Rodriguez v. Spaulding
MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Hon. John E. Jones III
May 24, 2017
Presently before the court is a petition for writ of habeas corpus (Doc. 1)
pursuant to 28 U.S.C. § 2241, filed by Petitioner Orville Rodriguez (“Rodriguez”),
a federal inmate housed at the Federal Correctional Institution at Allenwood (“FCIAllenwood”), White Deer, Pennsylvania. He alleges that his Fifth and Eighth
Amendment rights were violated during two separate disciplinary proceedings
disposing of Incident Reports 2688840 and 2693026. He is seeking expungement
of the incident reports, removal of sanctions, and restoration of Good Conduct
Time. (Doc. 1, p. 8).
The petition is ripe for disposition and, for the reasons that follow, will be
The Federal Bureau of Prisons (“BOP”) disciplinary process is fully outlined
in Code of Federal Regulations, Title 28, Sections 541 through 541.8 (2011).
These regulations dictate the manner in which disciplinary action may be taken
should a prisoner violate, or attempt to violate, institutional rules. The first step
requires filing an incident report and conducting an investigation pursuant to 28
C.F.R. § 541.5. Staff is required to conduct the investigation promptly absent
intervening circumstances beyond the control of the investigator. 28 C.F.R. §
Following the investigation, the matter is then referred to the Unit
Disciplinary Committee (“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. Id. If the alleged violation is serious and warrants consideration for
more than minor sanctions, or involves a prohibited act listed in the greatest or
high category offenses, the UDC refers the matter to a Disciplinary Hearing
Officer (“DHO”) for a hearing. Id. Greatest Severity category offenses carry a
possible sanction of, inter alia, loss of good conduct time credits. 28 C.F.R. §
Incident Report 2688849
On March 3, 2015, while incarcerated at FCI-Allenwood, Rodriguez
received an incident report, 2688849, charging him with “Use of the telephone for
abuses other than criminal activity,” in violation of Prohibited Act Code 397.
(Doc. 8-1, p. 12). The incident is described as follows: “Inmate Rodriguez,
Orville register number 17394-055 made a telephone call to phone number 716768-1232 from phone station 5803 at 2:58 PM in unit 1B/AB. Inmate Rodriguez
had this individual use their cell phone and conduct a three way phone call to
several people, when the other parties answered the cell phone inmate Rodriguez
was put on speaker phone and he had conversations with the individuals on the cell
phone. This telephone called [sic] was monitored at 4:50 PM 3/2/15.” (Id.)
Shortly thereafter, the incident was reinvestigated because it was incorrectly
processed as a Code 397. (Id. at 13). On March 6, 2015, Rodriguez received a
second copy of the incident report with the proper code violation, Code 297, “Use
of telephone for abuses other than criminal activity.” (Id.)
During the March 9, 2015, UDC review, Rodriguez commented, “I did not
know I couldn’t do this. It was out of the urgency to find out about my brother. I
did not speak directly with the third person, my brother.” (Id.) The UDC referred
the matter for further hearing and recommended loss of good conduct time, loss of
phone privileges and imposition of a monetary fine. (Id. at 12). Rodriguez
acknowledged being advised of his rights and declined the offer of staff
representation and the option to call witnesses at the DHO hearing. (Id. at 15-16).
The disciplinary hearing commenced on March 12, 2015. (Id. at 17). The
DHO advised Rodriguez of his rights; Rodriquez declined staff representation,
chose not to call witnesses, presented no documentary evidence, and denied the
charges against him. (Id.) The DHO noted no procedural irregularities, except the
delay caused by the improper code violation being listed in the initial incident
report. (Id.) Rodriquez stated, “I have a brother who had a seizure and is in a
medically induced coma.” “The report is true.” (Id.) Upon further questioning,
“Inmate Rodriguez . . . admitted the charge. He elaborated upon his plea by
stating, the report is true.” (Id. at 18).
The DHO “believed the information provided by the staff member involved
in this case, as they derived no known benefit by providing false information.”
(Id.) He concluded, based upon the evidence cited in the incident report and
Rodriguez’s admission, that Rodriguez committed the prohibited act of Use of the
telephone for abuses other than criminal. In imposing sanctions including, inter
alia, disallowance of twenty-seven days of good conduct time, the DHO stated:
Rodriguez’s use of his telephone privileges detracted from the intent
of the Federal Bureau of Prison’s telephone policy. His making of a
three-way phone call threatened the security of the institution by
bypassing the inmate telephone procedures established at FCIAllenwood. Accordingly, the Disallowance of Good Conduct Time is
sanctioned to punish Rodriguez for his behavior while the Loss of
Privileges, (Phone and Visit) 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 297 to
warrant the Disallowance of Good Conduct Time based on the offense
being a highly aggravated offense which greatly jeopardized the
safety of the staff and inmates.
