Rodriguez v. Ebbert

Filing 27

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 10/19/2016. (emksec, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

ANGEL LUIS RODRIGUEZ,
Petitioner,
v.
DAVID J. EBBERT,
Respondent.

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CIVIL NO. 3:15-CV-1952
(Judge Kosik)

MEMORANDUM
Presently before the court is a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 filed by Angel Rodriguez (“Rodriguez”). Rodriguez is currently
confined at the United States Penitentiary (“USP”) at Lee in Jonesville, Virginia. At
the time he filed the petition, Rodriguez was confined at USP- Allenwood, in
Allenwood, Pennsylvania, located in the Middle District of Pennsylvania. In the
petition, Rodriguez alleges that his due process rights were violated during a
disciplinary hearing conducted at USP-Lewisburg, his former place of confinement.
He was found guilty of the prohibited acts of Introduction of Narcotics (Code 111A
violation); Use of Mail for an Illegal Purpose (Code 196 violation); and Use of
Telephone for an Illegal Purpose (Code 197A violation). (Doc. 1, Pet.) The matter is
ripe for consideration, and for the reasons that follow, the petition will be denied.

I.

Factual Background
On September 9, 2014, Rodriguez was issued an incident report for conduct

occurring between July 23, 2014 and September 9, 2014. The incident report was
#2626628 and was issued by Special Investigative Services (“SIS”) Tech A. Hartman.
An investigation revealed that between July 23, 2014 and September 4, 2014,
Rodriguez attempted to orchestrate the introduction of Suboxone into USP-Lewisburg
through an outside contact. (Doc. 19, Ex. 1, Romano Dec. at ¶ 6; Attach. C, Incident
Rpt.) The incident report, attached by both Rodriguez and the Respondent, sets forth
a series of coded letters and phone calls between Rodriguez, four (4) other inmates,
and outside contacts which talk about Rodriguez’s receipt of photographs of female
genitalia concealed between pages in a football magazine. (Id., Ex. 1, Attach. C at 24.) Mail was subsequently intercepted by the SIS which contained strips of Suboxone
concealed between pages in football magazines and under postage stamps. (Id.)
Rodriguez was charged with the introduction of narcotics into the facility, as
well as the use of the telephone and the use of the mail to further criminal activity. He
received a copy of Incident Report #2626628 on September 9, 2014, from Officer
Waughen. He made no comments to the investigating officer, and on September 10,
2014, he again made no comment when he appeared before the Unit Discipline
Committee (“UDC”). (Id. at 3-5.) On September 10, 2014, the UDC forwarded the
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incident report to the Discipline Hearing Officer (“DHO”) due to the severity of the
charges, but further action on the incident report was suspended pending referral to the
FBI for possible criminal prosecution. (Id. at 4; Attach. D, Excerpt from PS 5270.09.)
The Incident report was released for administrative processing on October 22, 2014.
The following day, Rodriguez again appeared before the UDC, who again referred the
matter for a DHO hearing. (Id., Ex. 1, Attachs. E, F at 9.)
On October 23, 2014, Rodriguez received the Notice of Discipline Hearing
before the DHO and Inmate Rights at Discipline Hearing forms. (Doc. 19, Ex. 1, ¶ 6;
Attach. G, H.) While Rodriguez refused to sign these forms, the Notice of Hearing
form does reflect that Rodriguez requested that inmates Armstrong, Mungia and
Estevez serve as witnesses along with staff member C. Rothermel. (Id., Attach. H.)
A DHO hearing was thereafter conducted on November 12, 2014. (Doc. 19,
Attach. F, DHO Rpt.) It was first confirmed at the hearing that Rodriguez had
received advanced written notice of the charges against him. (Id. at 9.) Because the
staff member originally selected by Rodriguez to serve as his staff representative, Ms.
L. Lyons, was no longer employed at USP-Lewisburg, Rodriguez chose another staff
representative who appeared on his behalf at the hearing. This staff representative,
Ms. Wintersteen, informed the hearing officers that she had met with Rodriguez at his
cell before the DHO hearing, and that she had reviewed all of the documentary
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evidence in the matter prior thereto and during the hearing. (Id. at II(C)(E).) It was
noted in the DHO Report that the staff representative also stated that she reviewed the
recorded telephone calls made by inmate Hurst and Estevez. She also stated that
Rodriguez made no specific requests of her as a staff representative in this case. (Id.
at II(E).) She stated that she had no first hand knowledge of the incident that took
place in this case, and had no further information to present or statement to make
regarding this case. (Id.)
However, during the DHO hearing, Rodriguez stated that he did not receive an
opportunity to meet with his staff representative in advance of the hearing. (Id., Ex. F
at 3.) According to Rodriguez, he had a two-page list of items for the staff
representative to obtain, and requested that the hearing be suspended to permit the
staff representative to obtain said items. (Id.) Rodriguez contradicts the statements he
made during the hearing that he did not have the opportunity to meet with Wintersteen
before the hearing, in the memorandum of law submitted in support of his pending
petition. (Doc. 2 at 2, 14-15.)1
Rodriguez attaches to his habeas petition a document entitled “Items I am
Requesting My Staff Rep. Ms. Lyons to Retrieve, Verify from Witnesses and Staff”.
In his supplemental traverse, Rodriguez now appears to admit that he did meet
with his newly requested staff representative, but that she refused to obtain the
documents he requested. (Doc. 26 at 4.)
1

