureau of Prisons’
(“BOP”) administrative remedy process. He denied the DHO’s
assertion that he admitted to stealing. “I assert that I am
innocent of the charge against me. . . . I was accused of having
‘3 ten pound bags of liquid eggs secured to [my] body.’ However,
as I stated to the Hearing Officer, ‘I did not have three 10
pound bags of eggs. In fact, there are no 10 pound bags of
eggs.’” Regional Appeal, Respondent’s Document 1b (alteration in
original). He attached a label from a scrambled egg mix
indicating it weighed 5 pounds. Id. He also argued his due
process rights were violated when Officer Collins declined to
represent him and told the DHO about having knowledge about
Petitioner’s prior acts of theft. Id. The Regional Director
denied the appeal, as did the Central Office.
Petitioner filed this habeas corpus petition pursuant to 28
U.S.C. § 2241 on May 13, 2016. Respondent submitted its answer
on December 9, 2016. Petitioner did not submit a traverse. The
matter is now ripe for decision.
“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
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). 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 “(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 where “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,” 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 argues the hearing violated his due process
rights in three ways: by denying him an impartial hearing
officer; by denying him a staff representative; and by failing
to meet the “some evidence” standard.
A. Impartial Hearing Tribunal
Petitioner alleges the DHO was impermissibly biased because
Officer Collins informed the DHO that he had knowledge of
Petitioner’s prior acts of stealing. “‘[T]he requirement of an
impartial tribunal prohibits only those officials who have a
direct personal or otherwise substantial involvement, such as
major participation in a judgmental or decision-making role, in
the circumstances underlying the charge.’” Speight v. Minor, 245
F. App'x 213, 217 (3d Cir. 2007) (quoting Meyers v. Aldredge,
492 F.2d 296, 306 (3d Cir. 1974)) (alteration in original). “It
would not include those who are only tangentially affected by
the alleged misconduct, such as prison officials who may have
some administrative connection with such misconduct prior to
hearings.” Meyers, 492 F.2d at 306.
There is no evidence in the record that the DHO had a
“direct personal or otherwise substantial involvement” in the
circumstances underlying the charges against Petitioner, and
nothing in Wolff requires the hearing officer to have no
knowledge whatsoever of an inmate’s prior disciplinary history.
Even in the criminal context jurors are not required to be
“totally ignorant of the facts and issues involved.” Irvin v.
Dowd, 366 U.S. 717, 722 (1961). Further, a judge in a non-jury
case is routinely expected to disregard prejudicial evidence
that has been excluded. It stands to reason that there must be
more than a generalized allegation of bias based on a hearing
officer’s knowledge of prior acts in disciplinary proceedings
where prisoners are not entitled to “the full panoply of rights
due a defendant in [criminal] proceedings.” Wolff, 418 U.S. at
556. There is no support to Petitioner’s assertion that the DHO
was biased in a manner that violated Petitioner’s due process
B. Staff Representative
Petitioner further asserts the hearing did not comport with
due process because his chosen staff representative, Officer
Collins, declined to represent him and informed the DHO that he
had knowledge of other incidents of Petitioner stealing. He
argues “the only reason for Officer Collins to make this
allegation, was in an attempt to prejudice the DHO Officer. The
Petitioner further asserts that this prejudice turns Officer
Collins declination into a due process violation.” Petition at
Officer Collins’ decision not to represent Petitioner did
not violate Petitioner’s due process rights. Petitioner is not
illiterate, as evidenced by his cogent arguments before this
Court, nor does Petitioner argue that he did not understand the
charge levied against him. See Wolff, 418 U.S. at 570.
Furthermore, Petitioner’s argument that Officer Collins would
have been able to testify that there are no 10 pound bags of
liquid eggs disqualifies him from serving as Petitioner’s
representation. See BOP Program Statement 5270.09, c.
541.8(d)(1)(“You may request the staff representative of your
choice, so long as that person was not a victim, witness,
investigator, or otherwise significantly involved in the
incident.” (emphasis added)). Finally, nothing in the record
supports Petitioner’s conclusory allegation that Officer Collins
informed the DHO of his knowledge of Petitioner’s prior acts of
stealing for the sole purpose of prejudicing Petitioner’s
The DHO offered to postpone the hearing so Petitioner could
obtain a new representative, but Petitioner chose to continue
with the hearing as scheduled without a staff representative.
While Petitioner may regret his decision, he nonetheless
exercised his own choice to proceed without a new representative
despite the offer of the DHO to postpone the hearing. Neither
the BOP regulations nor Petitioner’s due process rights were
violated when Petitioner elected to proceed without staff
C. Some Evidence
Petitioner argues there is not “some evidence” to support
the charge. “The Petitioner was charged with stealing ‘3 ten
pound bags of liquid eggs’ from the Fort Dix Food Services.
However, the Petitioner asserted at his DHO Hearing and asserts
again here, that the Fort Dix Food Service did not even purchase
ten pound bags of liquid eggs. This fact supports the
Petitioner’s statement at his DHO hearing that the Officer . . .
was ‘exaggerating.’” Petition at 8.
Having reviewed the findings of the DHO, the Court
concludes that there is some evidence in the record to support a
conclusion that Petitioner committed the offense of stealing.
“[T]he relevant question is whether there is any evidence in the
record that could support the conclusion reached by the
disciplinary board.” Superintendent, Mass. Corr. Inst., Walpole
v. Hill, 472 U.S. 445, 455-56 (1985) (emphasis added). The
written findings show that the DHO considered Petitioner’s
argument that the liquid eggs did not weigh 10 pounds and that
the strap had been medically issued to him. DHO Report § V. The
pictures of the liquid eggs and strap, which Petitioner does not
deny using, constitute some evidence supporting the DHO’s
decision. Whether the liquid eggs weighed 5 pounds or 10 pounds
each is ultimately irrelevant. The evidence indicates Petitioner
took sizeable bags of liquid eggs from the Fort Dix kitchen area
strapped to his body without permission. That is enough to
support the charge of stealing a substantial quantity of liquid
eggs. Having found some evidence to support the findings, the
Court must therefore uphold the disciplinary decision.
Stealing is designated as a “High Severity Level Prohibited
Act” under 28 C.F.R. § 541.3. The loss of 27-days good-conduct
time is within the permitted sanctions for that level. 28 C.F.R.
§ 541.4(b)(3). The petition is denied.
For the above stated reasons, the petition is denied. An
accompanying Order will be entered.
September 20, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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