BERRY v. KIRBY
OPINION. Signed by Judge Noel L. Hillman on 4/24/2019. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WARDEN MARK A. KIRBY,
LARRY LAVONNE BERRY,
Civ. Action No. 17-1983 (NLH)
Larry Lavonne Berry, No. 70372-056
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
Caroline A. Sadlowski, Esq.
John Andrew Ruymann, Esq.
Office of the U.S. Attorney
District Of New Jersey
970 Broad Street, Suite 700
Newark, NJ 07102
Counsel for Respondent
HILLMAN, District Judge
Petitioner Larry Lavonne Berry (“Petitioner”), a prisoner
presently incarcerated at the Federal Correctional Institution
(“FCI”) at Fairton in Fairton, New Jersey, filed this Petition
for Writ of Habeas Corpus Under 28 U.S.C. § 2241, challenging an
institutional disciplinary decision that resulted in, inter
alia, a loss of good time credits.
ECF No. 1.
submitted an Answer, ECF No. 9, and Petitioner submitted his
Reply, ECF No. 14.
The Petition is now ripe for disposition.
For the reasons that follow, the Petition will be denied.
On June 4, 2009, Petitioner was sentenced in the U.S.
District Court for the Eastern District of North Carolina to 258
months’ imprisonment for several offenses related to armed bank
See No. 08-cr-247 (E.D.N.C.).
Petitioner is presently
incarcerated at the Federal Correctional Institution at Fairton
in Fairton, New Jersey, and has a projected release date of
March 16, 2027.
See No. 17-cv-1983, ECF No. 9 at 7 (D.N.J.).
On February 1, 2016, while Petitioner was incarcerated at
the Federal Correctional Institution at Fort Dix in Fort Dix,
New Jersey, Incident Report No. 2811071 was issued charging him
with “Use of Any Narcotic,” a violation of Bureau of Prisons
(“BOP”) Code 112.
See ECF No. 9-2 at 4.
The incident report
written by Special Investigative Services Officer B. Virgillo
provides as follows:
I received written notification from Phamatech
Laboratories which stated that specimen number
BOP0002433798, which was tested under Suspect, had
tested positive for Marijuana metabolite. Specimen
number BOP0002433798 was assigned to the urine sample
for inmate Berry, Larry #70372-056, who provided it on
January 12, 2016 at 10:50. Health Services was
notified and provided a memorandum on February 1,
2016, 12:30, stating that medication was not
prescribed to inmate Berry which could have caused a
positive test for the above mentioned drug.
On February 1, 2016, at approximately 2:48 p.m., the
incident report was delivered to Petitioner.
was advised of his right to remain silent during the
disciplinary process but stated to the investigating officer
that, “I was never order [sic] to give urine sample to the staff
Id. at 5.
Per the incident report, the investigating
staff member referred the incident report to the Unit Discipline
Committee (“UDC”) for a hearing due to the seriousness of the
On February 5, 2016, the initial hearing was held before
Id. at 5.
At the hearing, Petitioner stated that he
understood his rights and that “[t]his place is a set up.”
The initial hearing notes provide that Petitioner
declined to call any witnesses.
The UDC concluded that
Petitioner had been appropriately charged with a violation of
Code 112 and referred the case to the Discipline Hearing Officer
If Petitioner were found guilty, the UDC
recommended a loss of good conduct time and a loss of all
privileges for a period of time.
that day of his rights before the DHO.
Petitioner was advised
See id. at 7.
Petitioner did not request a staff representative or witnesses
in the proceedings before the DHO.
See id. at 9.
On February 26, 2016, the DHO convened the hearing.
id. at 11.
At the hearing, Petitioner did not request a staff
representative or witnesses and stated that he understood his
rights and was ready to proceed.
committed the prohibited act.
Petitioner denied that he
He admitted that he had
signed the chain-of-custody form for the urine sample, but
claimed that, contrary to his inmate certification on the form,
he did not provide a urine sample.
The chain-of-custody form
contains a section entitled “inmate certification,” in which
Petitioner certified: “I have provided this specimen for the
purpose of a drug screen.
