CRUZ v. ORTIZ
Filing
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OPINION. Signed by Judge Renee Marie Bumb on 6/11/18. (jbk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ANGEL CRUZ,
Petitioner
v.
WARDEN DAVID ORTIZ,
Respondent
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Civ. Action No. 17-6261(RMB)
OPINION
BUMB, District Judge
On August 18, 2017, Petitioner Angel Cruz (“Cruz”), a prisoner
confined in the Federal Correctional Institution in Fort Dix, New
Jersey (“FCI Fort Dix”), filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2241. (Pet., ECF No. 1.) On November 20,
2017, Respondent filed Respondent’s Answer to Petition For a Writ
of Habeas Corpus. (Answer, ECF No. 3.) For the reasons discussed
below, the Court denies the petition.
I.
BACKGROUND
On February 11, 2016, at FCI Fort Dix, Cruz was cited for
violation of Code 108, possession or introduction of a hazardous
tool, hacksaw, blade, body armor, maps, handmade rope, or other
escape paraphernalia. (Pet., ECF No. 1-4 at 1.) Correctional
Officer M. Boze wrote the incident reported and stated:
On February 11, 2016, at approximately 11:20
A.M. I, Officer M. Boze, acting as the East
Compound Officer #2, conducted a search of
room 219 in Housing Unit 5752-F in conjunction
with East SIS Lieutenant Miosi. When we
entered the room I observed inmate Cruz,
Angel, register number 70613-067, attempt to
conceal a rectangular black object resembling
a phone by sliding it underneath a pillow
laying on the lower bed of bunk 4. I ordered
all inmates present to submit to a pat search
and to leave the room. While I/M Cruz was being
searched and until he left the room, I
discerned that his eyes repeatedly returned to
the lower bed of bunk 4. I/M Cruz’s allotted
bed assignment is room 219, 4-lower. When I
searched the area I immediately recovered one
(1) Black LG Mobile Cellular Smart Phone with
attached charger underneath the pillow lying
on the lower bed of bunk 4, the same location
that I had observed I/M Cruz place an object
when we entered the room and the bed to which
he is assigned. I notified the East Operations
Lieutenant.
(Answer, Declaration of Tara Moran (“Moran Decl.”), Ex. 5, ECF No.
3-3 at 18.) Upon receipt of the incident report, Cruz was advised
of his right to remain silent during the disciplinary process and
informed
that
his
silence
could
be
used
to
draw
an
adverse
inference against him. (Id. at 19.) Cruz stated that he had “no
comment.” (Id.) He did not request a staff representative or ask
to
call
any
witnesses.
(Id.)
At
the
conclusion
of
the
investigation, the investigating lieutenant referred the incident
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report to the unit discipline committee (“UDC”) for an initial
hearing. (Answer, Moran Decl., Ex. 5, ECF No. 3-3 at 19.)
On February 16, 2016, Cruz was advised of his right to appear
at the UDC hearing and chose to waive his appearance. (Id., Ex. 6,
ECF No. 3-3 at 22.) Cruz also received a “Notice of Discipline
Hearing Before the DHO,” informing him that his case would be
referred to a DHO.
(Id., Ex. 8, ECF No. 3-3 at 26.) Cruz indicated
on this form that he did not want to have a staff representative
or call any witnesses. (Id.) Cruz also signed an “Inmate Rights at
Discipline Hearing” form, acknowledging that staff had advised him
of his rights in connection with the disciplinary hearing.
(Id.,
Ex. 7, ECF No. 3-3 at 24.)
The disciplinary hearing was held on February 25, 2016. (Id.,
Ex. 9, ECF No. 3-3 at 28-30.) Cruz made the statement that “he was
talking with family.” (Id., Section III.B.) In finding Cruz guilty,
the DHO considered Cruz’s statement that he was talking with
family, Officer Boze’s description in the incident report of what
he observed, the chain of custody, a photo of the cell phone, and
“tobacco.” (Id. at 29.) The DHO wrote, “[b]ased on the evidence I
find that you violated prohibited acts of Code 108, Possession of
a
Hazardous
Tool,
and
Code
331
Possession
of
Non-Hazardous
contraband. (Id., Section V.) However, the DHO’s report also
indicates that Cruz was charged only with violating Offense Code
108. (Id. at 28.) The attachments to the DHO report did not include
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anything about tobacco, nonhazardous contraband. (Answer, Moran
Decl., Ex.9, ECF No. 3-3 at 31-33.)