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(Doc. 1-1 at 10-15.) In said document, Rodriguez requests the following:
(1)

SIS confirmation that he was placed in a medical cell on
August 4, 2014, strip searched, and not permitted to have
writing materials for the first five days in the cell to show
that he could not have written a letter to his fiancé on that
date;

(2)

Interviews of inmates Armstrong, Mungia, Estevez and
Hurst;

(3)

Interview of Case Manager Rothermel concerning the
suspension of the incident report after the UDC hearing on
September 10, 2014; and,

(4)

Verification from the publisher of a magazine to show that it
was mailed directly to Rodriguez to prove that his fiancé did
not send him sexually explicit photos concealed within the
pages of the magazine.

(Id.) Also attached to the habeas petition is a statement authored by Rodriguez
entitled, “I Plead Not Guilty to All Charges” in which he requests that inmates Mungia
and Armstrong appear as witnesses. (Id. at 16-21.)
The DHO Report reveals that Rodriguez submitted two (2) written statements,
three (3) letters and one hundred and forty (140) pages of legal documentation. (Doc.
19, Ex. F at 8.) At the hearing, Inmate Estevez testified. (Id. at 6.) Also, the DHO
interviewed inmates Armstrong, Mungia and Hurst with respect to the matters
identified in Rodriguez’s statement. (Id. at 6-7.) Unit Manager J. Adami, Officer K.
Bower, Officer E. Gee and Case Manager Rothermel were also interviewed by the
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DHO. Although Officer D. Bullington was unavailable, the DHO deemed his
testimony unnecessary in that he would only be presenting repetitive evidence of what
was said by the other staff members that were interviewed. (Id. at 7.)
It was noted at the beginning of the hearing by the DHO that a procedural error
had occurred in this case. Specifically, the investigating lieutenant forwarded the
incident report to the UDC on September 10, 2014, before the incident report was
suspended for FBI referral. (Id. at 9.) But, it was determined by the DHO that
Rodriguez did not suffer any due process violation based on the foregoing, because his
ability to defend himself was not impeded in that he had made no comments to either
the initial investigating lieutenant or the UDC. It was further noted by the DHO that
the error happened well before the 24 hour period prior to the DHO hearing. (Id.)
Rodriguez testified at the DHO hearing that he could not have written a letter to
his fiancé on August 4, 2014, because he had been moved to a new cell on the date of
the letter, and did not have a pencil and paper for five days. (Id. at 1.) He stated that
inmate Armstrong never brought any drugs into the institution, but only wrote to his
fiancé as a pen pal. Rodriguez further states that he did not know inmate Mungia, and
that inmate Hurst was only giving his fiancé betting lines on the phone. (Id.)
Rodriguez further states that Suboxone is not a drug, and that the magazine in which
the Suboxone was discovered by the SIS was sent directly from Barnes and Noble to
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the institution. (Id.) The testimony given at the DHO hearing by inmate Estevez was
that he made a phone call as a favor to Rodriguez, and that it was “concerning legal
work.” (Id. at 6.)
With respect to the staff members and inmates interviewed by the DHO (id. at
6-7), the three staff members contradicted Rodriguez’s testimony and informed the
DHO that Rodriguez had access to writing materials on August 4, 2014. Inmate
Armstrong states that he knew nothing about any drugs and only wrote to Rodriguez’s
girl (Maria Tavarez) “to get a pen pal.” (Id.) Inmate Mungia remained silent and
refused to state whether he knew Rodriguez. Mungia did state, “I didn’t know who
was sending me that stuff (Suboxone)” and that “Suboxone is not an illegal drug, it is
a medication.” (Id.) Inmate Hurst stated, “I called her (Maria Tavarez) because I was
running a gambling ticket for the baseball lines. I don’t even know what Suboxone
was. Once I realized what was going on, I stopped.” (Id.)
Based on the foregoing, the DHO determined that Rodriguez had committed the
prohibited acts as charged. (Id. at 9-15.) The evidence considered and relied on was
as follows. First, the DHO considered the written report of the SIS Technician, which
detailed the communications of the individuals involved in the conspiracy to introduce
Suboxone into the prison. The Incident Report lays out by date beginning on April 16,
2014, and continuing into August of 2014, the details of what took place in this action.
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The court will not repeat it all herein, but the report sets forth what happened, by
whom, and on what specific date. (Doc. 19, Attach. C, Incident Rpt.)
The DHO noted Rodriguez’s denial of the charges and each of the defenses he
presented in his statements. However, although Rodriguez claimed he could not have
written the letter to his fiancé on August 4, 2014, the DHO notes that the staff member
witnesses all state that Rodriguez had access to writing materials on said date. (Doc.
19, Attach. F at 12.) It was also concluded by the DHO that inmate Armstrong had
written to Maria Tavarez (the fiancé of Rodriguez) with a desire to obtain Suboxone,
noting that the code word “Nancy” was consistently used by Rodriguez and other
inmates to introduce Suboxone into the institution. While Rodriguez claims that
Armstrong did not receive Suboxone, this is unproven and did not discount the
