# Toth v. Spaulding

> District Court, D. Massachusetts · August 13, 2020

URL: https://www.frixlaw.com/law-library/cases/10198857

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** August 13, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10198857

## How later opinions describe it (automated extraction)

- stating that pro se complaints should be liberally construed

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PAUL R. TOTH, *
*
Petitioner, *
*
v. *
* Civil Action No. 19-cv-11611-ADB
STEPHEN SPAULDING, Warden, FMC *
Devens, *
*
Respondent. *
*

MEMORANDUM AND ORDER ON RESPONDENT’S MOTION TO DISMISS

BURROUGHS, D.J.
Petitioner Paul R. Toth, (“Petitioner”), filed his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, seeking relief in connection with a disciplinary hearing that
resulted in losing good time credit, spending time in segregation and special units, and
restrictions on e-mail and commissary use. [ECF No. 1 at 5]. Petitioner alleges that these
punishments were in violation of his Sixth Amendment right to counsel and his Fifth
Amendment right to Due Process. See generally [id.]. Currently before the Court is Respondent
Stephen Spaulding’s (“Respondent”) Rule 12(b)(6) motion to dismiss for failure to state a claim.
[ECF No. 10]. For the reasons set forth below, Respondent’s motion, [ECF No. 10], is
GRANTED.
I. BACKGROUND
Petitioner is currently serving a 108-month term of imprisonment at the Federal Medical
Center in Devens, Massachusetts, for conspiracy to commit money laundering in violation of 18
U.S.C. § 1956(h), and money laundering in violation of 18 U.S.C. § 1956 (a)(2)(B)(1). [ECF
No. 1 at 2; ECF No. 11 at 1–2]. Petitioner seeks relief from a punishment imposed after a
disciplinary hearing that took place in April 2018, when Petitioner was being held at the Federal
Correctional Institution in Morgantown, West Virginia. [ECF No. 11 at 2].
On January 12, 2018, a forensic analysis on a cell phone found in Petitioner’s unit
indicated that a call had been placed to a number that was on Petitioner’s Bureau of Prisons

(“BOP”) approved call list. [ECF No. 1 at 6; ECF No. 1-1 at 4 (April 11, 2018 disciplinary
hearing report)].1 That number was not on the approved call list of any other inmate. [ECF No.
1 at 6; ECF No. 1-1 at 4]. On March 6, 2018, Toth was issued an incident report charging him
with a violation of Code 108, possession of a hazardous tool (cell phone). [ECF No. 1 at 6; ECF
No. 1-1 at 6 (incident report)]. Petitioner states that on March 9, 2018, a staff member further
informed him of the charge and his rights, including that he could select a staff member to
represent him at the upcoming disciplinary hearing. [ECF No. 1 at 9; ECF No. 1-1 at 2 (notice of
inmate rights)]. Petitioner selected a staff member to represent him but was unable to meet with
her until twenty minutes before the scheduled hearing. [ECF No. 1 at 9; ECF No. 1-1 at 3
(hearing report, indicating that Petitioner’s selected staff member was present)].

On April 11, 2018, Petitioner attended the disciplinary hearing, which was presided over
by a Disciplinary Hearing Officer (“DHO”). [ECF No. 1 at 9; ECF No 1-1 at 3]. During the
hearing, the staff member he had selected to represent him did not provide him with legal advice.
[ECF No. 1 at 9, 10]. Petitioner acknowledged using the cell phone to call his family after
learning of a family emergency, telling the DHO, “I did use the phone to make a call.” [ECF No.
1 at 10; ECF No. 1-1 at 4]. The DHO found Petitioner guilty of the charge and imposed the

1 Petitioner attached copies of the disciplinary record to his petition. [ECF No. 1-1]. When
reviewing a motion to dismiss under Rule 12(b)(6), the Court “may consider ‘documents the
authenticity of which are not disputed by the parties; . . . documents central to plaintiffs’ claim;
[and] documents sufficiently referred to in the complaint.’” Curran v. Cousins, 509 F.3d 36, 44
(1st Cir. 2007) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).
following sanctions: loss of forty-one days of good time; seven days in disciplinary segregation;
loss of commissary services for six months; and loss of e-mail use for six months. [ECF No. 1 at
5; ECF No. 1-1 at 5].
II. LEGAL STANDARD

