JACQUET v. FEDERAL BUREAU OF PRISONS et al
OPINION. Signed by Chief Judge Jerome B. Simandle on 9/14/2016. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 16-4368 (JBS)
WARDEN DAVID ORTIZ,
MICHAEL N. PEDICINI, Esq.
560 Main Street
Chatham, New Jersey 07928
EDWIN A. PALTZIK, Esq.
Joshpe Law Group LLP
79 Madison Avenue, FL 2
New York, New York 10016
Attorneys for Petitioner Edwin Jacquet
KRISTIN LYNN VASSALLO, Esq.
Office of the U.S. Attorney
970 Broad Street
Newark, New Jersey 07102
Attorney for Respondent David Ortiz
SIMANDLE, Chief Judge:
This matter comes before the Court on Edwin Jacquet’s
(“Petitioner”) petition for writ of habeas corpus challenging a
disciplinary proceeding. Petition, Docket Entry 1. Respondent
David Ortiz opposes the petition. Answer, Docket Entry 10. 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
In March 2012, Petitioner pled guilty in the Southern
District of New York to conspiracy to commit bank fraud, 18
U.S.C. § 1349. Petition ¶ 10. He was sentenced to a 63-month
term of imprisonment. Id. Petitioner entered the BOP’s
Residential Drug Abuse Program (“RDAP”) while incarcerated at
FCI Miami. Id. ¶ 12. After completing the RDAP residential
component, he was transferred to the Bronx Community Re-Entry
Center (“BCRC”) on September 1, 2015. Declaration of Tara Moran
(“Moran Dec.”) Exhibit 3.
According to Petitioner, his mother and sister visited him
at his work site on October 5, 2015. Petition ¶ 21. During the
visit, Petitioner consumed six Nature Valley Lemon Poppy Seed
Breakfast Biscuits. Id.; Petitioner’s Exhibit C. “When he
returned to BCRC that evening, [Petitioner] realized that his
consumption of the biscuits could trigger a positive urinalysis
result for opiates if a random urine test was conducted.
Therefore, he voluntarily informed BCRC staff member Rohan of
the situation. Rohan assured [Petitioner] that this would not be
a problem.” Petition ¶ 23. A urine test was conducted that
evening at approximately 10:30 p.m. Id. ¶ 25.
According to the incident report, BCRC staff received a fax
from LabCorp on October 13, 2015 indicating that Petitioner’s
sample was positive for codeine and morphine. Incident Report,
Moran Dec. Exhibit 4 § 11. The report indicated the sample had a
codeine level of 500 ng/mL and a morphine level of 317 ng/mL.
LabCorp Report, Petitioner’s Exhibit D. A staff member created
an incident report, and Petitioner received a copy on October
13, 2015 at 1:59 p.m. Incident Report §§ 12-16; Petition ¶ 28.
He was informed of his right to remain silent, and according to
the report, made the following statements:
Resident stated that “he does not use drugs, has not
used Morphine or Codeine ever in his life.” “[T]he only
this I can think of is the granola bar that I consumed
that day (10/5/2015) which had lemon poppy seeds.”
Resident states that he showed Monitor II Rohan the
wrapper of said granola bar before the Urinalysis was
conducted. Resident further states that he is willing to
submit to another urinalysis test or blood exam if
needed, or anything to prove he is not taking any drugs.
Id. §§ 23-24. Petitioner was charged with violating Code 112,1
Incident Report, and the report was referred to the Center
Discipline Committee (“CDC”) for a hearing. Id. §§ 10, 27.
Petitioner also received and signed a Notice of CDC Hearing,
Moran Dec. Exhibit 5; an Inmate Rights form, Moran Dec. Exhibit
6; and waiver of 24-hour notice form, Moran Dec. Exhibit 7. The
Notice of CDC Hearing indicated the hearing would occur on
See 28 C.F.R. § 541.3.
October 14, 2015 at 2:58 p.m.2 Petitioner waived his right to a
staff representative and requested that Mr. Rohan appear as a
witness on his behalf in order to testify about the granola bar.
Notice of CDC Hearing.