I acknowledge that the container was
sealed with the tamper-proof seal in my presence and that the
specimen number provided on this form and on the label affixed
to the specimen container are the same.” 1
It does not appear
from the DHO report that Petitioner argued that the incident
report was issued in retaliation for his refusal to withdraw
complaints he submitted under the Prison Rape Elimination Act
(“PREA”), an issue he raises for the first time in this
See generally ECF No. 9-2 at 11-12.
See BOP Program Statement 6060.08, Attachment A, “Standard
Procedures for Collecting Urine Surveillance Samples” (“The
inmate will then certify by signing the laboratory form that the
specimen provided to the collection officer was provided by the
inmate, sealed in the inmate’s presence, and the information on
the form and label is correct.”).
Based on all the evidence, the DHO determined that
Petitioner committed the prohibited act as charged.
Id. at 12.
The DHO relied upon the chain-of-custody form for the urine
sample that had been drawn from Petitioner, a report from
Pharmatech Laboratories indicating that said urine specimen had
tested positive for marijuana, and a memorandum signed by the
chief pharmacist at FCI Fort Dix providing that Petitioner had
not been prescribed any medication that would cause a false
See ECF No. 9-2 at 12 (DHO report), 15 (chain-of-
custody form); 16 (lab report); 17 (memorandum).
The DHO also
noted that he considered Petitioner’s statement that he had not
provided the urine sample but gave greater weight to the
evidence provided by staff.
Id. at 12.
The DHO sanctioned Petitioner with a loss of 40 days of
good conduct time and 15 days of disciplinary segregation, which
was suspended pending 90 days of clear conduct.
Id. at 13.
DHO found that these sanctions were warranted because the use of
drugs not prescribed by BOP medical staff demonstrates a
disregard for the rules and regulations at FCI Fort Dix and
could also result in Petitioner becoming indebted to other
individuals for providing drugs, which could lead to physical
In addition, the DHO explained that the
sanctions were imposed to demonstrate the seriousness of the
violations to Petitioner as well as to other inmates.
DHO then advised Petitioner of his right to appeal.
On April 21, 2016, Petitioner filed a Regional
Administrative Remedy Appeal of Incident Report Number 2811071
with the Northeast Regional Office of the Bureau of Prisons,
which was denied on May 19, 2016.
See ECF No. 9-1 at 9-11.
June 28, 2016, Petitioner appealed to the BOP Office of General
Counsel, which denied the appeal on April 13, 2017.
Id. at 12-
Petitioner then filed the instant habeas petition.
In it, Petitioner explains that he signed a chain-of-custody
form for a urine sample on January 12, 2016, however before the
urine sample was taken, “the alarm went off officer need
assistance, I was taken straight to the [SHU] special housing
unit, therefore never giving any urine sample.”
He goes on
to explain that the urine for the lab test used must have been
someone else’s and that he believes that this incident report is
in retaliation for writing two PREA reports on two officers,
Officer Wright and Officer S. Fitzgerald.
that the forty days of good conduct time he was docked be
reinstated and the incident report be removed from his record.
See id. at 2, 8.
A. Legal Standard
A habeas corpus petition is the proper mechanism for a
federal prisoner to challenge the “fact or duration” of his
confinement, including challenges to prison disciplinary
proceedings, that affect the length of confinement, such as
deprivation of good time credits.
See Preiser v. Rodriguez, 411
U.S. 475, 498–99 (1973); Muhammad v. Close, 540 U.S. 749 (2004);
Edwards v. Balisok, 520 U.S. 641 (1997); Wilkinson v. Dotson,
544 U.S. 74 (2005).
A challenge to a disciplinary action
resulting in the loss of good conduct time is properly brought
pursuant to § 2241, “as the action could affect the duration of
the petitioner's sentence.”
Queen v. Miner, 530 F.3d 253, 254
n.2 (3d Cir. 2008).
Petitioner is challenging the result of a prison
disciplinary hearing where he was found guilty of violating Code
112, for the “Use of Any Narcotic,” and sanctioned with the loss
of forty days of good conduct time by the DHO.