(Id. at 19).
Incident Report 2693026
The following day, March 13, 2015, Rodriguez received a second incident
report, 2693026, charging him with violations of Prohibited Act Codes 397 and
306, Use of telephone for abuses other than criminal activity which do not
circumvent telephone monitoring or use of the telephone, and Refusing
programming. (Doc. 8-1, p. 30). The staff member described the following
This staff member was monitoring phone calls on this date in the
phone monitoring room when a phone call made by Inmate Rodriguez
on 03/13/2015 at 7:05 AM to his spouse was heard. Inmate
Rodriguez had been sanctioned by DHO on 03/12/2015 and had
received the sanction of loss of phone and visits for 6 months. The
phone call made was not abiding by the sanctions provided him the
day prior. He was also asking his spouse to come visit him this
weekend during the phone call and said he would call her as often as
he could until his phone was shut off.
(Id.) The investigating officer advised him of his rights and Rodriguez stated “I
didn’t know the sanction started right away. I though[t] I had 24 hours.” (Id. at
31). The matter was referred to the UDC. (Id.)
During his March 16, 2015, UDC review, Rodriguez stated, “My sanction
didn’t go into effect until the afternoon when they gave me the disposition. I was
not informed I could not use the phone.” (Id.) The UDC referred the matter to the
DHO. (Id.) On the discipline hearing notice, Rodriguez requested that “Mrs.
Dewald” represent him; he declined the offer to call witnesses. (Id. at 33).
At the March 25, 2015 hearing, the DHO informed Rodriguez that Mrs.
Dewald either declined or was unavailable and gave him the option to continue the
hearing to obtain another staff representative. (Id. at 34). Rodriquez apparently
chose to proceed without a staff representative but, at the conclusion of the
hearing, requested “Mr. Fogelman” as a staff representative. (Id.) The DHO
informed him that the hearing concluded and that any request for staff
representation should have been made at the beginning of the hearing. (Id.)
In arriving at a finding of guilt, the DHO considered the following
statements made by Rodriguez: “I was informed that if my phone wasn’t turned
off that I could use it.” “The DHO did tell me I was on phone restriction at my
DHO hearing.” (Id.) The DHO also considered the incident report, two
Monitored/Recorded telephone calls placed on 3/13/15 at 7:05 a.m. and 11:14 a.m.,
and statements made by Rodriguez during the phone calls that allude to his being
on phone restriction. (Id. at 35). In contravention of the sanctions imposed the
prior day, Rodriguez was asking his spouse to come visit him and indicated that he
would call her as often as he could until his phone was turned off. (Id.) Also, the
DHO believed the information provided in the incident report by the staff member
as he derived no known benefit by providing false information. He also found “the
charge for code 397 to be supported in this case based upon the greater weight of
evidence cited in this report as well as the actions demonstrated by the inmate in
placing a phone call after being instructed by the DHO at the conclusion of his
DHO hearing on 3/12/15 not to do so and his sanctions were effective immediately
following the conclusion of his DHO hearing.” (Id.) With regard to code 306, he
considered the charge redundant and expunged it from the report. (Id.)
He stated the following with regard to the imposition of sanctions for the
code 397 violation:
Rodriguez’ [sic] use of his telephone privileges detracted from the
intent of the Federal Bureau of Prison’s [sic] telephone policy. His
utilizing the inmate telephone system while on phone restrictions
bypassed the inmate telephone monitoring procedures established at
Accordingly, Disciplinary Segregation, the
Disallowance of Good Conduct Time and the Forfeiture of Non
Vested Good Conduct Time is [sic] sanctioned to punish Rodriguez
for his behavior while the loss of privileges (Phone and Visit) is
sanctioned in an effort to deter him from it in the future. The DHO
finds the charge for code 397 to warrant the Forfeiture of Non Vested
Good Conduct Time in addition to the Disallowance of Good Conduct
Time based on the offense being of a highly aggravated offense which
greatly jeopardized the safety of staff and inmates.
The DHO is imposing an additional Disciplinary Segregation which
was previously suspended pending clear conduct. His failure to
maintain clear conduct is the reason for this imposition.
(Id. at 36).
Rodriguez’s claim, that his due process rights were violated in the context of
the disciplinary hearing process, and that these violations resulted in a loss of good
conduct time, is properly the subject of this habeas petition because it directly
impacts the duration of his confinement. The Due Process Clause of the Fifth
Amendment of the Constitution of the United States provides: “No person shall . . .
be deprived of life, liberty, or property, without due process of law.” U.S. CONST.
amend. V. Federal inmates possess a liberty interest in good conduct time. See
Wolff v. McDonnell, 418 U.S. 539, 555-57 (1974); Young v. Kann, 926 F.2d 1396,
1399 (3d Cir. 1991).
