Nobrega v. Ebbert et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry) (PLEASE SEE MEMORANDUM FOR COMPLETE DETAILS)Signed by Honorable William J. Nealon on 1/30/17. (lh)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DOMINGOS NOBREGA,
Petitioner
v.
DAVID J. EBBERT, et al.,
Respondents

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CIVIL ACTION NO. 3:CV-14-2027
(Judge Nealon)

MEMORANDUM
Domingos Nobrega, an inmate currently confined in the United States
Penitentiary, Yazoo City, Mississippi, filed this pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Petitioner claims that his due process rights
were violated during the course of a prison disciplinary hearing held on April 10,
2014, at Canaan United States Penitentiary (“USP-Canaan”), Waymart,
Pennsylvania, when he was found guilty of the prohibited act of Possession of any
Narcotic, Marijuana, Drugs, Alcohol, Intoxicants or Related Paraphernalia not
Prescribed for the Individual by Medical Staff, a violation of Disciplinary Code
Section 113. Specifically, he claims “that the purple liquid recovered had not ever
been tested by a Toxicologist.” (Doc. 1, petition). For relief, Petitioner seeks the
expungement of the incident report and sanction, and restoration of his forfeited
good conduct time. Id. The petition is ripe for disposition and, for the reasons that

follow, will be denied.
Background
On March 19, 2014, Petitioner was served with Incident Report No.
2561034 charging him with “Introduction or Making of any Narcotic, Marijuana,
Drugs, Alcohol, Intoxicants or Related Paraphernalia not Prescribed for the
Individual by Medical Staff”, a Code 111 violation. (Doc. 5-1, Ex. C, Incident
Report). The incident report, which was written by M. McColligan, reads as follows:
On March 19, 2014, at 12:50 p.m., I was conducting a routine
random cell search of cell 221 in unit F-1 which is occupied by
Inmate Nobrega (06915-036) and another inmate. While searching
the upper locker, belonging to inmate Nobrega 06915-036, I found a
soda bottle containing a dark purple liquid in it. When tested by the
unit flashlight (passive alcohol screening serial number 0215
102295), it registered as containing alcohol. Inmate Nobrega
admitted that it belonged to him and claimed that it was for a
religious service. I confiscated the bottle and notified compound
officers. Compound Officer Everitt took the substance to the
lieutenant’s office and tested it with Alcosensor 3 serial number
1222816. It had a positive reading of .105.
Id. On March 20, 2014, Petitioner appeared before the Unit Discipline Committee
(“UDC”). (See Id., Committee Action). The UDC referred the charge to the
Discipline Hearing Officer (“DHO”). Id. During the UDC hearing, staff member, D.
Palmer, informed Nobrega of his rights at the DHO hearing and provided him with a

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copy of the “Inmate Rights at Discipline Hearing” form. (Id. at 56, Inmate Rights at
Discipline Hearing).
Also on March 20, 2014, Nobrega was provided with a “Notice of Discipline
Hearing before the (DHO)” form. (Id. at 59). Nobrega requested
staff representatives, Senior Officer Specialists Everitt and Alogna. Id. He also
requested three inmate witnesses, Lawrence Johnson, Shawn Peterkin, and Jamalda
Redish. Id.
On April 10, 2014, Petitioner appeared for a hearing before DHO, Marc A.
Renda. (Doc. 5-1, Ex. D, DHO Report). During the DHO hearing, Petitioner was
again read his rights, and he indicated that he understood them. Id. The DHO
confirmed that Nobrega received a copy of the incident report. Id. The DHO denied
Nobrega’s request for Senior Officer Specialists Alogna and Everitt to be his staff
representative because they were significantly involved in the March 19, 2014
incident. Id. Nobrega elected to proceed with his disciplinary hearing with
Lieutenant Rosler as a staff representative. Id. Staff representative, W. Rosler, Lt.,
noted no discrepancies in the discipline process and was disclosed all documentation
in reference to Petitioner’s case. Id. Further, he met with Nobrega in advance of the
hearing to discuss the case. Id. He stated for the record “Whether or not intent was
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there, he possessed a substance which tested positive for intoxicants.” Id.
Additionally, DHO Renda permitted Nobrega a continuation to present three
character witnesses. Id. Inmates Johnson and Peterkin both asserted that Nobrega
was Jewish and had the bottle containing the intoxicants in his possession. Id. They
each asserted he initially obtained this bottle through his religious practices. Id.
While both inmates believed Nobrega would not get involved with intoxicants, each
independently acknowledged Nobrega’s possession of the bottle containing the
contents that tested positive for alcohol on March 19, 2014. Id.
Nobrega’s final character witness was not housed at USP-Canaan on the date
of his disciplinary hearing and, as such, he was not called as a witness. Id.
Moreover, as DHO Renda noted, inmate Redish was only being called as character
witness, and therefore, his testimony wasn’t necessary. Id.
Petitioner offered the following statement on his behalf:
“We’re here because of procuring actual illegal contraband. There
was no intent to make it illegal. The defendant was practicing his
religion. He got the juice in that bottle on that Saturday after
religious practices. After Saturday, the bottle was left in the cell
until the next Saturday, the 19th. The defendant harbored grape juice
because they are not giving religious services to the Jewish nation
on Saturday which is our Shabbat. They’re not letting us eat our
meals in front of candles. We have to have grape juice.”

