COOPER v. ORTIZ

Filing 10

OPINION. Signed by Judge Renee Marie Bumb on 8/16/2018. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

PRINCE COOPER,
Petitioner
v.
WARDEN D. ORTIZ,
Respondent

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Civ. Action No. 16-6962 (RMB)
OPINION

BUMB, District Judge
Petitioner, Prince Cooper, a prisoner confined in the Federal
Correctional Institution in Fort Dix, New Jersey (“FCI Fort Dix”),
filed a petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging the Federal Bureau of Prison’s (“BOP”) imposition of
sanctions upon a finding that Petitioner committed a “Prohibited
Act” of possession, manufacture or introduction of a hazardous
tool, Code 108. (Pet., ECF No. 1; Ex. A, ECF No. 1-2 at 2.)
Respondent filed a response, opposing habeas relief (Response, ECF
No. 6) and Petitioner submitted a reply. (Reply, ECF No. 9.)
I.

BACKGROUND
Petitioner is incarcerated in FCI Fort Dix, and assuming he

receives the maximum possible good conduct time, his projected

release date is April 10, 2021. (Response, Declaration of Tara
Moran (“Moran Decl.”), Ex. 1, ECF No. 6-2 at 2.) On January 29,
2016, Petitioner received an incident report. (Id., Ex. 3, ECF No.
6-4 at 2.) In the report, Officer Golden wrote:
On
Saturday
January
9th,
2016,
at
approximately 10:05 A.M. I, Senior Officer M.
Golden, acting as the 5752-F Housing Unit
Officer on day watch, accompanied by Officer
M/ Boze, the East Compound Officer #2,
conducted a search of room 219. When we
entered the room I observed inmate Cooper
Prince, register number 20705-052, attempt to
conceal an unidentified object inside of a
pair of black rubber gloves. I ordered all
inmates present to submit to a pat search and
leave the room. Inmate Cooper attempted to
depart the room with the gloves on his person.
I ordered him to leave all personal items in
the room. I/M Cooper placed the gloves on the
bed of bunk 1-Upper and left the room. I/M
Cooper’s allotted bed assignment is 219, 1
upper. When I searched the black rubber
gloves, one (1) black Samsung flip phone with
attached charger was found concealed inside of
the gloves. I notified the East Operations
Lieutenant. End of statement.
(Id.)
Upon receipt of the Incident Report, Petitioner was advised
of his rights regarding the disciplinary process. (Id. at 3.) At
that time, Petitioner stated, “I definitely have no idea what he
is talking about.” (Id.)
After investigation, the investigating staff member referred
the Incident Report to the Unit Discipline Committee (“UDC”) for
a hearing, which was held on January 12, 2016. (Id. at 3-4.) The

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UDC referred the case to a Discipline Hearing Officer due to the
severity of the Incident Report. (Moran Decl., Ex. 3, ECF No. 6-4
at 4.)
The hearing before the DHO was held on January 21, 2016. (Id.,
Ex. 7, ECF No. 6-8 at 2.) According to the DHO report, at the
hearing, Petitioner said the Incident Report did not make sense
because “if they saw [me] with the phone why did they not get [me]
immediately. He stated he was in the room and they patted down all
of the inmates. He stated the lieutenant was there. He stated they
stepped outside into the quiet room.” (Id.)
In addition to Officer Golden’s statement in the Incident
Report, Officer Boze submitted a memorandum for the DHO hearing.
(Id. at 3.) He wrote:
[I] observed inmate COOPER, Prince . . . try
to hide an unidentified object inside of a
pair of rubber gloves. We [including Officer
M. Boze] directed all of the inmates to submit
to a search, and I conducted metal detector
searches of every inmate as they departed the
room. Inmate Copper [sic] attempted to depart
the room with a pair of gloves on his person.
Senior Officer Golden instructed I/M Cooper to
leave all personal items in the room. When
Senior Officer Golden searched the black
rubber gloves, he discovered one (1) black
Samsung flip phone with attached charger
concealed
inside
of
the
gloves.
East
Operations was notified. End of statement.
(Id.)
The DHO found Petitioner guilty of violating Code 108, as
charged. (Id.) In drawing this conclusion, the DHO relied on the
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Incident Report, the memorandum submitted by Officer Boze, a
photograph depicting the cell phone recovered by the officers who
searched his room, and a chain-of-custody log. (Moran Decl., Ex.
7, ECF No. 6-8 at 3.) The DHO noted that he also considered
Petitioner’s statement but the staff member who recovered the phone
clearly stated what he observed, and this was corroborated by the
remaining evidence. (Id.)
The DHO imposed sanctions including disallowance of 40 days
of good conduct time, 15 days disciplinary segregation suspended
90 days, 90 days loss of e-mail privileges, and 90 days loss of
telephone privileges. (Id. at 4.) The DHO said the sanctions were
appropriate because possession of a cell phone threatens the safety
and welfare of the entire institution because cell phones have
been used to aid in escapes, used to introduce contraband into the
institution, and used to communicate with individuals outside the
prison, possibly for illegal activity. (Id.) Petitioner received
a copy of the DHO report on April 8, 2018, which advised him of
his

