Bergin v. Spaulding

Filing 11

MEMORANDUM re Petition for Writ of Habeas Corpus 1 filed by Jason D. Bergin (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 8/26/15. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JASON D. BERGIN,
Petitioner
vs.
WARDEN S. SPAULDING,
Respondent

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CIVIL NO. 1:14-CV-01371

(Judge Rambo)

MEMORANDUM
Background
Jason D. Bergin, while an inmate at the Federal
Correctional Institution-Allenwood (“FCI-Allenwood”),
White Deer, Pennsylvania, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. §2241, in which he
named S. Spaulding, Warden of FCI-Allenwood, as the
Respondent.1 Doc. 1, Bergin’s Petition. Bergin who is
serving a federal sentence of 180 months imprisonment
for drug offenses with a projected statutory release
date of December 20, 2022,2 claims that his due process
rights were violated during the course of a prison
Bergin is presently an inmate at the Federal
Correctional Complex, Oakdale, Louisiana.

1.

Doc. 7-2, Exhibit 1 (Attachment A) to Spaulding’s
Response to Petition.

2.

disciplinary hearing held on November 14, 2013, at FCIAllenwood. Id.

Bergin was found guilty by a Discipline

Hearing Officer (DHO) under prison regulations, of
“Possession of anything not authorized for retention or
receipt by the inmate, and not issued to him through
regular channels,” Code 305 (a moderate severity level
prohibited act),

28 C.F.R. § 541.3 (Table 1 -

Prohibited Acts and Available Sanctions) and received
sanctions of 15 days disciplinary segregation,3 loss of
13 days of Good Conduct Time and loss of commissary
privileges for 4 months. Id.

Bergin has exhausted

available administrative remedies. Id. Bergin requests,
inter alia, that the court direct that the Bureau of
Prisons restore the 13 days of Good Conduct Time. Id.
The petition is ripe for disposition and, for the
reasons set forth below, the petition will be granted in
part and denied in part.

At the time of the disciplinary hearing Bergin had
already served 10 days in segregation.

3.

2

On November 4, 2013, Bergin was served with
Incident Report No. 2512363 charging him as stated above
with possessing unauthorized items.

The items in

question were two court opinions which were obtained via
the LexisNexis legal research service provided at the
FCI-Allenwood law library.4
The incident report was prepared by Correctional
Officer C. Stahl on November 4, 2013, and states in toto
as follows:
At approximately 7:00pm on November 4, 2013,
while inventorying inmate Bergin’s 34765-018
property, I found legal paperwork belonging to
Inmate Cruz 70426-056, and inmate Pina-Urena
The opinions in question (consisting of a total of 9
pages) which are attached to Bergin’s petition (Doc. 1,
at 14-23) were Pina-Urena v. United States, 2008
U.S.Dist. LEXIS 15422 Feb. 29, 2008) and United States
v. Jaimes-Cruz, 2009 U.S.Dist. LEXIS 64900 (July 24,
2009). The opinions are also available on the Westlaw
database: Pina-Urena v. U.S., 2008 WL 542597
(S.D.N.Y.Feb. 29, 2008) and United States v. JaimesCruz, 2009 WL 2225065 (E.D.N.C. July 24, 2009). The
government does not dispute that these 9 pages were the
alleged unauthorized items which Bergin possessed. The
opinion in the Cruz case relates to a motion to sever
certain counts of a superseding indictment in a
criminal case filed in the Eastern District of North
Carolina in which Cruz was one of five defendants. The
opinion in the Pina-Urena case relates to a petition
filed by Pina-Urena under 28 U.S.C. § 2255 in the
Southern District of New York.
4.

3

17979-069. Inmate Bergin is not authorized to
have other inmate’s property in his possession.
The paperwork was confiscated and sent to the
Lieutenant.
Id., at 11 (Attachment).

The incident report was

delivered to Bergin at 12:30 p.m., on November 5, 2013,
by Lieutenant J. Brown. Id.
On November 7, 2013, Bergin appeared before the
Unit Discipline Committee (“UDC”) at which time Bergin
stated that “[the other inmate’s] paperwork was in [his]
possession because [the other inmate] wanted [him] to
look at something.”

Doc. 7-2, Exhibit 1 (Attachment B)

to Spaulding’s Response to Petition. Bergin further
stated that he “worked in the law library [and the other
inmate] left his paperwork there so [he] took it to give
it back to him.” Id.