Prisoners are guaranteed certain due process protections
when a prison disciplinary proceeding may result in the loss of
good time credits.
See Wolff v. McDonnell, 418 U.S. 539, 564-65
The due process protections afforded an inmate must
include (1) a written notice of the charges at least twenty-four
hours prior to a hearing; (2) an opportunity to call witnesses
and present evidence in his defense; (3) an opportunity to
receive assistance from an inmate representative; (4) a written
statement of the evidence relied on and the reasons for the
disciplinary action; and (5) an appearance before an impartial
decision making body.
See Crosby v. Piazza, 465 F. App’x 168,
171-72 (3d Cir. 2012) (citing Wolff, 418 U.S. at 563-71).
Additionally, the revocation of good time only satisfies the
minimum requirements of procedural due process when the findings
of the prison disciplinary board are supported by “some
evidence” in the record.
Lang v. Sauers, 529 F. App’x 121, 123
(3d Cir. 2013) (citing Superintendent v. Hill, 472 U.S. 445, 454
This standard is minimal and does not require an
examination of the entire record, an independent assessment of
the credibility of witnesses, or a weighing of the evidence.
Id. (citing Thompson v. Owens, 889 F.2d 500, 502 (3d Cir.
The standard is simply whether “there is any evidence
in the record that could support the conclusion reached by the
disciplinary board.” Id. (quoting Hill, 472 U.S. at 455-56).
It appears, and he does not allege to the contrary, that
Petitioner was provided with all the due process safeguards
identified in Wolff.
Petitioner received written notice of the
charges against him at least twenty-four hours prior to the
hearings, ECF No. 9-2 at 4, 9, 11; he had an opportunity to call
witnesses and present evidence in his defense, which he
declined, id. at 7, 9, 11; he had an opportunity to receive
assistance from a representative, which he also declined, id. at
7, 9, 11; he received a written statement of the evidence relied
on and the reasons for the disciplinary action, id. at 12; and
he appeared before an impartial decision-making body, id. at 1113. 2
See Wolff, 418 at 563-71.
Petitioner was thus afforded all
due process to which he was entitled under Wolff.
To the extent that Petitioner argues that the decision of
the DHO was not supported by the record, the Court finds that
there is some evidence in the record to support the DHO’s
A review of the record demonstrates that the DHO
relied on the Incident Report, the investigation, the chain-ofcustody form with inmate certification for the urine sample, the
lab report, and the memorandum verifying that Petitioner was not
prescribed any medication that would yield a positive report
from his urine sample when making the decision.
See ECF No. 9-2
During the investigation and the hearing, Petitioner
admitted that it was his signature on the inmate certification
on the chain-of-custody form for the urine sample.
combined with the lab report and memorandum certainly provide
more than some evidence in the record to support the DHO’s
decision that Petitioner violated Code 112.
Petitioner does not allege that the DHO, who determined that he
violated Code 112 and imposed the sanction, was not impartial.
Notably, this Court’s role is limited to determine whether
“some evidence” exists in the record to support the DHO’s
decision; the Court does not reassess the evidence, take new
evidence, or evaluate witness credibility.
See, e.g., Thompson
v. Owens, 889 F.2d 500, 501 (3d Cir. 1989) (dismissing habeas
petition because “positive urinalysis results on samples that
officials claim to be [the inmate’s] constitute some evidence”
and “independent assessment” of the urinalysis is “not
required”); McGee v. Scism, 463 F. App’x 61, 62 (3d Cir. 2012)
(“The ‘some evidence’ standard does not require examination of
the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence.”); Perez v. Rectenwald,
No. 12-cv-2114, 2013 WL 5551266, at *4 (M.D. Pa. Oct. 8, 2013)
(“The Court’s responsibility under Hill is not to weigh this
evidence or assess its probative value, but merely to determine
that at least some evidence exists to support the conviction”).
Because there is some evidence in the record to support a
violation of Code 112, Petitioner’s due process rights were not
violated and he is not entitled to habeas relief.
Seymour/Jones v. Kane, No. 92-1486, 1993 WL 235919, at *4 (E.D.