right

to

appeal

through

the

BOP’s

administrative

remedy

procedures within 20 calendar days. (Id.)
Petitioner’s attempt to appeal the DHO’s finding to the BOP’s
Northeast Regional Director was rejected because all four copies
of the appeal were not legible. (Moran Decl., ECF No. 6-1, ¶5 and
Ex. 2, ECF No. 6-3 at 2.) He was given ten days to correct and
resubmit the appeal. (Id.) The Regional Director received the
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resubmission on May 13, 2016 but rejected it because it was
untimely (due on May 8) and unsigned. (Moran Decl., ECF No. 6-1,
¶5 and Ex. 2, ECF No. 6-3 at 2.)
Petitioner appealed to the Central Office, which received his
appeal on June 21, 2016. (Moran Decl., ¶6.) Petitioner failed to
sign the appeal and the Central Office concurred with the Regional
Director’s rejection. (Id.; Ex. 2, ECF No. 6-3 at 4.) Petitioner
was permitted to correct the submission and send it to the Regional
Director. (Id.) Instead, Petitioner refiled in the Central Office
on August 2, 2016. (Id.) The Central Office rejected the appeal
and instructed: “If staff provide[d] a memo stating the late filing
was not your fault, then re-submit to the level of original
rejection.” (Id.)
II.

THE PETITION, RESPONSE AND REPLY
A.

The Petition

Petitioner alleges the following. He was found guilty of
possessing a cell phone on January 9, 2016 in FCI Fort Dix. (Pet.,
ECF No. 1 at 2.) On that day, two correctional officers searched
Petitioner’s room. (Id.) All inmates in the room were patted-down
and searched with metal detectors and told to leave the room. (Id.)
The officers then claimed to have discovered a cell phone charger
inside a pair of rubber gloves on top of Petitioner’s assigned
bunk. (Id.)

5

Petitioner

submitted

a

timely

appeal

of

the

DHO’s

determination of his guilt to the BOP Northeast Regional Office
(“Regional Office”). (Pet., ECF No. 1 at 2.) The Regional Office,
however, rejected that appeal because it did not contain a complete
set

of

carbon

rejection

until

copies.
May

6,

(Id.)
2016,

Petitioner
two

days

did

not

before

it

receive
had

to

the
be

resubmitted to the Regional Office. (Id.) Petitioner immediately
resubmitted the appeal, but it was denied as untimely. (Id.)
Petitioner was instructed to obtain a memo from a staff member
stating the untimeliness was not his fault, but he could not find
a staff member who was willingly to verify the date he received
the rejection from the Regional Office, which was delivered via
regular institution mail. (Id.) Petitioner attempted to appeal to
the Central Office but was twice rejected. (Id.)
Petitioner