The UDC based on Bergin’s

admission found that Bergin committed the prohibited act
charged and referred the charge to the DHO with the
recommendation that Bergin receive a monetary fine and
loss of privileges. Id.

The UDC further gave Bergin

notice of that decision and advised Bergin of his rights
at the DHO hearing, including his rights to be
represented by a staff member and present witnesses at
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the hearing. Id., Attachment C.

Bergin indicated that

he wanted a staff member, J. Yearick, to represent him
but that he did not wish to present any witnesses. Id.
On November 14, 2013, Bergin appeared for a
hearing before the DHO. Id., Attachment D.

At the

hearing, it was noted that Bergin initially requested a
staff representative but prior to commencement of the
hearing Bergin withdrew that request. Id., Attachment C,
at 12 & Attachment D, at 14. At the beginning of the
hearing Bergin was again advised of his rights, and he
indicated he understood them and chose to provide the
following statement: “I had another inmate’s legal
paperwork because he asked me to look at something.”
Id., Attachment D, at 14.

Bergin presented no witnesses

or other documentary evidence. Id. The DHO found that
Bergin received at least 24-hour advanced written notice
of the charges, had been advised of his rights, and that
he had waived his right to a staff representative. Id.
In a decision issued on November 19, 2013, the
DHO summarized the evidence he relied on as follows:
BERGIN’s involvement in the incident, as noted
in Section 11 of Incident Report 2512363, as
provided by C. Stahl, Correctional Officer, was
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reviewed. Paraphrased, C. Stahl writes: On
11/4/13, at or about 7:00 pm, while inventorying
inmate Bergin’s # 34765-018 property, I found
Legal paperwork belonging to inmate [Cruz 70426056], and inmate [Pina-Urena 17979-069].5 Inmate
Bergin is [not]6 authorized to have other
inmate’s property in his possession. The
paperwork was confiscated and sent to the Lt.
The DHO believed the information provided by the
staff member involved in this case, as they
derived no known benefit by providing false
information. The DHO finds the charge to be
supported in this case based upon the greater
weight of evidence cited in this report as well
as the inmate’s admission.
Upon questioning by the DHO, Inmate BERGIN,
Jason, Registration # 34765-018, admitted the
charge. He elaborated upon his plea by stating,
he had another inmate’s legal material. After
the consideration of evidence documented above,
the DHO has drawn the conclusion the greater
weight of the evidence/some facts, listed in the
paragraphs above, support(s) the finding, inmate
BERGIN . . . committed the prohibited act(s) of
Possession of anything not authorized, Code 305,
on 11/4/13, at or about 7:00 pm, in Unite 1 A,
at FCI Allenwood, PA.

The names of the inmates and their numbers are found
on Bergin’s copy of the incident report attached to his
petition. The names, however, are blacked-out on the
copy of the DHO Report attached to the response to
Bergin’s petition filed by the government.

5.

The DHO erroneously omitted the “not” in his DHO
Report.

6.

6

Id., at 15.

The DHO in finding that Bergin violated

Code 305 and imposing the sanctions, including the loss
of 13 days Good Conduct Time, further stated as follows;
Bergin’s possession of unauthorized items
threatened the orderly running of FCI Allenwood.
For inmates to retain items not provided them
through institutional channels indicates
defiance and refusal to follow established and
known policy. Limits are placed on inmate
property to persuade them not to possess
unnecessary or potentially dangerous items.
Accordingly, the Disallowance of Good Conduct
Time is sanctioned to punish Bergin for his
behavior, while the Loss of Privileges
(Commissary) and Disciplinary Segregation
(Suspend 180 Days pending clear conduct) is
sanctioned in an effort to deter him from it
in the future. The DHO finds the charge for code
307 (sic)7 to warrant the Disallowance of Good
Conduct Time based on the offense being of a
highly aggravated offense which greatly
jeopardizes the safety of staff and inmates.
Id.

The DHO informed Bergin that he had the right to

appeal the decision within twenty (20) days. Id.

Bergin

received a copy of the decision on November 19, 2013.
Code 307 is “Refusing to obey and order of any staff
member (may be categorized and charged in terms of
greater severity, according to the nature of the order
being disobeyed, e.g., failure to obey an order which
furthers a riot would be charged as 105, Rioting;
refusing to obey and order which furthers a fight would
be charged as 201, Fighting; refusing to provide a
urine sample when ordered as part of a drug-abuse test
would be charged as 110).” 28 C.F.R. § 541.3,
Prohibited acts and available sanctions (Table 1).

