ROJAS-ALVARADO v. HOLLINGSWORTH
Filing
12
OPINION. Signed by Judge Renee Marie Bumb on 8/8/2018. (rtm, )
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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
SEFERINO ROJAS-ALVARADO,
Petitioner
v.
WARDEN JORDAN HOLLINGWORTH,
Respondent
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Civ. Action No. 16-3460 (RMB)
OPINION
BUMB, District Judge
Petitioner, Seferino Rojas-Alvarado, a prisoner confined in
the Federal Correctional Institution in Fort Dix, New Jersey (“FCI
Fort Dix”), filed a petition and an amended petition for writ of
habeas corpus under 28 U.S.C. § 2241, challenging the Bureau of
Prison’s (“BOP”) imposition of sanctions upon a finding that
Petitioner committed a “Prohibited Act” of stealing. (Am. Pet.,
ECF No. 6 at 2-4.) Respondent filed a response, opposing habeas
relief. (Response, ECF No. 8.) In reply, Petitioner submitted a
copy of his Central Office Administrative Remedy Appeal and the
response thereto. (Reply, ECF No. 10.) The parties agree that
Petitioner exhausted his administrative remedies.
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I.
BACKGROUND
On May 30, 2015, while incarcerated in FCI Fort Dix, in Fort,
Dix New Jersey, Petitioner was issued an incident report for
violating Code 219, Stealing. (Declaration of Tara Moran (“Moran
Decl.”) Ex. 4, ECF No. 8-1 at 14.) The reporting officer wrote:
At 11:20 A.M. during mainline lunch while
outside the front entrance of Food Services
5730 I observed Inmate Rojas 12851-023 trying
to sneak by the staff members that were
conducting pat searches with bulges under his
clothes. Inmate Rojas had the following food
items in his possession: 2 pounds of bran
flakes ($1.58), 10 bagels ($1.20), 1 banana
(.08) and 8 breaded fish squares ($2.24) for
a total of $5.10.
(Id.) Petitioner received the incident report at 7:30 p.m. that
same day. (Id.) The investigating officer spoke with Petitioner,
who responded “I was hungry.” (Id.)
An
initial
hearing
was
held
before
the
Unit
Discipline
Committee on June 1, 2015. (Id.) Again, Petitioner said he took
the
items
because
he
was
hungry.
(Id.
at
15.)
Due
to
the
seriousness of the charge, the UDC referred the incident report to
a Discipline Hearing Officer (“DHO.”) (Id. at 14.)
Petitioner was advised of his rights before the DHO. (Moran
Decl., Exs. 5, 6, ECF No. 8-1 at 17-19.) The DHO hearing was held
on July 9, 2015. (Id., Ex. 8, ECF No. 8-1 at 23-25.) Petitioner
was read his rights and waived his right to a staff member
representative. (Moran Decl., Ex. 8, ECF No. 8-1 at 23.) Petitioner
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admitted taking the food for himself. (Moran Decl., Ex. 8, ECF No.
8-1 at 23). The DHO also considered a photo of the confiscated
bagels and banana. (Id. at 24.)
The DHO concluded that Petitioner committed the Prohibited
Act of Stealing, Code 219, based on the incident report and
Petitioner’s
statement
at
the
hearing.
(Id.)
Petitioner
was
sanctioned with a disallowance of 27 days of good conduct time and
the loss of 60 days of visiting privileges. (Id.) The DHO report
was delivered to Petitioner on August 11, 2015. (Id.)
II.
THE AMENDED PETITION AND RESPONSE
A.
The Amended Petition
Petitioner alleges that he worked at the dishwashing station
in the Food Services Department at FCI Fort Dix at the time in
question. (Am. Pet., ECF No. 6, ¶4.) Daily, he witnessed “tons” of
food thrown away. (Id.) When inmates returned food trays to
Petitioner with apparently untouched food, Petitioner took it to
his Housing Unit for himself and others to eat later. (Id., ¶5.)