asserts

cause

and

prejudice

to

excuse

the

administrative exhaustion requirement. (Id. at 4.) Petitioner
submits that the ten days he was provided to correct his appeal to
the Regional Office was insufficient time to “travel in the US
Postal system from Philadelphia to FCI Fort Dix, the processing
time in the Fort Dix mailroom, the time to correct the error by
Petitioner, and the time to travel back to Philadelphia via the
USPS.” (Id.) Because administrative rejections from the Regional
Office are not treated as “legal mail,” they are not delivered to
inmates in an expedited manner. (Id.) Thus, Petitioner received
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the first rejection notice on May 6, 2016, with only two days
remaining for the Regional Office in Philadelphia to receive his
corrected appeal, making compliance impossible. (Pet., ECF No. 1
at 4.)
Petitioner was permitted an opportunity to provide a staff
memo stating the late filing was not his fault. (Pet., Ex. G, ECF
No. 1-2 at 10.) Petitioner asked numerous staff members for a memo
but none were willing to provide it. (Pet., ECF No. 1 at 4-5; Ex.
H, ECF No. 1-2 at 21.) Petitioner submits his procedural default
of the inmate grievance process should be excused because it was
caused by the insufficient time he was given to respond to a
rejection notice and staff’s unwillingness to provide him a memo
excusing the untimeliness. (Pet., ECF No. 1 at 5-7.)
On the merits of the petition, Petitioner contends “[v]arious
inconsistencies and irregularities raise serious doubts about the
Incident

Report

written

to

support

Petitioner’s

disciplinary

charges.” (Pet., ECF No. 1 at 7.) Petitioner asserts the DHO’s
finding of guilt must be supported by the “greater weight of the
evidence.” (Id. at 7-8.)
Petitioner maintains that Officer Golden’s and Officer Boze’s
reports so closely mirror each other “it is reasonable to assume
(likely even) that one was copied from the other or both were
written by the same person,” which calls into question the veracity
of the reports. (Id. at 8.) Petitioner also challenges the two
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officers’ statements because neither of their reports reflect that
there was another lieutenant in the room during the pat-down
searches, instead the reports incorrectly state the lieutenant was
called to the scene later. (Pet., ECF No. 1 at 8-9.)
Further, Petitioner postulates that it was impossible for
both officers to have witnessed the

exact same thing “while

simultaneously conducting thorough searches for the contraband on
other inmates.” (Id. at 9.) Finally, Petitioner describes the
officers’ reports as nonsensical because if they had observed
Petitioner attempting to conceal an object, why did they not seize
the object immediately. (Id.)
B.

The Response

Respondent contends the Court should dismiss the petition
because Petitioner failed to exhaust his administrative remedies.
(Response, ECF No.

6 at 14.) Petitioner never corrected the

mistakes in his administrative filings and never received a final
decision on the merits. (Id.)
Petitioner claims he did not receive the Regional Director’s
rejection of his appeal in time to correct the deficiency within
the ten-day period permitted, and he was unable to get a staff
member to write a memo stating his untimeliness was not his fault.
(Id.) Respondent suggests the Court should dismiss the petition
because Petitioner has not shown that any staff member could
corroborate his claim that the rejection notice was untimely and
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precluded him from exhausting administrative remedies. (Response,
ECF No. 6 at 14-15.)
On the merits of the petition, Respondent asserts Petitioner
was provided every due process safeguard he was entitled to in the
DHO hearing, and the DHO’s decision was supported some evidence.
(Id. at 15.) Therefore, the petition should be denied. (Id.)
C.

The Reply

In reply, Petitioner contends he met the cause and prejudice
standard to excuse procedural default of the administrative remedy
procedure. (Reply, ECF No. 9.) Petitioner asserts that each staff
member he approached to obtain a memo excusing the untimeliness of
his resubmission to the Regional Office could have verified when
he received the late rejection. (Id. at 4.) Petitioner requested
a memo from the officer who distributed mail to his housing unit
that day, he spoke to his Unit Team Counselor, and he submitted
written requests to mailroom staff, to whom he did not have direct
access. (Id. at 4-5.)
II.

DISCUSSION
A.

Exhaustion of Administrative Remedies

An inmate ordinarily must exhaust his administrative remedies
before filing a habeas petition under 28 U.S.C. § 2241. Moscato v.
Federal

Bureau

of

Prisons,

98

F.3d

757,

760

(3d

Cir.

1996)

(citations omitted). A failure to satisfy the procedural rules of
the

BOP’s

administrative

remedy
9

process

may

constitute

a

procedural default that bars review of the §

2241 petition.

Moscato, 98 F.3d at 760.
When an inmate appeals a DHO decision, he is permitted to
skip the usual step of appealing to the warden and appeal directly
to the BOP Regional Director for the region where the inmate is
located. 28 C.F.R. § 542.14(d). If the Regional Director denies
the appeal, the inmate may appeal that decision to the General
Counsel (a “Central Office Appeal”) within 30 calendar days from
the date of the Regional Director’s response. 28 C.F.R. § 542.15(a)
and

(b)(3).