The disciplinary hearing took place on October 14, 2015 at
MDC Brooklyn.3 Petitioner’s mother submitted a written statement
indicating she gave Petitioner the biscuits and that neither of
them knew “the biscuits contained poppy seeds.” CDC Report,
Moran Dec. Exhibit 8 at 9. Mr. Rohan submitted a statement
On October 5, 2015 prior to conducting Resident Jacquet,
Edwin Reg. #69422-053 random urinalysis he showed me a
wrapper and said “look I have this wrapper.” I, MII Rohan
asked him what he was showing me and he stated “a candy
wrapper, it had poppy seeds in it.” I informed Resident
Jacquet, Edwin Reg. #69422-053 that he still had to take
the urine and he complied.
Id. at 7. In addition to these statements, the Committee
considered the Incident Report, Chain of Custody form, the
Community Based Agreement, and LabCorp report. Id. § III.D.
After reviewing the witness statements and documentary evidence,
the CDC determined Petitioner violated Code 112. It recommended
The date appears to have been originally written as “10/15/15,”
which was later written over to be “10/14/15.” A pair of
initials belonging to an unidentified person appears next to the
correction. Notice of CDC Hearing.
Petitioner alleges this hearing occurred without his presence.
Petition ¶ 33.
that Petitioner be returned to a more secure facility and that
he lose all available good conduct time in order to deter him
and other inmates. Id. §§ VI-VII. Upon review of the CDC’s
findings, the Disciplinary Hearing Officer (“DHO”) upheld the
determination and sanctioned Petitioner to loss of 40-days goodconduct time and 45-days of non-vested good-conduct time. Id. §
X; DHO Checklist, Moran Dec. Exhibit 9.
While awaiting the final report, Petitioner attempted to
arrange for a hair follicle test that would purportedly show
that the urine test had been a false positive due to the poppy
seeds. Petition ¶ 46. He filed an inmate request to staff form
on November 9, 2015 requesting a hair test on an expedited basis
as “[h]air analysis is accurate for up to 60 days from date in
question, which is October 5, 2015.” Petitioner’s Exhibit J. He
indicated that he or his family would reimburse the BOP for the
test. Id. His mother purchased a hair testing kit and mailed it
to the BOP, but a case manager denied the request for testing.
Petition ¶¶ 47-48.
Petitioner submitted a regional administrative remedy
appeal on December 4, 2015, arguing that he ate six lemon poppy
seed biscuits “before I realized they had poppy seeds in them.”
Petitioner’s Exhibit L at 1. He stated that he had learned “that
hair analysis was the best, most accurate method of testing for
heroin usage and would eliminate the false positive of poppy
seed ingestion, a common problem[,]” and objected to the case
manager’s denial of his request for a hair test at his expense.
Id. at 2. He requested that a hair test be performed by January
3, 2016. Id. His administrative appeal was rejected on December
16, 2015 for being illegible and untimely; the BOP stated his
appeal was due by November 24, 2015 and was not received until
December 8, 2015. Petitioner’s Exhibit M. Petitioner was
instructed to resubmit his appeal along with “staff verification
stating reason untimely filing was not [his] fault” within 10
days. Id. Petitioner attempted to submit his appeal two more
times, and each time his appeal was rejected by the regional
office as untimely.4 Moran Dec. ¶¶ 5-6. He appealed to the
Central Office on March 7, 2016, and the appeal was rejected on
March 21, 2016. Moran Dec. Exhibit 2 at 5.
Petitioner thereafter filed this habeas petition on July
19, 2016. Petitioner originally named several persons besides
Fort Dix Warden Ortiz as Respondents. In ordering the United
States to answer the petition, the Court dismissed the other
persons as the only proper respondent in a habeas proceeding is
Petitioner’s immediate custodian. See Rumsfeld v. Padilla, 542
Petitioner argues the BOP miscalculated the original deadline
for submitting the appeal, Petition ¶ 52, and the delays in the
resubmissions were caused by the early departure of Fort Dix’s
staff for the holidays as well as their failure to provide a
staff memo explaining the situation, id. ¶ 57-61; Petitioner’s
U.S. 426, 435-36 (2004). Petitioner filed a motion to expedite
the proceedings, asserting that he had been eligible for release
on August 29, 2016 prior to the revocation of his good conduct
credits. Motion to Expedite, Docket Entry 7. The Court granted
the motion and directed Respondent to answer on an expedited
basis.5 Respondent filed its answer on August 17, 2016.
Petitioner submitted a response on August 19, 2016. Response,
Docket Entry 11.
Petitioner argues he was denied due process of law in the
course of his disciplinary hearing and administrative appeal. He
challenges the result of the hearing, sanctions of the loss of
his good-conduct credits, and expulsion from the RDAP program.