When a prison disciplinary hearing may result in the loss of good conduct
time credits, due process requires that the prisoner receive due process protections:
1) written notice of the claimed violation at least twenty-four (24) 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; 3) aid in presenting a defense if the
inmate is illiterate, 4) an impartial tribunal; and 5) a written statement by the
factfinder as to evidence relied on and reasons for the disciplinary action. See
Wolff, 418 U.S. at 564.
Incident Report 2688849
Rodriguez contends that he did not receive adequate notice of the charges
contained in Incident Report 2688849, He argues that “[o]n 3-2-2015 Petitioner
was cited with Incident Report No. 2688849 in violation of Code 397, which was
“Amended” to Code 297, without ‘notice’ or ‘signature’ of the person who
amended the report.” (Doc. 1, p. 7). This argument lacks merit. First, the record
indicates that he received a copy of the incident report with the proper code on the
evening of March 6, 2015. (Doc. 8-1, p. 13). Regardless, as long as an inmate has
notice of the facts underlying the charge of which he is found guilty, as is the case
here, it is does not matter that he is found guilty of a greater charge. See Luna v.
Zickefoose, No. 1:14-CV-1060, 2015 WL 463270 *5 (M.D. Pa. Feb. 4, 2015),
citing Northern v. Hanks, 326 F.3d 909, 910 (7th Cir.2003); Borker v. Baltazar,
Civil No. 14–0197, 2014 WL 5020602, *3 (M.D. Pa. Oct. 8, 2014).
Incident Report 2693026
Rodriguez alleges that the DHO violated the Eighth Amendment in finding
him guilty of the Code 397 charge in Incident Report 2693026, and sanctioning
him without “fair notice” for an “unlisted violation of policies that were not
covered or posted.” (Doc. 1, p. 7). “On 3-15-2015 [he] was cited with Incident
Report 2693026 for violation of Code 397. [He] avers that there was no posted
policies or effective date of when [his] sanctions for the prohibited act [he] was to
serve begin. Only after [he] was served a copy of the DHO Report was he put on
‘notice’ of the effective date the sanction was to begin.” (Id.)
This is essentially a challenge to the sufficiency of the evidence relied on by
the DHO. The decision of the DHO will be upheld if there is “some evidence” to
support the decision. Superintendent v. Hill, 472 U.S. 445, 455 (1985); see also
Young, 926 at 1402-03 (applying Hill standard to federal prisoner due process
challenge 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.” Id. at
455. 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, to be based on the
greater weight of the evidence).
In arriving at a finding of guilt, the DHO considered the information
provided by the staff member in the incident report. He also considered
Rodriguez’s admission that “The DHO did tell me I was on phone restriction at my
DHO hearing” that was held the prior day. (Doc. 8-1, p. 34). Additionally, the
DHO took into account two monitored/recorded telephone calls during which
Rodriguez discussed with his spouse the fact that he was sanctioned the day before
with loss of phone privileges for six months. (Id. at 35). Despite Rodriguez’s
argument to the contrary, the record indicates that the DHO’s conclusion that
Rodriguez committed Prohibited Act Code 397 of use of the telephone for abuses
other than criminal activity has some evidentiary support.
As concerns the severity of sanctions argument, the sanctions permitted
upon a finding of guilt of a “High Severity Level Prohibited Acts” offense include,
inter alia, forfeit and/or withhold earned statutory good conduct time or up to 50%
or up to 60 days, whichever is less, disallowance of between 25% and 50% of good
conduct time credit available for a year, up to six months of disciplinary
segregation, and loss of privileges. 28 C.F.R. § 541.3. The sanctions imposed on
Rodriguez were within the limits prescribed in this regulation.
Further, “[t]he Eighth Amendment is violated only when a punishment is
grossly disproportionate to the severity of the offense. See Rummel v. Estelle, 445
U.S. 263, 271–74 (1980).” Levi v. Holt, 192 F. App’x 158, 162 (3d Cir. 2006).
Therefore, only sanctions that “impose [ ] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life,” may be deemed
excessive. Moles v. Holt, 221 F. App’x 92, 95 (3d Cir. 2007) (citing Sandin v.
Conner, 515 U.S. 472, 484 (1995). The penalties imposed, loss of good conduct
time, loss of privileges, and disciplinary segregation, do not work an “atypical and
significant hardship” on Rodriguez and do not serve to extend his confinement
beyond the expected parameters of the his sentence. Sandin, 515 U.S. at 484-85.
Consequently, he is not entitled to relief.
Based on the foregoing, the petition for writ of habeas corpus will be denied.
A separate Order will enter.
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