The DHO imposed the following sanctions for violation of Code
108: (1) disallowance of 41 days of good conduct time; (2) 15 days
of disciplinary segregation; (3) restriction of commissary and
visiting privileges for 90 days; (4) restriction of email and
telephone privileges for 18 months; and (5) a $500.00 monetary
fine. (Id. at 29, Section VI.) The DHO explained that he imposed
these sanctions because an inmate who possesses a hazardous tool
in a correctional institution threatens the safety and security of
not only the inmate involved, but that of the entire institution.
(Id., Section VII.) Cellphones are hazardous tools because they
can be used to arrange escapes, arrange contraband instructions,
and
allow
inmates
contact
outside
the
institution
without
knowledge of staff, possibly for illegal activities. (Id.)
Cruz appealed the decision of the DHO to the BOP’s Northeast
Regional Office on or about May 3, 2016. (Moran Decl., Ex. 2, ECF
No. 3-3 at 6-7.) He challenged the accuracy of the DHO report based
on its reference to Code 331 and possession of tobacco because he
was not charged under this Code. (Id. at 6.) He denied making the
statement “I was talking with my family” at the DHO hearing. (Id.
at 7.) Finally, he challenged the sufficiency of the evidence
against him, and complained about the severity of the fine. (Id.)
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On June 2, 2016, the Regional Director remanded to the DHO
for further review and rehearing. (Moran Decl., Ex. 2, ECF No. 33 at 8.) At the DHO rehearing on February 10, 2017, Cruz asked to
call inmate Eric Bradley as a witness. (Moran Decl., Ex. 10, ECF
No. 3-3 at 35-37.) Bradley testified that on February 11, 2016,
around 11:20 a.m., he got up to go to the laundry. (Id. at 35,
Section
III.C.2.)
However,
officers
arrived
to
pat
search
everyone, and directed Cruz to stay where he was. (Id.) The
officers sent the inmates out [of the cell] but did not check their
laundry bag[s]. (Id.) Cruz was taken to the SHU. (Id.)
Petitioner also made a statement at the rehearing. The DHO
Hearing Report indicates that Cruz said he “was not near the bed
and he was talking with another inmate when the officer came in.
. . . [T]he officer[s] did come in and conduct a search, but they
did not see him do anything.” (Id., Section III.B.)
At the rehearing, the DHO considered the original incident
report and the three items attached to the original incident
report: 1) the chain of custody log dated February 11, 2016; 2) a
photo sheet with one black and white photo of a cell phone, and 3)
a February 11, 2016 memorandum submitted by Lt. J. Miosi. (Id. at
36, Section V.) In Miosi’s memorandum, he reported that on February
11, 2016, he had information that Cruz was possibly in possession
of a cell phone; that he proceeded to Cruz’s cell with Officer
Boze; that he observed Cruz place a cell phone under the pillow on
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his assigned bed; that Officer Boze located a cell phone in the
same location that Cruz was observed placing it; and that, as he
escorted Cruz to the lieutenant’s complex, Cruz admitted “to having
the cell phone so that he could call his family” and that he paid
$800 for the phone. (Moran Decl., Ex. 10, ECF No. 3-3 at 36,
Section V.) Based upon all this evidence, the DHO concluded that
Cruz committed the prohibited act of Code 108: possession of a
hazardous tool. (Id.) The DHO imposed the same sanctions he had
imposed following the first hearing. (Id., Section VI.)
On or about February 21, 2017, Cruz filed an appeal of the
rehearing to the Regional Director. (Moran Decl., Ex. 3, ECF No.