“Appeal

to

the

General

Counsel

is

the

final

administrative appeal.” Id. § 542.15(a)
An appeal may be rejected when it does not meet a requirement
of the remedy program. 28 C.F.R. § 542.17(a). The prisoner must be
given a reason for the rejection, and if the defect is correctable,
he shall be informed of a reasonable amount of time in which to
correct the defect and resubmit the appeal. 28 C.F.R. § 542.17(b).
Time limits may be extended when an inmate demonstrates a valid
reason for delay. 28 C.F.R. § 542.15(a).
If

an

inmate

procedurally

defaults

his

administrative

remedies, he must show cause and prejudice to excuse the default.
Moscato, 98 F.3d at 762. To demonstrate cause for a procedural
default, a petitioner must show that an objective factor external
to the petitioner impeded his efforts to comply with the procedural
rule. Murray v. Carrier, 477 U.S. 478, 488 (1986).
10

Petitioner

has

procedurally

defaulted

his

administrative

remedies because he did not correct his Regional Office appeal and
then proceed to the Central Office. See Millhouse v. Lewisburg,
666 F. App’x 98, 100 (3d Cir. 2016) (Petitioner procedurally
defaulted administrative remedies by failing to seek review in the
Central Office.) Petitioner, however, has shown cause to excuse
his

procedural

default.

Petitioner

was

unable

to

excuse

the

untimeliness of resubmission of his appeal to the Regional Office
because no staff member was willing to provide him with a memo
stating the untimeliness was not his fault. Petitioner provided a
credible explanation that the untimeliness of his appeal was not
his fault, and that he could not obtain the necessary staff memo
to continue with the administrative remedy process. Petitioner was
prejudiced by his inability to get the staff memo because it
precluded any review of the DHO’s hearing decision. Therefore, the
Court will address the merits of the petition.
B.

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—
. . .

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(3) He is in custody in violation of the
Constitution or laws or treaties of the
United States; . . .
Prisoners have a protected due process liberty interest in
earned good conduct time. Wolff v. McDonnell, 418 U.S. 539, 557
(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 confinement by extending the length of
imprisonment.”)

The

Supreme

Court

described

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, 418 U.S. at 564-70.
The decision of the DHO must be upheld if there is “some
evidence” to support it. Hill, 472 U.S. at 455 (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 108 is defined as a “Prohibited Act” in 28 C.F.R. §
541.3:
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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).
B.

Analysis
Petitioner’s only claim is that the DHO’s hearing decision

was not supported by sufficient evidence. Petitioner asserts the
DHO’s decision must be supported by the “greater weight of the
evidence,” whereas Respondent claims the DHO’s decision need only
be supported by “some evidence.”
The Supreme Court has held “that revocation of good time does
not comport with ‘the minimum requirements of procedural due
process,’ [Wolff, 418 U.S. at 558] unless the findings of the
prison disciplinary board are supported by some evidence in the
record.” Hill, 472 U.S. at 454. “Ascertaining whether this standard
is satisfied does not require examination of the entire record,
independent

assessment

of

the

credibility

of

witnesses,

or

weighing of the evidence. Instead, the 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. “The
Federal Constitution does not require evidence that logically

13

precludes any conclusion but the one reached by the disciplinary
board.” Id. at 457.
Here, the DHO’s decision was supported by some evidence,
including the reports of Officer Golden and Officer Boze, and the
photograph of the cell phone that was confiscated from inside a
rubber glove on Petitioner’s bunk. Petitioner’s attacks on the
credibility of the officers’ reports are unpersuasive because the
reports are not so similar as to lead to the conclusion that they
must have been fabricated. There is nothing in the two reports
suggesting the officers could not have observed what each reported
observing.
Petitioner’s

contention

that

the

officers

would

have

immediately seized the cell phone if they had in fact observed
Petitioner concealing something in a rubber glove while in his
cell is equally unavailing. It is reasonable to infer the officers
believed it was safer to remove Petitioner and the other inmates
from the cell before looking to see what Petitioner was concealing
in the glove. This Court does not find the veracity of the reports
so improbable as to render the DHO’s decision arbitrary

and

unsupported by some evidence.
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.
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An appropriate Order follows.

Dated:

August 16, 2018
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge

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