A. 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
In spite of the fact that the short time period before August
29, 2016 was a self-created “emergency” attributable to the
four-month delay between the denial of the Central Office appeal
in March and the filing of this petition in late July, the Court
granted the motion in the interests of justice.
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). 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.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472
U.S. 445, 454 (1985) (quoting Wolff, 418 U.S. at 558).
1. Wolff Factors
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.” Id. at
454 (citing Wolff, 418 U.S. at 563-67). A review of the record
indicates Petitioner received all of the due process protections
to which he was entitled under Wolff.
Petitioner admits he had a discussion with staff member
Villanueva on October 13, 2015 at approximately 2:00 p.m.
Petition ¶ 28; Incident Report ¶¶ 15-16. The record reflects
that at that date and time, he received advanced written notice
of being charged with violating Code 112 and that the hearing
would be scheduled for October 14, 2015 at 2:58 p.m. Notice of
CDC Hearing. Petitioner concedes the form “appears” to have been
signed by him, but he argues the form is “confusing” as the date
appears to have been changed from October 15, 2015 to October
14, 2015, and that he did not understand what he was signing.
Response ¶ 5. He does not, however, assert the date was written
in or changed after he signed the document, and his assertion
that he did not understand the documents is patently
contradicted by the fact that he signed the acknowledgment of
rights which states that his rights were explained to him. Id. ¶
6; Inmate Rights Form.
The record also contradicts his unsupported assertion that
he was not present at the hearing. In the “Presentation of
Evidence” section of the CDC Report, Petitioner initialed next
to the portion indicating he had been advised of his rights to
present a statement or remain silent, and to present evidence on
his behalf. CDC Report § III.A. He denied the charges. Id. He
also initialed next to the “Summary of Inmate Statement”
portion, which stated “Resident Jacquet stated he consumed a
lemon poppy seed granola bar and believes this caused his
positive result.” Id. § III.B. He also initialed next to the
portion indicating the hearing took place on “10/14/2015” at
2:58 p.m.6 Id. § I.B. Once again, although the same change in
date was made on this form as on the Notice of CDC Hearing,
Petitioner does not allege this change was made after he
initialed the form. Both parties submitted identical copies of
the CDC Report, strongly indicating that the correction was made
prior to Petitioner’s review and approval of the form. Compare
Petitioner’s Exhibit E, with Moran Dec. Exhibit 8. A typo in the
“Hearing Date” section and the lack of a specific statement that
he was present do not support his assertion that the hearing was
held in his absence, whereas the report bearing Petitioner’s
initials and signature next to the summary of the evidence
presented at the hearing constitutes evidence that he was
present. See Muhammad v. Wiley, 330 F. App'x 165, 168 (10th Cir.
2009) (holding disciplinary report indicating prisoner had no
comment is “some evidence he attended the hearing”). Considering
the record as a whole, including the fact that Petitioner did
not argue in any of his administrative appeals that he was not
present for the hearing, there is no factual support for
Petitioner’s allegation. Even if, contrary to the evidence of
his attendance at the hearing, one assumes arguendo that
Petitioner asserts the time reads 2:08 p.m., Response ¶ 7, but
the printout of his chronological disciplinary record provided
by Petitioner indicates it was in fact 2:58 p.m. See
Petitioner’s Exhibit G.
Petitioner was not present, the error would be harmless, as now
Petitioner argues that “[t]he outcome may well have been
different had Mr. Jacquet been permitted to be present and speak
before the CDC, at which time the CDC would have been able to
assess his credibility and hear his explanation of events.”
Response ¶ 12. However, the CDC was already aware of
Petitioner’s explanation of events. It had before it the
Incident Report containing Petitioner’s statement that he
consumed a lemon poppy seed granola bar and that he promptly
informed Mr. Rohan of the consumption on October 5, 2015,
Incident Report § 24, as well as Mr. Rohan’s statement that
Petitioner produced the wrapper on that date prior to providing
See Brennan v. United States, No. 16-3016, 2016 WL 2732082
(10th Cir. May 11, 2016) (holding failure to provide 24-hour
notice subject to harmless error review); Howard v. U.S. Bureau
of Prisons, 487 F.3d 808, 813 (10th Cir. 2007) (“[E]rrors made
by prison officials in denying witness testimony at official
hearings are subject to harmless error review.”); Elkin v.