Section 2241 petitions are available to inmates who are “in custody under or by color of
the authority of the United States . . . .” 28 U.S.C. § 2241. Petitions brought under “§ 2241
generally challenge[] the execution of a federal prisoner’s sentence, including such matters as . . .
prison disciplinary actions . . . .” Thornton v. Sabol, 620 F. Supp. 2d 203, 206 (D. Mass. 2009)
(quoting Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001)), recommendation adopted at 620 F.
Supp. 2d 203, 204 (D. Mass. 2009). “A challenge . . . to a disciplinary action that resulted in the
loss of good-time credits[] is properly brought pursuant to § 2241, as the action could affect the
duration of the petitioner’s sentence.” Carter v. Grondolsky, No. 12-cv-11426, 2014 U.S. Dist.
LEXIS 178303, at *9 (D. Mass. Dec. 30, 2014) (alterations in original) (quoting Queen v. Miner,
530 F.3d 253, 254 n.2 (3d Cir. 2008)). “A petition under § 2241 must be brought in the district

where the prisoner is incarcerated, and must follow exhaustion of all available federal
administrative remedies.” Id. (internal citations omitted) (first citing United States v. Barrett,
178 F.3d 34, 50 n.10 (1st Cir. 1999); then citing Sayyah v. Farquharson, 382 F.3d 20, 24 (1st Cir.
2004)).2
In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all
well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all
reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d

2 Petitioner states that he has exhausted his administrative remedies, [ECF No. 1 at 2], and
Respondent does not dispute this, see generally [ECF No. 11].
74, 80 (1st Cir. 2019). “[D]etailed factual allegations” are not required, but the complaint must
set forth “more than labels and conclusions,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007), and must contain “factual allegations, either direct or inferential, respecting each material
element necessary to sustain recovery under some actionable legal theory,” Gagliardi v. Sullivan,

513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Médico del Turabo, Inc. v. Feliciano de
Melecio, 406 F.3d 1, 6 (1st Cir. 2005)). The alleged facts must be sufficient to “state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570. In addition, “[i]n reviewing the
dismissal of a pro se complaint for failure to state a claim, [the Court] must construe it liberally
. . . .” Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980) (citing Estelle v. Gamble, 429 U.S.
97, 106 (1976)). However, “[t]his is not to say that pro se plaintiffs are not required to plead
basic facts sufficient to state a claim.” Id. (citing Leonardo v. Moran, 611 F.2d 397, 398 (1st Cir.
1979)).
III. DISCUSSION
Petitioner raises two grounds for relief: (1) that his Sixth Amendment rights were

violated when he was not afforded counsel to represent him at the disciplinary hearing; and (2)
that there was insufficient evidence to find him guilty of possession of a cell phone when he only
admitted to using the phone to make a call. [ECF No. 1 at 9, 11].
A. Right to Counsel
Petitioner argues that the staff member he selected to represent him at the hearing did not
provide him with legal advice and should have advised him to argue for a lesser charge. [ECF
No. 1 at 10]. Respondent contends that inmates do not have a Sixth Amendment right to counsel
during disciplinary hearings and that Petitioner received Due Process under Supreme Court
precedent. [ECF No. 11 at 3].
“There is no federal constitutional right to counsel in disciplinary proceedings . . . .”
Felton v. Lincoln, 429 F. Supp. 2d 226, 242 (D. Mass. 2006) (citing Wolff v. McDonnell, 418
U.S. 539, 570 (1974)). Although in Wolff v. McDonnell the Supreme Court indicated that a
prisoner is entitled to some process during prison disciplinary hearings, the Supreme Court stated

that it was “not prepared to hold that inmates have a right to either retained or appointed counsel
in disciplinary proceedings.” 418 U.S. at 570. Petitioner was advised that he had a right to have
a staff member “who [was] reasonably available to represent [him]” at the hearing, but was not
told that the staff member would be able to provide him with legal advice. [ECF No. 1-1 at 2
(notice of inmate rights)]. Petitioner made his selection but could not have reasonably
understood the staff member to have training sufficient to represent him in a legal capacity. As
Petitioner acknowledges, the staff member did provide the DHO with an explanation for
Petitioner’s infraction, telling the DHO that Petitioner “was having various personal issues with
his wife and kids at the time of the incident.” [ECF No. 1-1 at 3]; see also [ECF No. 1 at 9, 12].
Given the Supreme Court’s disinclination to require counsel at disciplinary hearings, the Court