7.

7

Id.

After exhausting his administrative remedies Bergin

filed the instant petition.8
Discussion
Liberty interests protected by the Fifth
Amendment may arise either from the Due Process Clause
itself or from statutory law.
F.3d 141 (3d Cir.2002).

Torres v. Fauver, 292

It is well-settled that “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.”
McDonnell,418 U.S. 539, 556 (1974).

Wolff v.

Nevertheless, the

Supreme Court found that there can be a liberty interest
at stake in disciplinary proceedings in which an inmate
loses good conduct time.

Id.

Since Bergin’s sanctions

did include the loss of good conduct time, Bergin has
identified a liberty interest in this matter.
In Wolff, the Supreme Court set forth the
following minimum procedural due process rights to be
afforded to a prisoner accused of misconduct in prison
which may result in the loss of good time credit: (1)
The government concedes that the exhaustion
requirement is satisfied.

8.

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the right to appear before an impartial decision-making
body; (2) twenty-four hour advance written notice of the
disciplinary charges; (3) an opportunity to call
witnesses and present documentary evidence in his
defense when it is consistent with institutional safety
and 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 of the evidence relied upon and the
rationale behind the disciplinary action.
U.S. at 563-67.

Wolff, 418

The Supreme Court has held that the

standard of review with regard to the sufficiency of the
evidence is whether there is “any evidence in the record
that could support the conclusion reached by the
disciplinary board.”

Superintendent v. Hill, 472 U.S.

445-46 (1985); see also Griffin v. Spratt, 969 F.2d 16,
19 (3d Cir.1992).

If there is “some evidence” to

support the decision of the hearing examiner, the court
must reject any evidentiary challenges by the plaintiff.
Hill, 472 U.S. at 457.
The Bureau of Prisons’ inmate disciplinary
procedures are codified at 28 C.F.R. § 541, et seq., and
9

entitled, Inmate Discipline and Special Housing Units.
These procedures are intended to meet or exceed the due
process requirements prescribed by the Supreme Court.
See Von Kahl v. Brennan, 855 F.Supp. 1413, 1418
(M.D.Pa.1994).

Pursuant to these regulations, staff

shall prepare an Incident Report when there is
reasonable belief that a violation of BOP regulations
has been committed by an inmate and the staff considers
informal resolution of the incident inappropriate or
unsuccessful.

28 C.F.R. § 541.5.

The incident is then

referred to the UDC for an initial review pursuant to §
541.7.
The UDC review/hearing is “ordinarily [held]
within five work days after [the incident report] is
issued” and does not include the initial day staff
learns of the incident, weekends or holidays.

Id.

If

the UDC finds that a prisoner has committed a prohibited
act, it may impose any of the available sanctions set
forth in 28 C.F.R. § 541.3 (Tables 1 and 2) except loss
of good conduct time, disciplinary segregation, or
monetary fine. Id.

If the alleged violation is serious

and warrants consideration for more than minor
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sanctions, or involves a prohibited act listed in the
greatest severity category, the UDC must refer the
matter to a DHO for a hearing. Id.
A DHO “will only conduct a hearing on the
incident report if referred by the UDC.” 28 C.F.R. §
541.8. An inmate will receive written notice of the
charges 24 hours before the DHO hearing unless the
inmate waives the notice requirement in which case the
DHO can conduct the hearing sooner. Id.

The inmate is

permitted to have a staff representative at the hearing
and entitled to make a statement and present documentary
evidence. Id.

After the hearing the DHO will either (1)

find the inmate committed the prohibited act or similar
one described in the incident report; (2)find the inmate
did not commit the prohibited act charged; or (3) refer
the incident report back for further investigation,
review and disposition. Id.

If an inmate is found to

have committed a prohibited act, the DHO can impose any

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of the available sanctions listed in Table 1 and 29 of §
Finally, the written report or decision of

541.3. Id.

the DHO will contain the following:(1) whether the
inmate was advised of his or her rights during the
proceedings; (2) the evidence relied on by the DHO; (3)
the DHO’s finding of guilt or innocence; (4) the
sanctions imposed; and (5) the reasons for the sanctions
imposed. Id.
In the instant case it is clear that Bergin was
afforded all of the required procedural rights set forth
in Wolff.
report.

He received timely notice of the incident
He was properly informed of his rights before

the hearing, as well as given the opportunity to make
his own statement, present documentary evidence, have a
staff representative, and present witnesses on his
behalf.

Bergin chose only to make a statement, which

was documented in the DHO’s report.