Petitioner was caught taking food out of Food Services on May 30,
2015 and received an incident report. (Id., ¶6.) Petitioner claims
that taking discarded food is not stealing. (Id., ¶7.) This is
Petitioner’s
only
challenge
to
sanctions.
3
the
disciplinary
hearing
and
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B.
The Response
Respondent contends that because there is at least “some
evidence” that Petitioner took items from the Dining Hall without
prior permission, the DHO’s decision must be upheld. (Response,
ECF No. 8 at 10.) The evidence showed Petitioner had bagels, a
banana, fish fillets and bran flakes concealed on his person. (Id.
at 12.) Petitioner admitted taking the food because he was hungry.
(Id.) Petitioner did not, at any time during the disciplinary
hearing process, claim that he was taking items discarded by other
inmates. (Id.) Respondents contend that if a prisoner takes food
from the dining facility without permission, it is stealing. (Id.
at 13.) Respondents maintain that the sanctions imposed were
consistent with the severity level of the prohibited act, as
outlined in 28 CFR § 541.3. (Response, ECF No. 8 at 14-15.)
II.
DISCUSSION
A.
Legal Standard
28 U.S.C. § 2241 provides, in relevant part:
(a) Writs of habeas corpus may be granted by
the Supreme Court, any justice thereof, the
district courts and any circuit judge within
their respective jurisdictions . . .
(c) The writ of habeas corpus shall not extend
to a prisoner unless—
. . .
(3) He is in custody in violation of the
Constitution or laws or treaties of the
United States; . . .
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Prisoners have a protected due process liberty interest in
earned good conduct time. Wolff v. McDonnell, 418 U.S. 539 (1974);
see Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.
445, 454 (1985) (“Where a prisoner has a liberty interest in good
time credits, the loss of such credits threatens his prospective
freedom
from
imprisonment.”)
confinement
The
by
Supreme
Court
extending
the
described
length
of
five
elements
of
procedural due process required for prison disciplinary hearings
where an inmate is sanctioned with loss of good conduct time: (1)
written notice of the charged misconduct at least 24-hours in
advance
of
the
hearing;
(2)
an
impartial
hearing
body;
(3)
opportunity to present witnesses and documentary evidence; (4)
assistance for illiterate inmates or in complex cases; and (5) a
written statement of the evidence relied upon and the reasons for
the sanction. Wolff v. McDonnell, 418 U.S. 539, 564-70 (1974).
The decision of the DHO must be upheld if there is “some
evidence” to support it. Hill, 472 U.S. at 454 (1985). “[T]he
relevant question is whether there is any evidence in the record
that could support the conclusion reached by the disciplinary
board.” Id. at 455-56.
Code 219, Stealing, is a high severity level prohibited act
described as, “Stealing; theft (including data obtained through
the
unauthorized
use
of
a
communications
5
device,
or
through
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unauthorized access to disks, tapes, or computer printouts or other
automated equipment on which data is stored).” 28 CFR § 541.3,
Table 1.
B.
Analysis
Petitioner
was
caught
leaving
Food
Services
with
food
concealed on his person. He admitted taking it because he was
hungry. At the DHO hearing, he did not testify that the food he
possessed had been discarded by other inmates. Even if the food
was discarded before Petitioner tried to take it from Food Services
to his Housing Unit, in the heavily regulated setting of a prison,
discarded food does not belong to any inmate who can sneak it out
of the dining area. See Menas v. O’Brien, No. Civ.A. 7:06-CV00026, 2006 WL 1457744 at *5 (W.D. Va. May 23, 2006) (upholding
prison
disciplinary
caught
taking
sanction
discarded
for
food
stealing
from
Food
where
prisoner
Services
was
without
permission.) There is some evidence supporting the DHO’s decision
that Petitioner stole food from Food Services on May 30, 2015.
III. CONCLUSION
For
the
reasons
discussed
above,
the
Court
denies
Petitioner’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2241.
An appropriate Order follows.
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s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
Dated: August 8, 2018
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