culpability on the part of Rodriguez. Rodriguez’s repeated testimony that Maria
Tavarez never sent Suboxone to Armstrong was found by the DHO to be an attempt to
protect his fiancé. (Id.)
While the DHO found that inmate Hurst did obtain baseball betting information
from Maria Tavarez during their phone call, the two had communicated in code in the
beginning and the end of their conversation with respect to the introduction of
Suboxone into the institution. (Id.) It was noted by the DHO that during this
monitored phone call, inmate Hurst was reading from a script provided by Rodriguez,
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and also communicating with Rodriguez during the call. The DHO found no support
for Rodriguez’s claim that Hurst and Tavarez were talking about reading books sent to
Hurst by his uncle. The DHO concluded that the greater weight of evidence supported
the conclusion that the call between Hurst and Tavarez was with respect to introducing
Suboxone into the prison.
Rodriguez was not found to be credible with respect to the statement that he did
not know inmate Mungia. The DHO found that both inmates used the code words
“birthday cake” when they wrote to Maria Tavarez, and referred to photographs of
female genitalia discovered between the pages of a football magazine. This
information could not be intercepted on an inmate-to-inmate note. The DHO also did
not find Rodriguez’s statement credible because Mungia later received a football
magazine with Suboxone inside, Mungia was housed across from Rodriguez’s cell at
the time of the misconduct, and both inmates testified that Suboxone was not an illegal
drug. (Id. at 13.)
While the DHO did agree that the legal documentation submitted by Rodriguez
established that Maria Tavarez performs legal functions for him, the DHO concluded
that the greater weight of evidence also showed that Tavarez mailed Suboxone to other
inmates at the institution at the request of Rodriguez. (Id.) There existed no evidence
to support Rodriguez’s claim that he was set up by the SIS, and his claim that the
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Suboxone was sent to the prison from Barnes and Noble was found to be unbelievable.
In addition, the DHO found that Rodriguez’s claim that he communicates with his
fiancé Maria Tavarez using code words to be a partial admission of the commission of
a prohibited act, particularly because the same code words were used by Tavarez when
communicating with inmates Armstrong, Mungia, Hurst and Estevez to relay secretive
information back to Rodriguez. (Id.)
Rodriguez claimed that he did not commit the prohibited act of phone abuse in
that he did not make any of the calls referenced in the Incident Report. While this was
considered, it was found by the DHO that making plans to commit phone abuse was
treated the same as committing the prohibited act, and that the evidence in this case
supported a finding that Rodriguez had orchestrated the introduction of the Suboxone
to the facility and abetted it through the inmates and their use of the phone to contact
his fiancé. (Id.)
Little weight was afforded by the DHO to Armstrong’s testimony that he wrote
to Maria Tavarez as a pen pal. Armstrong had been found guilty of mail abuse in this
case, and had used the same coded messages as Rodriguez. Further, Armstrong and
Rodriguez appeared to have rehearsed their denials as well. (Id.)
Estevez was also found guilty of phone abuse in this case. The DHO gave very
little weight to his testimony that he called Tavarez for Rodriguez concerning legal
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work, because Estevez used the code words during the conversation with Tavarez to
send Suboxone into the prison. (Id.)
It is further noted that inmate Mungia was previously found to have introduced
Suboxone into the institution for Rodriguez. In addition, both inmates testified that
Suboxone was not an illegal drug. This testimony by both lends credibility to the
existence of a conspiracy to introduce Suboxone into the facility. (Id.)
The DHO also considered inmate Hurst’s statement that he stopped calling
Tavarez when he realized what was going on. This was used by the DHO as evidence
that supported the conclusion that Rodriguez committed the prohibited acts he was
charged with. (Id. at 14-15.)
In addition to the forgoing, the DHO noted Rodriguez’s history of introducing
narcotics into USP-Canaan and USP-Lewisburg in the past. This was used to draw an
adverse inference against him for introducing Suboxone into the prison in this case. It
was therefore concluded by the DHO that Rodriguez committed the charged
prohibited acts of Introduction of Narcotics (Code 111A), Use of Mail for an Illegal
Purpose (Code 196), and Use of Telephone for an Illegal Purpose (Code 197A).
(Id.)
As a sanction, for each of the three (3) offenses, Rodriguez lost forty-one (41)
days of good conduct time, and received ninety (90) days disciplinary segregation and
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the loss of privileges. He also received a $500 monetary fine for the Code 111A
offense that is authorized by Bureau of Prison policy. (Doc. 19, Attach. J, Program
Statement 5270.09 excerpt.) One of the claims in Rodriguez’s petition is that he
lacked sufficient funds in his account to support the imposed fine. However, on
November 18, 2014, the encumbrance for the fine was posted, and Rodriguez had an
inmate account balance of $1,279,41. (Id., Attach, K, Inmate Statement.)
II.