Bergin also

Table 2 set forth sanctions for repeated prohibited
acts within the same severity level. The government
has not claimed that Bergin committed prior prohibited
acts.

9.

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received a written decision setting forth the evidence
relied upon by the DHO and the rationale behind the
decision.

Bergin was then notified of his right to

appeal.
Since Bergin was afforded all of his procedural
rights, the only remaining issue is whether there was
sufficient evidence to support the decision by the DHO,
both with respect to the finding that Bergin committed
the prohibited act and the sanctions imposed.

Before we

address this issue we will review the regulations of the
Bureau of Prisons relating to the prohibited act and the
legal material which an inmate may possess.
Prohibited acts under the regulations of the
Bureau of Prisons are divided into four severity
categories: Greatest (100 level), High (200 level),
Moderate (300 level) and Low (400 level).
541.3.

28 C.F.R. §

The prohibited act alleged to have been

committed by Bergin was Code 305, a moderate severity
prohibited act. The available punishments for such an
act include the following: (1) disallowance of up to 25%
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(1-14 days) of good conduct time credit; (2) up to 3
months disciplinary segregation; (3) monetary
restitution; (4) monetary fine; (5) loss of privileges,
e.g., visiting, telephone or commissary; (6) change of
housing; and (7) loss of job. 28 C.F.R. § 541.3 (Table
1).
The Bureau of Prisons has adopted regulations
regarding what legal material an inmate can possess and
under what circumstances. 28 C.F.R. § 543.11.
Under the regulation the warden of an
institution is required to “make materials in the inmate
law library available whenever practical, including
evening and weekend hours.” 28 C.F.R. § 543.11(a).

A

warden is to “allow an inmate a reasonable amount of
time, ordinarily during the inmate’s leisure time . . .
to do legal research and to prepare legal documents.”
Id.

Also, “[w]here practical, the Warden shall allow

preparation of documents in living quarters during an
inmate’s leisure time.” Id.

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The regulation

provides that “[u]nauthorized

possession of library materials by an inmate constitutes
a prohibited act, generally, warranting disciplinary
action[.]” 28 C.F.R. § 543.11(c).

An inmate’s personal

legal material are delineated as, but not limited to,
the inmate’s pleadings and documents which have been
filed in court or with an administrative agency, drafts
of pleadings submitted by an inmate in a legal
proceedings, and photocopies of legal reference
materials. 28 C.F.R. § 543.11(d).
Correctional “[s]taff may allow an inmate to
possess those legal materials which are necessary for
the inmate’s own legal actions” and “the legal materials
of another inmate . . . while in the institution’s main
law library and in another location if the Warden so
designates.”10 28 C.F.R. § 543.11(d)(2) and (f)(2).
However, the regulations specifically indicate that
“[t]he assisting inmate may not remove another inmate’s
There is no indication that the Warden designated
any other location and Bergin has not made such a
claim.

10.

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legal materials, including copies of the legal
materials, from the law library or other designated
locations” and “[a]lthough the inmate being assisted
need not remain present in the law library or other
designated location while the assistance is being
rendered, that inmate is responsible for providing and
retrieving his or her legal materials from the library
or other designated locations.” 28 C.F.R. §
543.11(f)(2)(I) and (ii).
The record clearly reveals the existence of
evidence submitted at the hearing to allow the DHO to
conclude that the greater weight of the evidence
supported a finding that Bergin violated Code 305,
albeit a minor, technical violation. In addition to the
statement provided by Bergin, the DHO also considered
the incident report prepared by the correctional
officer. Based on the foregoing, the Court concludes
that the evidence before the DHO was sufficient to
support a finding of guilt and meets the requirements
imposed by the Due Process Clause.
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However, although

all of the sanctions imposed by the DHO were within the
limits of 28 C.F.R. § 541.3 (Table 1), there is no
evidence supporting the reasons given by the DHO for
imposing the sanction on Bergin of loss of 13 days of
Good Conduct Time. The rationale given for sanctioning
Bergin 13 days loss of Good Conduct Time was that the
prohibited act was of “a highly aggravated offense which
greatly jeopardizes the safety of staff and inmates.”
This rationale is totally unsupported by the evidence.
In fact as noted above, a Code 305 prohibited act is
considered of moderate severity.

Accordingly, Bergin’s

petition will be granted in part.
An appropriate order will be entered.
s/Sylvia H. Rambo
United States District Judge
Dated:

August 26, 2015.

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