Fauver, 969 F.2d 48, 53 (3d Cir. 1992) (noting that harmless
error analysis applies to cases concerning prison disciplinary
proceedings); Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir.
1991) (“If a person may be convicted and obliged to serve a
substantial prison sentence notwithstanding a constitutional
error determined to be harmless, surely the conditions of
confinement of a sentenced prisoner may be made temporarily more
severe as discipline for a prison rules infraction despite a
harmless error in adjudicating the violation.” (internal
citations omitted)); Lane v. Maye, No. 16-3094, 2016 WL 4430672,
at *7 (D. Kan. Aug. 22, 2016) (“The court finds that even if
petitioner proved that he was not taken out of his cell to
appear near the officer's station in the SHU for his DHO
hearing, this error was harmless.”).
the urine sample, CDC Report at 7. The committee also had
Petitioner’s mother’s statement wherein she indicated she gave
Petitioner the biscuits. Id. at 9. The committee was also aware
“that ingestion of poppy seed products may result in positive
test results for unauthorized drug use,” which was why residents
were explicitly prohibited from consuming them. Id. at 5. The
committee had all of this information and did not credit
Petitioner’s version of events. Petitioner does not indicate
what other explanation he would have provided that may have
impacted the hearing. See Response ¶ 12. Thus, even if the BOP
conducted the hearing in Petitioner’s absence, Petitioner has
not established he was prejudiced by the error.
Petitioner further alleges his rights under Wolff were
violated when he was denied the opportunity to take a hair
follicle test and present that as evidence of the false
positive. “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.” Abbott v. Hollingsworth,
No. 14-6784, 2015 WL 1952355, at *4 (D.N.J. Apr. 29, 2015)
(citing Manfredi v. United States, No. 12-1905, 2012 WL 5880343
at *6 (D.N.J. Nov. 20, 2012)); see also Garrett v. Smith, 180 F.
App'x 379, 381 (3d Cir. 2006) (finding no right to expert
testimony in disciplinary proceedings); Spence v. Farrier, 807
F.2d 753, 756 (8th Cir. 1986) (noting that requiring
confirmatory testing in order to challenge the reliability of
drug tests “would seriously interfere with the institutional
goal of drug deterrence and prompt resolution of drug related
infractions”). The BOP did not violate Petitioner’s due process
rights by not conducting a hair follicle test.
Finally, Petitioner received a copy of the CDC Report and
DHO Checklist setting forth the reasons for the revocation of
his credits. Petitioner’s Exhibits E and I; see also DHO
Checklist. The Court therefore finds that the disciplinary
proceedings complied with the standard set forth in Wolff. The
Court must now determine whether there exists “some evidence” in
the record to support the decision.
2. Some Evidence
At its core, the petition is a challenge to the sufficiency
of the evidence used to sanction Petitioner. He asserts the
failure to inform LabCorp of the ingestion of poppy seeds
resulted in a “scientifically unsound lab report”; that 300ng/ml
is insufficient to form the basis of a positive result as it is
inconsistent with other federal standards; and that the CDC
failed to adequately consider the possibility that the result
was a false-positive due to the ingestion of poppy seeds.
Petition ¶¶ 97-110.
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.” Superintendent, Mass. Corr. Inst., Walpole
v. Hill, 472 U.S. 445, 455-56 (1985) (emphasis added). This
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).
Here, the CDC based its decision in part on the incident
report. The CDC relied on the positive urinalysis result from a
sample provided by Petitioner and the absence of medications
that would cause a positive test. Incident Report § 11; CDC
Report § V. “Positive urinalysis results based on samples that
officials claim to be [the inmate’s] constitute some evidence of
[the inmate’s] drug use.” Thompson v. Owens, 889 F.2d 500, 502
(3d Cir. 1989) (emphasis in original). The incident report also
contains Petitioner’s admission that he consumed poppy seeds,
which was explicitly prohibited by the terms of his agreement
with the BCRC. CDC Report at 5.8
Having reviewed the findings of the CDC, the Court
concludes that there is some evidence in the record to support
those conclusions. See Perez v. McKean, 136 F. App'x 542, 544
(3d Cir. 2005) (“[A]lthough some evidence supported the claim
that the urine test gave a false positive result, some evidence
supported the conclusion reached in the disciplinary proceeding,
which is all that is required.”). The Court must therefore
uphold the disciplinary decision. Cardona v. Lewisburg, 551 F.