3-3 at 10-11.) He again challenged the evidence relied upon by the
DHO and claimed that the DHO report included errors. (Id.) On March
24, 2017, the Regional Director denied the appeal. (Id. at 12.)
Cruz appealed the Regional Director’s decision to the BOP’s
Central Office. (Moran Decl., Ex. 4, ECF No. 3-3 at 14-15.) On
August 28, 2017, the Central Office denied the appeal, finding
that the DHO’s determination was supported by the evidence, that
Cruz received due process at the hearing, and the sanctions imposed
were commensurate to the severity level of Cruz’s offense. (Id. at
16.)
Petitioner asserts his loss of 41 days of good conduct time
violated his right to due process, based on the same four grounds
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he raised on appeal of the first DHO decision. (Pet’s Mem., ECF
No. 1-4 at 7-9.)
II.
DISCUSSION
A.
Standard of Law
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; . . .
“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.” Denny v. Schultz, 708 F.3d 140, 143-44 (3d Cir.
2013) (citing 18 U.S.C. § 3624(b); 28 C.F.R. § 523.20 (2008)).
Based
on
this
statutorily
created
right,
“a
prisoner
has
a
constitutionally protected liberty interest in good time credit.”
Id. (quoting Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991)
(citing Wolff v. McDonnell, 418 U.S. 539, 556–57 (1974)).
The
Supreme
Court
defined
the
due
process
protections
required where a prison disciplinary hearing may result in loss of
good conduct time. The five due process protections in a prison
disciplinary proceeding include:
1) the right to appear before an
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impartial
decision-making
body;
2)
twenty-four
hour
advance
written notice of the charges; 3) an opportunity to call witnesses
and present documentary evidence, provided the presentation of
such does not threaten institutional safety or correctional goals;
4) assistance from an inmate representative, if the charged inmate
is illiterate or complex issues are involved; and 5) a written
decision by the fact-finder including the evidence relied on and
the reason for the disciplinary action. Wolff, 418 U.S. at 54671.
Further,
the
DHO’s
decision
must
be
supported
by
“some
evidence.” Superintendent, Massachusetts Correctional Inst. at
Walpole v. Hill, 472 U.S. 445, 455 (1985).
B.
Analysis
1.
Whether Cruz was prejudiced by the admission of
evidence regarding tobacco products at the hearing,
although he was not charged with possession of tobacco
products
(Petr’s Mem., ECF No. 1-4 at 7.) Respondent contends that even if
the DHO improperly considered tobacco at the first hearing, any
error was cured at the rehearing because the second DHO report
makes clear that the DHO only considered evidence related to the
cell phone. (Answer, ECF No. 3 at 23.) Respondent is correct. There
is no mention of tobacco products in the DHO’s hearing report from
the rehearing on February 10, 2017. (Moran Decl., Ex. 10, ECF No.
3-3 at 35-37.)
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2.
Whether the DHO could consider Cruz’s alleged
statement that he was talking with his family [on the
cell phone] where Cruz denied making this statement.
(Petr’s Mem., ECF No. 1-4 at 8.)
Respondent
contends
that,
at
the
rehearing,
Cruz
denied
admitting at the first hearing that he used a cell phone to talk
to his family. (Answer, ECF No. 3 at 18.)
Therefore, he was not
prejudiced at the rehearing. Respondent further asserts that even
if Cruz is really challenging the statement from Lieutenant Miosi’s
memorandum (that on the day Cruz’s cell was searched he admitted
that he had the phone to call his family), hearsay statements are
permitted in prison disciplinary hearings. (Id.)
Hearsay is permissible in a prison disciplinary proceeding.
Griffin v. Spratt, 969 F.2d 16, 22 (3d Cir. 1992); Carter v.
Lawler, 446 F. App’x 420, 423 (3d Cir. 2011) (“a decisionmaker may
rely on hearsay evidence in a prison disciplinary proceeding.”)