finds that Petitioner’s Sixth Amendment right to counsel was not implicated at the April 11, 2018
disciplinary hearing. See Wolff, 418 U.S. at 570.
While not entitled to counsel, the Supreme Court has outlined several requirements for
any “prison disciplinary hearing [that] may result in the loss of good time credits . . . .”
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985). These include: “(1) advance
written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional
safety and correctional goals, to call witnesses and present documentary evidence in his defense;
and (3) a written statement by the factfinder of the evidence relied on and the reasons for the
disciplinary action.” Id. (citing Wolff, 418 U.S. at 563–67). Petitioner was provided with these
procedural protections. First, as Petitioner acknowledges in his petition, [ECF No. 1 at 9], he
was provided with advance notice of the charge, [ECF No. 1-1 at 6 (incident report dated March
6, 2018); id. at 2 (notice of inmate rights dated March 9, 2018)]. Next, Petitioner was given an
opportunity to present evidence and call witnesses during the hearing, though he waived that

right. [Id. at 4 (hearing report, noting that Petitioner “stated [he] understood his rights, had no
documentary evidence to present, and . . . . waived the previously requested witnesses and signed
a statement confirming this.”)]. Finally, Petitioner was given a written statement providing the
evidence the DHO relied on—including the forensic report on the cell phone and Petitioner’s
own admission at the hearing—in entering a finding of guilty. [Id. at 4–5].
Petitioner received the process that was due under existing Supreme Court precedent and
has therefore failed to state a plausible claim to relief. See Twombly, 550 U.S. at 570.
B. Evidence of Possession
Petitioner next argues that he did not realize he could have argued for a lesser charge
(violation of Code 297, circumventing staff from monitoring a phone call) which would have

resulted in losing less good time. [ECF No. 1 at 11–13]. The Court construes this as a Due
Process claim. See Estelle, 429 U.S. at 106 (stating that pro se complaints should be liberally
construed). Respondent maintains that the DHO’s finding on the possession charge was legally
sufficient in the context of a prison disciplinary proceeding. [ECF No. 11 at 4].
When an inmate’s good time is at risk, the Supreme Court has imposed a burden of
producing only “some evidence” to support a finding of guilt because “[r]evocation of good time
credits is not comparable to a criminal conviction, and neither the amount of evidence necessary
to support such a conviction, nor any other standard greater than some evidence applies in this
context.” Hill, 472 U.S. at 456 (internal citations omitted). “The Federal Constitution does not
require evidence that logically precludes any conclusion but the one reached by the disciplinary
board. Instead, due process in this context requires only that there be some evidence to support
the findings made in the disciplinary hearing.” Id. at 457. This standard is intended to “help to
prevent arbitrary deprivations without threatening institutional interests or imposing undue

administrative burdens.” Id. at 455.
Review as to “whether this 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. As long as there is
“some evidence in the record . . . that supported the [DHO’s] conclusion” the Court is “not
required to set aside decisions of prison administrators that have some basis in fact.” Josselyn v.
Poirier, No. 92-1014, 1992 U.S. App. LEXIS 28876, at *30 (1st Cir. July 27, 1992).
“Actual possession exists when a person has direct physical control over a thing.”
Henderson v. United States, 135 S. Ct. 1780, 1784 (2015) (first citing Black’s Law Dictionary

1047 (5th ed. 1979); then citing 2A K. O’Malley, J. Grenig, & W. Lee, Federal Jury Practice and
Instructions, Criminal §39.12 at 55 (6th ed. 2009)). At his disciplinary hearing, Petitioner
admitted to using the cell phone to contact his family. [ECF No. 1 at 10; ECF No. 1-1 at 4].
This admission alone is sufficient to establish possession. See Chavis v. Hazlewood, No. 19-cv-
00488, 2020 U.S. Dist. LEXIS 46290 (D.N.H. Mar. 18, 2020) (stating that despite petitioner’s
contention that someone else owned the cell phone at issue, “there would still be some evidence
in the record before the DHO to support the finding that [petitioner] ‘possessed’ the cellphone”).
In addition, the DHO had evidence from the forensic report that included a number from
Petitioner’s BOP approved call list. [ECF No. 1-1 at 4]. The DHO therefore had more than
“some evidence” to support his finding that Petitioner did, at least at one time, have possession
of the cell phone. See Hill, 472 U.S. at 455–56. As a result, Petitioner’s Due Process rights
were not violated and he has failed to state a claim for relief. See id.; see also Twombly, 550
U.S. at 570.

IV. CONCLUSION
Accordingly, Respondent’s motion to dismiss the petition, [ECF No. 10], is GRANTED.
SO ORDERED.

August 13, 2020 /s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10198857. Public record. Not legal advice.