Rivera v. Sauers

Filing 9

MEMORANDUM re Petition for Writ of Habeas Corpus 1 filed by Hector Rivera (Order to follow as separate docket entry)Signed by Honorable Yvette Kane on 01/17/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HECTOR RIVERA,
Petitioner

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v.
DILBERT SAUERS,
Respondent

No. 1:13-cv-2261
(Judge Kane)

MEMORANDUM
Before the Court is Petitioner Hector Rivera’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241. Petitioner is an inmate currently confined at the Federal Correctional
Institution at Allenwood-Low Security, Pennsylvania. In the petition, he alleges that his due
process rights were violated during a disciplinary hearing after which he was found guilty of
Possession of a Weapon, a prohibited act in violation of Code 104. (Doc. No. 1.) For the
reasons that follow, the petition will be denied.
I.

BACKGROUND
Petitioner is serving a 136-month federal sentence, imposed by the United States District

Court for the District of Nebraska, for Conspiracy to Distribute Methamphetamine. (Doc. No. 71 at 1.) His projected release date is March 3, 2020, via good conduct time release. (Id.) On
March 19, 2012, following an anonymous tip received via note, a correctional officer at FCIAllenwood Low Security recovered a nine-inch plastic weapon from under Petitioner’s mattress.
(Id. at 5.) In addition to Petitioner, the cell in which the weapon was found was occupied by his
cellmates Alvarez and Lopez. Since it could not be determined to whom the weapon belonged,
all three inmates received an incident report for the prohibited act of Possession of a Weapon, in
violation of Code 104. (Id. at 12.)

That same day, Petitioner received a copy of the incident report charging him with
Possession of a Weapon. On March 26, 2012, he was provided with a Notice of Discipline
Hearing Before the DHO and Inmate Rights at Discipline Hearing Form. (Id. at 21-23.)
Petitioner was advised of his rights and acknowledged he understood them as read. Appearing
before the Unit Discipline Committee (“UDC”), Petitioner stated that the shank was not his and
that he did not know who would have it in for him. (Id., Attach. B-1.) He did not request any
witnesses. The charges were then referred by the Unit Discipline Committee to the DHO for
further hearing.
On April 19, 2012, Petitioner was provided with a hearing in front of the DHO. At the
beginning of the hearing, the DHO advised him of his rights and he indicated that he understood
them. (Doc. No. 7-1 at 10-12.) Petitioner was offered the opportunity to present witness
testimony, and chose not to do so. He also declined to submit any documentary evidence. (Id.)
Petitioner did, however, choose to provide a statement. He informed the DHO there was an
inmate, Limand, who became upset when Petitioner got a tutoring job. Petitioner further
identified a friend of Limand, Blackmon, that lived across the hall from Petitioner and who may
have been involved in planting the weapon in Petitioner’s cell. Based upon this information, the
DHO suspended the hearing and forwarded the issue to the Captain for further investigation.
(Id.) Thereafter, both inmates identified by Petitioner were interviewed, and each denied any
involvement in placing the weapon in Petitioner’s cell. (Doc. No. 7-1 at 18.)
The DHO also attempted to obtain video footage requested by Petitioner. However, an
email message from Captain Brian Feltman dated April 23, 2012 advised the DHO that no such
video surveillance existed for the area in question due to the passage of time. The DHO noted

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that approximately 30 days had passed from Petitioner’s advisement of the charge and his
expressing his belief that video evidence may exist to vindicate him. (Doc. No. 7-1 at 11.) The
DHO hearing was reconvened on May 17, 2012, at the conclusion of the investigation.
Upon commencement of the hearing, the DHO advised Petitioner of the outcome of the
investigation into the information he provided during the initial DHO hearing. No procedural
issues were cited, no documentary evidence was provided by Petitioner for consideration, and no
witnesses were requested. In addition to the Incident Report and Investigation, the DHO
considered the following documents in making its final determination: a memorandum from T.
Ransdorf and L. Parker dated March 19, 2012; a memorandum from T. Matthews dated May 11,
2012; a handwritten drop note; an e-mail message from B. Feltman dated April 23, 2012; and the
photograph taken on March 19, 2012 of the weapon found under Petitioner’s mattress. After
consideration of this evidence, the DHO concluded that Petitioner committed the prohibited act
of Possession of a Weapon, a Code 104 violation. He was sanctioned to 30 days disciplinary
segregation, 40 days loss of good conduct time, and 6 months loss of commissary privileges.
Petitioner was provided with a copy of the DHO report on May 24, 2012. (Id. at 12.)
Several months after the incident, inmate Ulloa approached Lieutenant Sheets alleging
that his former cellmate possibly planted the weapon in Petitioner’s cell. (Doc. No. 7-1 at 24.)
Ulloa did not see the other inmate plant the weapon, and was unable to provide any additional
witnesses or corroborating evidence to support his statement. As such, Sheets did not pursue this
theory any further. (Id.)
Petitioner has filed the instant petition challenging the disciplinary proceedings. He
claims that he did not receive a “judicial hearing” as required by the Constitution and that no

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jury trial was conducted. He further challenges the sufficiency of the evidence and the failure of
the DHO to secure videotapes that may have shown someone planting the weapon under his
mattress. Finally, he argues that the information provided by inmate Ulloa several months after
the incident should have exonerated him and resulted in a reversal of the DHO’s finding of guilt.
II.