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When further interrogatories were posed by the DHO the manner in
which religious services purportedly provided him grape juice, he
replied: “There was a grape juice box Lt. Rosler was given to him
by Officer Everitt. I don’t remember the date on the box.” When
questioned regarding the liquid substance in the soda bottle as
depicted in photographic evidence, NOBREGA responded “I had a
bottle and had an empty box of grape juice. Yes, that was my bottle.
It was less than an ounce”, and stated “I asked them to do a proper
toxicology test.” NOBREGA also testified “If you stick anything in
a bottle it can accidently turn bad,” acknowledged being provided
grape juice in a box not a soda bottle, and sated “We’re supposed to
consume it [grape juice] Friday, Saturday and Sunday. No, they
don’t give it to us to hold.”
Lastly, NOBREGA admitted stating to the investigator “Exempt
from levee except as value, returned as a contract for settlement.
Contract due upon signature of agent, value $1000.00". When
questioned about the significance of said statement he stated “They
were short-handing me” and when questioned about the reference to
“Contract due upon signature of agent value $1000.00", he replied
“It had to do with a contract when you got a name, you have to use
capital letters.”
No procedural issues were cited. Documentary evidence was
provided for consideration to the DHO. Specifically, NOBREGA
adduced from “The Aleph Institute”, “Institution Handbook of
Jewish Practice and Procedure”, pages 4-1, 4-2, 4-3 and 4-5; and a
hand written statement. In part he requested “Charictor Witness”,
cited “Tools of Truth Finding”, and “Evidence Needed”. He
requested 20cc of “Sodiumpenthenol”, “Polygraph Tester”, and the
“grape juice box that was given to Lt. W. Rosler on 3-19-2014, that
showed the juice was given to the defendant bad or out of date (i.e.
left in the defendant’s possession after a shakedown as a bad
product in February). This will show that this is a miscarriage of
justice and plain error also a hayness charge.”
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Id.
In addition to the Incident Report and Investigation, the DHO considered the
following documentary evidence in making his determination: (1) a photograph
depicting plastic soda bottle; (2) liquid substance and Alco-Sensor III reading of
.105; and (3) Memorandum dated March 19, 2014 from A. Everitt, Senior Officer
Specialist. Id. The specific evidence taken from the relied upon documentary
evidence was as follows:
The DHO finds based on the greater weight of the evidence that on
March 19, 2014, at approximately 12:50 PM, while the reporting
staff member was conducting a search of cell 221 assigned to
NOBREGA in the F1 housing unit, he discovered a soda bottle in
the top locker containing a dark liquid substance, which
subsequently yielded a positive reading of “.105" with the AlcoSensor III.
Specific evidence relief on to support this finding is the account of
the reporting staff member, as reflected in the incident report. He
indicates “At the above date and time (3-19-2014 at 12:50 PM), I
was conducting a routine random cell search of cell 221 in unit F-1
which is occupied by Inmate Nobrega [NOBREGA] (06915-036)
and another inmate. While searching the upper locker, belonging to
inmate Nobrega [NOBREGA] 06915-036, I found a soda bottle
containing a dark purple liquid in it. When tested by the unit
flashlight (passive alcohol screening serial number 0215 102295), it
registered as containing alcohol. Inmate Nobrega [NOBREGA]
admitted that it belonged to him and claimed that it was for a
religious service. I confiscated the bottle and notified compound
officers. Compound Officer Everitt took the substance to the
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lieutenant’s office and tested it with the Alcosensor 3 serial number
1222816. It had a positive reading of .105".
The DHO also relied upon one (1) photograph depicting plastic soda
bottle, liquid substance and Alco-Sensor III reading of .105; as well
as a memorandum dated March 19, 2014 from A. Everitt, Senior
Officer Specialist, which cites in pertinent part on the date of the
incident while working as the compound #1 officer, he was asked by
the F1 officer to stop by the unit, the reporting staff member
informed him she located a soda bottle with a substance inside that
registered on her Alco-Sensor flashlight, the bottle was found
secured in NOBREGA’s wall locker, he admitted the bottle
belonged to him, he then transported the bottle and the inmate to the
lieutenant’s office where he tested the substance with the AlcoSensor III, and obtained a positive reading of “.105".
The DHO considered and affords little weight to NOBREGA’s plea
“We’re here because of procuring actual illegal contraband. There
was no intent to make it illegal. The defendant was practicing his
religion. He got the juice in that bottle on that Saturday after
religious practices. After Saturday the bottle was left in the cell
until the next Saturday, the 19th. The defendant harbored grape juice
because they are not giving religious services to the Jewish nation
on Saturday which is our Shabbat. They’re not letting us eat our
meals in front of candles. We have to have grape juice.”, and when
further interrogatories were posed by the DHO the manner in which
religious services purportedly provided him grape juice, he replied
“There was a grape juice box Lt. Rosler was given to him by Officer
Everitt. I don’t remember the date on the box,” when questioned
regarding the liquid substance in the soda bottle as depicted in
photographic evidence, NOBREGA responded “I had a bottle and
had an empty box of grape juice. Yes, that was my bottle. It was
less than an ounce”, and stated “I asked them to do a proper