Discussion
While Respondent does not believe the Rodriguez has properly exhausted his

administrative remedies, he does not pursue the exhaustion argument and has decided
to address Rodriguez’s claims on the merits. (Doc. 19 at 3, n.2.)
The Bureau of Prisons (“BOP”) disciplinary process is fully set forth in the
Code of Federal Regulations (“CFR”), Title 28, Sections 541 through 541.8. These
regulations dictate the manner in which disciplinary action may be taken should a
prisoner violate institutional rules. The first step requires filing an incident report and
conducting an investigation. Staff are required to 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 then 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
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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 DHO for a hearing. Id.
“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 the following: (1) the right to appear before an impartial decision-making
body; (2) written notice of the claimed violation at least twenty-four (24) hours in
advance of the hearing; (3) 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; (4) assistance from an inmate or staff member
if the charged inmate is illiterate or if complex issues are involved; and (5) a written
statement by the factfinder as to evidence relied on and reasons for the disciplinary
action. See Wolff v. McDonnell, 418 U.S. 539, 563-70 (1974). The DHO’s decision
is required to be supported by some evidence in the record. See Superintendent v.
Hill, 472 U.S. 445, 453-56 (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
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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).
In his petition, Rodriguez claims his due process was violated because:
(1)

an error caused the disciplinary proceedings to be suspended
after the investigation and hearing before the UDC were
initially conducted;

(2)

his staff representative failed to obtain evidence and
interview witnesses on his behalf;

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(3)

the DHO was biased and prejudiced against him by
permitting nine officers to sit in the hearing room who
characterized Rodriguez as being guilty during the hearing;
and,

(4)

the $500 sanction is improper because Rodriguez only had
$279.41 in his account.