LEGAL STANDARD
The Federal Bureau of Prisons’ disciplinary process is fully set forth in the Code of

Federal Regulations, Title 28, Sections 541 through 541.8. These regulations dictate the manner
in which disciplinary action may be taken when a prisoner violates institutional rules. The first
step requires filing an incident report and conducting an investigation. Staff must conduct the
investigation promptly absent intervening circumstances beyond the control of the investigator.
See 28 C.F.R. § 541.5. Following the investigation, the matter is next referred to the UDC for a
hearing pursuant to 28 C.F.R. § 541.7. If the UDC finds that a prisoner has committed a
prohibited act, it may impose minor sanctions. If the alleged violation is serious and warrants
consideration for heightened sanctions, or involves a prohibited act listed in the greatest or high
category offenses, the UDC refers the matter to a DHO for a hearing. Id. Based upon the
seriousness of the charges against Petitioner and the potential sanctions greater than could be
afforded by the UDC, the instant matter was referred for a disciplinary hearing.
“Prison disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell,
418 U.S. 539, 556 (1974). Greatest category offenses carry a possible sanction of loss of good
conduct time credits. When a prison disciplinary hearing may result in the loss of good conduct
time credits, due process requires that the prisoner receive (1) written notice of the claimed

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violation at least twenty-four hours in advance of the hearing, (2) an opportunity to call
witnesses and present documentary evidence in his or her defense when doing so would not be
unduly hazardous to institutional safety or correctional goals, and (3) a written statement by the
factfinder as to evidence relied on and the reasons for the disciplinary action. See Wolff v.
McDonnell, 418 U.S. 539, 564-66 (1974). The DHO’s decision must be supported by some
evidence in the record. See Superintendent v. Hill, 472 U.S. 445, 454 (1985); see also Young v.
Kann, 926 F.2d 1396, 1402-03 (3d Cir. 1991) (applying Hill standard to federal prisoner due
process challenges to prison disciplinary proceedings). The determination of whether the
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.” Hill, 472 U.S. at 455-56. Under Hill, judicial review of a prison
disciplinary decision is limited to ensuring that the prisoner was afforded certain procedures, the
action against him was not arbitrary, and that the ultimate decision has some evidentiary support.
Id. at 457; see also 28 C.F.R. § 541.8(f) (requiring that the DHO’s decision be “based upon at
least some facts and, if there is conflicting evidence, on the greater weight of the evidence.”).
Moreover, “[t]he sufficiency standard is met where a DHO supports a finding of culpability
solely by reference to an incident report compiled by a corrections officer.” Moles v. Holt, 221
F. App’x 92, 94 (3d Cir. 2007)(citations omitted).
III.

DISCUSSION
The procedural requirements of Wolff and Hill have been met in the instant case.

Petitioner timely received copies of the Incident Report and notice of his hearing. (Doc. No. 7-1

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at 5-7, 21-23.) He was also informed of his rights prior to the hearing. (Id. at 10.) There are no
allegations that the disciplinary hearing officer was not neutral. Petitioner was provided with the
opportunity to make a statement and chose to do so, as documented in the DHO Report. (Id.)
He was also given the opportunity to present documentary evidence, as well as have a staff
representative, and chose not to do either. (Id.) Petitioner was additionally afforded the
opportunity to present witness testimony. (Id. at 11.)
In the report prepared by the DHO following the hearing, he fully documented the
evidence he considered in making his determination, and explained the reasons for the sanctions
imposed. (Id. at 11-12.) Petitioner was notified of his appeal right and provided with a copy of
the DHO’s report which contained a written statement of the evidence relied upon by the DHO
and the reasons for the sanctions imposed. (Id. at 12.) As such, Petitioner’s disciplinary hearing
complied with all the Wolff procedural due process requirements.
Further, the record demonstrates that the DHO met the evidentiary standard when he
determined that Petitioner committed the prohibited act. He considered the evidence outlined
above, including the Incident Report, the reporting officer’s eyewitness written account, staff
memoranda, the handwritten note advising staff of the location of the weapon, the photograph of
the weapon, and Petitioner’s own statement. (Id. at 11-12.) The weapon was found in
Petitioner’s cell under his mattress. Further, the DHO suspended the hearing in order to
investigate Petitioner’s allegations regarding inmates Limane and Blackmon, and both inmates
denied any involvement in the placing of the weapon in Petitioner’s cell. While Petitioner
complains about the DHO’s failure to obtain video footage which could have possibly
exonerated him, the DHO did attempt to secure the footage. However, due to the fact that

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Petitioner did not make the request for any video surveillance prior to the April 19, 2012 hearing,
owing to the lapse in time, the video was no longer available. Based upon the foregoing, the
DHO found that the greater weight of the evidence supported the finding that Petitioner
committed the prohibited act of Possession of a Weapon.
In light of the foregoing, the DHO’s decision meets or exceeds the “some evidence”
standard. Further, Petitioner’s argument that evidence provided by inmate Ulloa to Lieutenant
Sheets several months after the incident and DHO sanctions should have exonerated him is
unsupported by the record. Ulloa’s statements were found to be speculative and uncorroborated.
For these reasons, the instant petition for writ of habeas corpus lacks merit and will be denied.
An order consistent with this memorandum follows.