toxicology test.” NOBREGA also testified “If you stick anything in
a bottle it can accidently turn bad,” acknowledged being provided
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grape juice in a box not a soda bottle, and sated “We’re supposed to
consume it [grape juice] Friday, Saturday and Sunday. No, they
don’t give it to us to hold.” The DHO also considered his written
statement and witness testimony of JOHNSON, LAWRENCE
06586-084 and PETERKIN, SHAWN 57697-054. The DHO finds
his plea fails to exculpate him of the charge.
The hearing officer will address NOBREGA’s argument “in toto”.
First, and specific to his request for a “polygraph tester” and “20 cc
of sodiumpenthenol” [Sodium Penthanol], these are not agency nor
statutory “sin qua non’s”, and as such the hearing officer will reject
this request. The actual grape juice box to “Show the best date on
the box, what will show if the juice given to the defendant bad or
out of date” is equally nugatory. Not a scintilla of evidence, other
than NOBREGA’s self-admittance, the derivation of the substance
was from grape juice provided by religious services. NOBREGA
testified he “didn’t remember the date of the box”. Therefore, the
fact the substance was grape juice, was “bad” or was even “out of
date” is speculative at best.
NOBREGA argued he “got the juice in the bottle on that Saturday
after religious practices. After Saturday the bottle was left in the
cell until the next Saturday, the 19th. The Defendant harbored grape
juice because they are not giving religious services to the Jewish
nation on Saturday which is our Shabbat. They’re not letting us eat
our meals in front of candles. We have to have grape juice.” The
hearing officer need not enter the territory of whether he is being
deprived of the opportunity to pursue his religious beliefs and
practices. The essential threshold is the issue whether NOBREGA
possessed the intoxicant.
Even if his religious practices were being impeded, there are other
viable avenues available for complaint and problem resolution other
than “harboring” grape juice (i.e. administrative remedy complaint
process, Inmate Request to Staff Member, and voicing ones
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concerns to executive or supervisory staff). Moreover, the purpose
of the Administrative Remedy Program is to allow an inmate to seek
formal review of an issue relating to any aspect of his/her own
confinement. These procedures are available by which inmates will
be able to have any issue related to their incarceration formally
reviewed by high-level Bureau officials.
NOBREGA also argued “I asked them to do a proper toxicology
test”. A review of the facts and evidence presented in this case the
substance was tested in accord with agency policy and procedure,
which far-exceeded agency established threshold levels, and this
basis fails to warrant expunction of the charge.
Lastly, NOBREGA argued “If you stick anything in a bottle it can
accidentally turn bad,” an argument of which the hearing officer
finds preposterous and contrary to reason. Making a tremendous
leap and giving merit to the argument the substance was grape juice
which “turned bad”, the DHO does not believe it would evolve into
an intoxicant without adulteration, or metabolic process of
converting sugar to acids, gases and/or alcohol using yeast or
bacteria. Fermentation is the decomposition of foodstuffs generally
accompanied by the evolution of gas. Alcoholic fermentation is
when sugar is converted into alcohol and carbon dioxide. During
this process organic matter is decomposed in the absence of air
(oxygen); hence, there is always an accumulation of reduction
products, or incomplete oxidation products.
All inmates are responsible for all property and contraband in their
possession, dominion and that of which they exercise control. The
bottle containing a substance which yielded a positive test for
intoxicant, was discovered in NOBREGA’s locker, and as such the
hearing officer will sustain the charge.
The DHO considered all evidence and has drawn the conclusion
based on the greater weight of the evidence the prohibited act of
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Possession of any Narcotics, Marijuana, Drugs, Alcohol,
Intoxicants, or Related Paraphernalia Not Prescribed for the
Individual by the Medical Staff, Code 113, was committed. The
charges were amended from the equivalent series charge of
Introduction or Making of any Narcotics, Marijuana, Drugs,
Alcohol, Intoxicant, or Related Paraphernalia, not Prescribed for the
Individual by Medical Staff (Code 111), as the elements of his
actions most satisfies that of Code 113.
Id. The DHO sanctioned Petitioner to disallowance of forty (40) days good conduct
time; forfeiture of non-vested good conduct time forty (40) days; sixty (60) days
disciplinary segregation, expiring 6/10/2014; ten (10) months loss of commissary
privileges, concluding on 2/10/2015; ten (10) months loss of TRULINCS privileges,
expiring 2/10/2015; ten (10) months loss of telephone privileges, concluding on
2/10/2015; and loss of other privileges- two (2) months impound property, excluding
religious and legal material. Id. The DHO documented his reasons for the sanctions
given as follows:
Use of intoxicants in a correctional setting may create a disruption
of the facility and jeopardize the safety of staff an inmates.
Intoxicated inmates have proven in the past to be assaultive to both
staff an inmates, creating an unsafe environment. Consumption of
alcohol impairs ones mental and physical faculties. Intoxication
results in a temporary experience of a wide range of emotion,
ranging from anger, sadness and depression to euphoria,
lightheartedness and joviality. Behavior of this nature is egregious
and cannot be permitted.