(Doc. 2, Pet’r Mem. of Law.)
The procedural requirements of Wolff and Hill have been met in the instant
case. While Rodriguez claims that an error resulted in the suspension of the incident
report pending an FBI review, this did not violate his due process rights. He made no
comments concerning the incident report to any staff member before the referral and
error, and they occurred more than two months before the DHO hearing took place.
Moreover, Rodriguez was not prevented from defending himself against the charges
lodged him. (Doc. 19, Ex. 1, Attach F. at 9.)
Further, Rodriguez requested and was afforded a staff representative. While at
the time of the UDC hearing he originally indicated that he wanted Ms. Lyons, she
was no longer employed with the institution and could not serve as his representative.
As such, he then requested Ms. L. Wintersteen, and she appeared on his behalf during
the DHO hearing. (Doc. 19 at 33, Ex. F, II(B).) Ms. Wintersteen stated that she met
with Rodriguez at his cell prior to the hearing and that she reviewed all the
documentary evidence prior to and during the hearing. She stated that she reviewed
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the recorded phone calls made by inmates Hurst and Estevez. She also stated to the
DHO that Rodriguez made no specific requests of her as his staff representative, and
that she had no firsthand knowledge of this incident. The DHO Report reflects all of
this. Moreover, while Rodriguez states that his staff representative refused to
interview or obtain statements from his requested witnesses, he does not state in the
petition or supporting memorandum that the DHO allowed each of the witnesses to
testify, and that the DHO himself interviewed each witness with respect to the reasons
stated by Rodriguez for wanting the witness.
The memorandum of law submitted by Rodriguez also contradicts his
statements made during the DHO hearing that his staff representative failed to meet
with him in advance of his hearing. (Doc. 2; Doc. 19, Ex. 1, Attach. F.) Further, it is
clear that the DHO received the two statements that Rodriguez claims he provided to
the staff representative. The DHO’s detailed explanation of the reasons for finding
Rodriguez guilty indicates that the DHO considered all of the evidence available, as
well as the testimony and the witness interviews, all of which Rodriguez wanted
submitted on his own behalf. There is no evidence that Rodriguez was unable to
defend himself against the charges due to an alleged failure by the representative to
interview witnesses or gather evidence. The evidence that formed the basis of the
incident report was defended by Rodriguez. He is not illiterate and was clearly able to
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defend himself. As such, the court cannot say that the staff representative failed to
perform her function or that having a staff representative was even absolute in this
case.
Rodriguez also alleges that the DHO was biased against him. He bases this
argument on the fact that staff members were permitted to sit in the hearing room. He
also appears to suggest that the DHO was biased because he failed to expunge the
incident report. (Doc. 2 at 20-22.) When examining the right to an impartial decisionmaker, the only persons excluded therefrom are those who have a direct personal or
substantial involvement in the underlying charges. See Meyers v. Alldredge, 492 F.2d
296, 306 (3d cir. 1974). In the instant case, there is absolutely no evidence that the
DHO in this case had any direct, personal or substantial involvement in the underlying
charges against Rodriguez. There is nothing in the record to support Rodriguez’s
claims of bias leveled against the DHO.
It is also important to point out that Rodriguez never questioned the DHO’s
decision to not require the testimony of Officer Bullington. Regardless, the court
agrees that this witness’ testimony was unnecessary, as it would have been repetitive
of testimony given. See Pannell v. McBride, 306 F.3d 499, 503 (7th Cir. 2002).
Further, as Respondent correctly points out, the right to call witnesses is not absolute
in any event. Institutional safety or correctional goals take precedence. Ponte v. Real,

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471 U.S. 491, 497 (1985)(citing Wolff, 418 U.S. at 566).
Rodriguez finally claims that his monetary fine was improper. First of all, the
monetary fine of $500 does not implicate the length of Rodriguez’s sentence. But,
even if it did somehow, it was authorized in this instance. BOP policy 5270.09,
Inmate Discipline Program, authorizes a monetary fine of up to $500, or 75% of the
inmate’s trust fund balance for greatest severity level offenses. It can only be imposed
by the DHO, and not by the UDC. (Doc. 19, Ex. 1 ¶ 6, Attach. J.) Although
Rodriguez claims that he lacked sufficient funds in his inmate account to support the
$500.00 monetary fine, he had an account balance of $1,279.41 on November 18,
2014, when the encumbrance for the fine was posted on his account as demonstrated
by the Inmate Account record submitted for Rodriguez.2 (Id., Attach. K, Inmate
Statement.) While in his supplemental traverse Petitioner argues his “available
balance” was only $279.41 due to earlier encumbrances he had placed upon him, he
readily admits that the balance reflected on the relevant date revealed that he had an
account balance of $1,279.41. It is upon this balance, as reflected on Petitioner’s
statement, that the $500.00 fine was imposed. There is no indication that any of the
money in Petitioner’s account was “frozen” and unable to be used as Petitioner argues.

Although the DHO signed and dated the DHO Report on December 17, 2014,
the hearing itself was conducted on November 12, 2014, six (6) days prior to the date
the fine was posted to Rodriguez’s account. (Doc. 19, Attach. F at 1, 16.)
2

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Based on the foregoing, it is clear that Rodriguez received all of his due process
rights and that the decision of the DHO was based on “some evidence,” if not the
“greater weight of the evidence.” For these reasons, the petition will be denied in that
Rodriguez’s arguments wholly lack merit. An appropriate order follows.

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