App'x 633, 637 (3d Cir. 2014) (“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.”).
Petitioner also challenges the severity of the sanctions
imposed. 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-day good-conduct time and 45-days non-vested good-conduct
Petitioner’s claims that he was unaware the lemon poppy seed
biscuits contained poppy seeds are dubious at best as the Court
notes the packaging prominently states the type of biscuits and
that the seeds are visible on the depiction of the biscuits
themselves. See Petitioner’s Exhibit C; CDC Report at 10.
time is within the permitted sanctions for a Code 112 violation.
28 C.F.R. § 541.4(b)(1). There is no basis to overturn the
B. Expulsion from RDAP
Petitioner also challenges his removal from RDAP as
arbitrary and excessive.9 Petition ¶¶ 123-27. Prisoners have no
constitutional right to be assigned to a particular institution,
facility, or rehabilitative program. See Olim v. Wakinekona, 461
U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 224–26
(1976); Wilkerson v. Samuels, 524 F. App'x 776, 778 (3d Cir.
2013) (per curiam); Magnin v. Beeler, 110 F. Supp. 2d 338, 340
n.2 (D.N.J. 2000). Under the federal regulation that was in
effect at the time of the hearing, 28 C.F.R. § 550.53(g)(3),10
expulsion from RDAP was mandatory once Petitioner was found to
have violated the program’s rules. See also Douvos v. Quintana,
382 F. App'x 119, 122 (3d Cir. 2009) (“[E]xpulsion from a
rehabilitative program for a violation of its rules and
regulations ‘falls within the expected perimeters of the
sentence imposed by a court of law.’” (quoting Sandin v. Conner,
To the extent Petitioner asserts he was removed from RDAP prior
to the DHO’s review of the CDC’s findings, the documents
submitted do not support that assertion. See Petition ¶ 38;
Petitioner’s Exhibit F.
The regulation was amended to remove this subsection effective
May 26, 2016. Drug Abuse Treatment Program, 81 Fed. Reg. 2448402 (Apr. 26, 2016) (to be codified at 28 C.F.R. pt. 550).
515 U.S. 472, 485 (1995))). The BOP’s decision to remove
Petitioner from RDAP did not violate his due process rights.
C. Appellate Rights
Petitioner also asserts the BOP violated his right to a
fair and adequate appeals process. Petition ¶¶ 117-22. He also
asserts a claim under the Administrative Procedure Act. Id. ¶¶
128-30. Neither of these claims warrant habeas relief.
Petitioner cannot challenge the BOP’s alleged interference
in his administrative appeal under the APA. Generally, “[u]nder
the APA, any ‘person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to
judicial review.’” Smriko v. Ashcroft, 387 F.3d 279, 290 (3d
Cir. 2004) (quoting 5 U.S.C. § 702) “The only exceptions to this
general rule are situations in which ‘(1) statutes preclude
judicial review; or (2) agency action is committed to agency
discretion by law.’” Id. at 290-91 (quoting 5 U.S.C. § 701(a)).
“The APA does ‘not apply to the making of any
determination, decision, or order under [the] subchapter’
governing imprisonment.” Anderson v. Fed. Bureau of Prisons, 506
F. Supp. 2d 28, 29–30 (D.D.C. 2007) (quoting 18 U.S.C. § 3625)
(holding APA may not be used to challenge removal from work
program). The provision governing RDAP placements, 18 U.S.C. §
3621(e)(1), is included in the subchapter that is exempted from
judicial review under the APA. See Jordan v. Wiley, 411 F. App'x
201, 214 (10th Cir. 2011) (“Because the APA does not apply to
substantive BOP disciplinary determinations involving the
reduction of good-time credits, we may not review [petitioner’s]
claim . . . that the BOP acted in a way that was arbitrary,
capricious, abused its discretion, or was otherwise not in
accordance with the law.”); see also Bernard v. Roal, 716 F.
Supp. 2d 354, 360–61 (S.D.N.Y. 2010). The APA claim is therefore
Finally, Petitioner cannot establish a violation of the Due
Process Clause in his appeals process as there is no
constitutional right to prison grievance procedures. Heleva v.
Kramer, 214 F. App'x 244, 247 (3d Cir. 2007).
For the above stated reasons, the petition is denied. An
accompanying Order will be entered.
September 14, 2016
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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