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The sanctions imposed by the DHO were taken to let the inmate
know that he, and he alone, will be held responsible for his
behavior.
Disciplinary segregation, forfeiture of non-vested good conduct
time, and the disallowance of good conduct time were imposed to
demonstrate the seriousness of his actions and as punishment for his
conduct. The loss of commissary, TRULINCS, and telephone
privileges, as well as impounding of property, was imposed to deter
further behavior. It is hoped that these sanctions prompt
NOBREGA to modify his behavior and deter others from engaging
in such activities in the future.
Id. Nobrega was advised of his appeal rights at the conclusion of the hearing. Id.
Discussion
Liberty interests protected by the Fifth Amendment may arise either from
the Due Process Clause itself or from statutory law. Torres v. Fauver, 292 F.3d 141
(3d Cir.2002). 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.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
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
Petitioner’s sanctions did include the loss of good conduct time, Petitioner has
identified a liberty interest in this matter.

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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 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. Wolff, 418
U.S. at 563-67. 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.
Nobrega’s disciplinary hearing was held in April 2014. The applicable
Bureau of Prisons’ inmate disciplinary procedures for this time frame are codified at
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28 C.F.R. § 541.1, et seq., and 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 the 2014 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. § 541.14. The incident is then
referred to the UDC for an initial hearing pursuant to § 541.15. The UDC hearing is
“ordinarily held within three work days from the time staff became aware of the
inmate’s involvement in the incident” and does not include the initial day staff learns
of the incident, weekends or holidays. See 28 C.F.R. § 541.15(b). This period may
be extended for good cause shown by either the inmate or staff. See 28 C.F.R. §
541.15 (k). 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 more than minor sanctions, or involves a prohibited act listed in the
greatest severity category, the UDC must refer the matter to a disciplinary hearing
officer for a hearing. 28 C.F.R. § 541.15. “The DHO shall give the inmate a written
copy of the decisions and disposition, ordinarily within 10 days of the DHO’s
decision.” 28 C.F.R. § 541.17(g).