Moreover, when an inmate challenges the sufficiency of the evidence
supporting the decision of a disciplinary hearing officer, “the
‘some evidence’ standard does not require . . . independent
assessment of the credibility of witnesses or weighing of the
evidence.” Speight v. Minor, 245 F. App’x 213, 216 (3d Cir. 2007)
(per curiam) (quoting Hill, 472 U.S. at 455-56.) Cruz was not
denied due process by the DHO’s consideration of hearsay in
Lieutenant Miosi’s memorandum or the DHO’s partial reliance on the
hearsay statement. Cruz denied admitting he used a cell phone, but
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the DHO credited Miosi’s statement. This Court is not permitted to
assess the credibility of witnesses or weigh evidence submitted at
the DHO hearing.
3.
Whether the evidence was sufficient to
support the finding of guilt.
(Petr’s Mem., ECF No. 1-4 at 8.) Cruz contends that if the DHO
impermissibly relied on evidence of tobacco products being found
and impermissibly relied on Cruz’s alleged statement that he was
talking
to
his
family
on
the
cell
phone,
then
there
was
insufficient evidence to support the finding of guilt. (Id. at 89.)
Respondent
argues
that
the
“some
evidence”
standard
is
minimal and easily met here. (Answer, ECF No. 3 at 19.) At the
rehearing, the DHO relied on Officer Boze’s description of the
incident in the incident report; a photo of the phone that was
confiscated;
describing
a
chain
what
he
of
custody
observed
on
log;
the
and
day
Miosi’s
the
cell
memorandum
phone
was
confiscated from Cruz’s cell. (Id. at 19-20.)
The relevant question in testing whether the “some evidence”
standard is met is “whether there is any evidence in the record
that could support the conclusion reached by the disciplinary
board.” Hill, 472 U.S. at 455-56. As discussed above, hearsay
evidence may support a DHO’s finding of guilt. Additionally, an
officer’s statement in an incident report that he found a cell
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phone
in
the
inmate’s
assigned
living
area,
coupled
with
a
photograph of a cell phone the officer took in that area was
sufficient
to
meet
the
“some
evidence”
standard.
McGill
v.
Martinez, 348 F. App’x 718, 721 (3d Cir. 2009) (per curiam). Here,
there was more evidence than in McGill because two officers
described observing Cruz putting the cell phone under the pillow
of his assigned bed, where the cell phone was ultimately found,
and a photo of the cell phone was produced at the hearing. The
“some evidence” standard was clearly met.
4.
Whether the fine imposed was disproportionate to
the offense and constitutes an abuse of discretion.
(Petr’s Mem., ECF No. 1-4 at 9.) Cruz contends the DHO did not
explain why he sanctioned him with a $500 fine, and such a fine is
an abuse of discretion. (Id.) Respondent argues that this Court
lacks jurisdiction over a claim challenging the monetary fine
imposed as a prison disciplinary action because a fine does not
affect the fact or duration of confinement. (Answer, ECF No. 3 at
22, n.6.)
Generally, the only prison disciplinary sanction that can be
challenged in a habeas petition as a violation of due process is
a sanction that affects the fact or length of confinement, such as
loss of good conduct time.
See Reynolds v. Williamson, 197 F.
App’x 196, 199 (3d Cir. 2006) (citing Sandin v. Conner, 515 U.S.
472, 486 (1995); Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir.
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2002); Leamer v. Fauver, 288 F.3d 532, 540-42 (3d Cir. 2002)).
Even
if
the
courts
recognized
a
protected
property
interest
associated with prison disciplinary hearings, Cruz received all of
the
procedural
protections
due
in
a
prison
disciplinary
proceeding. Further, fines are permissible sanctions for violating
Code 108, a greatest severity level prohibited act. See 28 C.F.R.
§ 541.3 (Table 1, E.) A $500 fine for possession of a cell phone
in prison is not so disproportionate to the Code violation so as
to violate a due process property right.
III. CONCLUSION
For the reasons discussed above, the Court denies Cruz’s
petition for a writ of habeas corpus under 28 U.S.C. § 2241.
An appropriate Order follows.
Dated: June 11, 2018
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
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