Pa. June 30, 1993) (finding “some evidence” in the nature of a
positive urinalysis result that showed sample belonged to
plaintiff to support DHO’s decision despite plaintiff’s
allegation that sample was tampered with).
Next, Petitioner argues that the incident report was issued
in retaliation for exercising his First Amendment right to
report Officers Fitzgerald and Wright under the Prison Rape
See ECF No. 1, 14.
Although arising in the
civil rights context, such an argument may be cognizable in a §
2241 petition to the extent that it affects the duration of his
See McGee v. Scism, 463 F. App’x 61, 64 (3d Cir.
2012) (citing Queen v. Miner, 530 F.3d 253, 255 n.2 (3d Cir.
2008)); Speight v. Minor, 245 F. App’x 213, 215 (3d Cir. 2007).
A prisoner alleging that prison officials have retaliated
against him for exercising his constitutional rights must prove
that 1) the conduct in which he was engaged was constitutionally
protected, 2) he suffered “adverse action” at the hands of
prison officials, and 3) his constitutionally protected conduct
was a substantial or motivating factor in the decision to
See Carter v. McGrady, 292 F.3d 152, 157-58 (3d
Cir. 2002); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
Once a prisoner has made his prima facie case, the burden shifts
to the defendant to prove by a preponderance of the evidence
that it “would have made the same decision absent the protected
conduct for reasons reasonably related to penological interest.”
Rauser, 241 F.3d at 334 (incorporating Turner v. Safley, 482
U.S. 78, 89 (1987)).
There is no merit to Petitioner’s contention in light of
his allegations and the evidence in the record, especially his
chain-of-custody form with inmate certification for the urine
First, at no point during the disciplinary proceedings
did Petitioner raise the argument of retaliation and thus this
issue was not developed during the disciplinary proceedings and
It is not the Court’s province to reopen the
administrative proceedings in this habeas matter, reassess the
weight of the evidence presented at the hearing, or entertain
new theories that lack evidentiary support.
Second, Petitioner has not met his burden to show that his
exercise of a constitutional right was a substantial or
motivating factor for the DHO’s decision to discipline him given
the evidence relied upon by the DHO in the report.
Petitioner states that Case Manager J. Wright is the sister of
Officer Wright, against whom Petitioner filed a PREA report,
Case Manager Wright’s only involvement in the disciplinary
proceedings was to deliver to Petitioner the notice of the DHO
hearing and a description of his inmate rights.
She was not
involved in the incident, incident report, investigation, UDC
decision, or DHO hearing.
Petitioner makes no allegation that
any reporting employee, investigator, UDC, or DHO were biased or
had any motive to retaliate against him for filing the PREA
Third, even if he could demonstrate a prima facie case,
there is evidence in the record that shows that the DHO would
have made the same decision absent the protected conduct for
reasons reasonably related to a legitimate penological interest.
See Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002)
(applying Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001));
Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) (holding
that if a prison disciplinary committee's finding of a violation
of prison rules is based on some evidence, that “finding
essentially checkmates [a] retaliation claim”) (citing Hill, 472
U.S. at 454–56).
Here, the evidence demonstrates that
Petitioner certified that the urine sample was his on the chainof-custody form and the urine sample tested positive for a
narcotic in violation of Code 112.
Finally, to the extent Petitioner also argues that the loss
of forty days of good time credit violates the Eighth Amendment
because it is “grossly disproportionate” to the severity of the
offense, see Rummel v. Estelle, 445 U.S. 263, 271-74 (1980), the
Court notes that it is within the range of available sanctions
for a violation of Code 112.
See 28 C.F.R. § 541.3.
Shelton v. Jordan, 613 F. App'x 134, 135 (3d Cir. 2015)
(“[g]iven the severity of [petitioner’s] offenses, and because
the sanctions fall within the applicable range permitted by the
regulation, we conclude that the punishment here did not violate
the Eighth Amendment”).
As such, the Court finds that the
sanction imposed on Petitioner did not violate the Eighth
For the reasons set forth above, the Petition will be
An appropriate Order follows.
Dated: April 24, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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