In the instant case it is clear that Nobrega was afforded all of the required
procedural rights set forth in Wolff. He received timely notice of the incident report.
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 to present witnesses on his behalf. Although Nobrega initially
requested Senior Officer Specialists Everitt and Alogna as his staff representative at
his April 10, 2014 disciplinary hearing, this request for these particular staff
representatives was denied because of their personal involvement with the incident at
issue. Nobrega, however, was provided and did agree to have Lieutenant Rosler
substituted as his staff representative. DHO Renda noted that Nobrega consented to
the substitution of the staff representative and, as such, there is no basis to find any
due process violation. See Von Kahl v. Brennan, 855 F. Supp. 1413, 1421 (M.D. Pa.
1994) (finding in a federal inmate disciplinary proceeding “where the minimal
requirements of due process have been met, an inmate must show prejudice to the
rights sought to be protected by the regulation claimed to be violated” in order to
obtain habeas relief)
To the extent that Petitioner argues that the contents of the confiscated bottle
were not sufficiently verified as intoxicants. DHO Renda relied upon the testing
performed by the staff members at USP-Canaan following the confiscation of the

liquid to sanction Nobrega. At the disciplinary hearing, the staff members involved
in the testing of the liquid testified that the analysis was performed in accordance
with established agency policy and procedures. This evidence clearly indicated that
the bottle confiscated from Nobrega’s locker contained alcohol. A review of the
record also reveals that the equipment used to test the liquid was appropriately
calibrated in accordance with established institutional guidelines, set forth at BOP
Policy Statement § 6590.07, Alcohol Surveillance and Testing Program. Thus, there
is no support for Nobrega’s allegation that the bottle confiscated from Nobrega did
not contain alcohol.
Since Nobrega was afforded all of his procedural rights, the only remaining
issue is whether there was sufficient evidence to support the decision by the DHO.
The record clearly reveals the existence of specific documentary evidence submitted
at the hearing to allow the DHO to conclude that the greater weight of the evidence
supported a finding of guilt. Specifically, the DHO relied upon the following: (1) a
photograph depicting soda bottle; (2) liquid substance and Alco-Sensor III reading of
.105; and (3) Memorandum dated March 19, 2014 from A. Everitt, Senior Officer
Specialist. Based on the foregoing, the Court concludes that the evidence before the
DHO was sufficient to support the outcome of the hearing and meets the
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requirements imposed by the Due Process Clause.
To the extent that Petitioner argues that the DHO found him guilty of the
prohibited act of Possession of any Narcotics, Marijuana, Drugs, Alcohol,
Intoxicants, or Related Paraphernalia Not Prescribed for the Individual by the
Medical Staff, an act, he claims he was not originally charged with, BOP policy as
codified at 28 C.F.R § 541.8(a)(1) provides that the DHO may find that an inmate
“committed the prohibited act(s) charged, and/or a similar prohibited act(s) as
described in the incident report.” 28 C.F.R § 541.8(a)(1). The DHO noted that all
inmates are responsible for all property and contraband in their possession, dominion
and that of which they exercise control. The bottle containing a substance which
yielded a positive test for intoxicant, was discovered in Nobrega’s locker, and as
such the hearing officer will sustain the charge. After considering all the evidence,
the DHO concluded that the greater weight of the evidence supported the finding of
the prohibited act of Possession, rather than Making, of any Narcotics, Marijuana,
Drugs, Alcohol, Intoxicants, or Related Paraphernalia Not Prescribed for the
Individual by the Medical Staff. Based on the foregoing, the Court concludes that
the evidence before the DHO was sufficient to support the outcome of the hearing
and meets the requirements imposed by the Due Process Clause.
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Finally, the Court finds that all sanctions imposed by the DHO were within
the limits of 28 C.F.R. § 541.3. Petitioner was found guilty of a 100-level, greatest
severity prohibited act. Pursuant to 28 C.F.R. § 541.3, the following are the
sanctions available for 100-level offenses:
Table 1 — Prohibited Acts and Available Sanctions
Available Sanctions for Greatest Severity Level Prohibited Acts
A.

Recommend parole date rescission or retardation.

B.

Forfeit and/or withhold earned statutory good time or
non-vested good conduct time (up to 100%) and/or
terminate or disallow extra good time (an extra good
time or good conduct time sanction may not be
suspended).

B.1. Disallow ordinarily between 50% and 75% (27-41
days) of good conduct time credit available for year (a
good conduct time sanction may not be suspended).
C.

Disciplinary segregation (up to 12 months).

D.

Make monetary restitution.

E.

Monetary fine.

F.

Loss of privileges (e.g., visiting, telephone,
commissary, movies, recreation).

G.

Change housing (quarters).

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H.

Remove from program and/or group activity.

I.

Loss of job.

J.

Impound inmate's personal property.

K.

Confiscate contraband.

L.

Restrict to quarters.

M.

Extra duty.

Thus, the sanctions imposed by the DHO in the present case were consistent
with the severity level of the prohibited act and within the maximum available to the
DHO. Accordingly, the petition will be denied. A separate Order will be issued.

Dated: January 30, 2017

/s/ William J. Nealon
United States District Judge

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