The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
GEROME K. KING, :
Petitioner :
CIVIL ACTION NO. 3:18-0015
v. :
(Judge Mannion)
DAVID J. EBBERT :
Respondent :
MEMORANDUM
Gerome K. King, an inmate confined in the Coleman United States
Penitentiary, Coleman, Florida1, filed the above captioned petition for a writ
of habeas corpus, pursuant to 28 U.S.C. §2241. (Doc. 1, petition). He
challenges a disciplinary action against him, which occurred while he was
incarcerated at the Hazelton United States Penitentiary, Bruceton Mills, West
Virginia (USP-Hazelton). Id. Specifically, he claims that “the alleged narcotics
were never properly tested or identified” and “there was no photos, test results
or an outside agency saying that they tested it and the staff member that
identified the alleged narcotics was never made known.” Id. For relief, he
requests the Court “expunge [his] incident report for a 113 and give [him] [his]
1At the time of the filing, the petitioner was housed at the United States
Penitentiary, Lewisburg, PA., within the Middle District of Pennsylvania.
100 days of good conduct time that [he] earned.” Id. The petition is ripe for
disposition and, for the reasons that follow, will be denied.
I. Background
On February 12, 2017 at approximately 2:10 p.m., Incident Report No.
2950455, charging King with Possession of any Narcotics, Marijuana, Drugs,
Alcohol, Intoxicants or Related Paraphernalia not Prescribed for the Individual
by the Medical Staff; Destroying and/or Disposing of any Item During a
Search or Attempt to Search; and Attempting to Assault any Person, in
violations of Codes 113, 115, 224A. (Doc. 9-1 at 7, Incident Report). The
incident report reads as follows:
On February 8, 2017, at approximately 7:29 am I was conducting
a visual search on Inmate King, Gerome #22212-045 in the non-
contact visitation cell. I told inmate King to open his mouth wide
and roll his upper and lower lip in order to visually inspect the
inmate’s mouth. At this time inmate King had placed his left hand
into his mouth, inmate King removed his left hand and at this time
I saw a white piece of paper in the inmate’s upper right lip. I gave
inmate King a direct order to submit to hand restraints, he then
refused and quickly removed his hand back into his mouth. At this
time I placed inmate King onto the floor using on that amount of
force necessary at that time. I noticed a piece of white paper exit
his mouth. Inmate King continued to be combative on the floor by
swinging closed fists. Once additional staff was able to respond,
inmate King was then placed in hand restraints. Once inmate King
was escorted from non-contact visitation to the lieutenant’s office
holding cell by responding staff I picked up the piece of paper that
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had exited inmate King’s mouth and brought it to the lieutenant’s
office. Once in the lieutenant’s officer an unknown paper
substance recovered from I/M King and then was later identified
by pharmacy staff as seven individual strips of suboxone.
Id. On February 13, 2017, Petitioner appeared before the Unit Discipline
Committee (“UDC”). (See Doc. 9-1 at 7, Committee Action). Because the
sanctions were greater than allowed at the UDC level, the UDC referred the
charge to the Discipline Hearing Officer (“DHO”), recommending “27 days loss
of GCT/30 days D/S / 60 days loss phone and commissary.” Id. During the
UDC hearing, staff member, F. Vankirk informed King of his rights at the DHO
hearing and provided him with a copy of the “Inmate Rights at Discipline
Hearing” form. (Id. at 10, Inmate Rights at Discipline Hearing).
Also on February 13, 2017, King was provided with a “Notice of
Discipline Hearing before the (DHO)” form. (Id. at 9). King requested staff
representative, Ms. McArdle. Id. He did not request any witnesses. Id.
On March 8, 2017, King appeared for a hearing before DHO, K.
Craddock. (Doc. 9-1 at 12-14). Ms. McArdle appeared on behalf of Jones.
She made the following statement: “He asked me to watch the camera in non-
contact visitation. There is no camera in non-contact visitation room.” Id. The
DHO then read aloud Section 11 of the incident report and asked Petitioner
to provide his statement. Id. King replied “Not Guilty. | never attempted to
dispose of any evidence. I was never given a direct order to give what was in
my mouth to anyone. I want the suboxone tested.” Id. He did not provide any
evidence for the DHO to consider on his behalf. Id.
In addition to the Incident Report and Investigation, the DHO also
considered memoranda from six officers, dated February 8, 2017 and a
clinical encounter of the same date, for inmate King. Id. The specific evidence
relied on to support the findings was as follows:
Your due process rights were reviewed with you by the DHO at
the time of the hearing. You stated you understood your rights,
had no documentary evidence to present, did not request any
witnesses, and did not request a staff representative to assist you
during the hearing. You indicated to the DHO you were ready to
proceed.
The DHO finds you to have committed the prohibited acts of
Possession of Drugs, Code 113, (Attempt) Destroying an Item
During a Search, Code 115A, and (Attempt) Assaulting any
Person (Minor), Code 224A, while at the Federal Correctional
Complex, West Virginia.
The DHO bases this decision on the facts presented in the body
of the written report on February 8, 2017, at approximately 7:29
A.M., in the non-contact visitation cell; Officer Ware reported that
he was conducting a visual search on your person in the non-
contact visitation cell and told you to open your mouth wide and
roll your upper and lower lip in order to visually inspect your
mouth. It was reported that at this time you had placed your left
hand into your mouth, obstructing your visual search of your
mouth. It was reported that Officer Ware then told you to remove
your left hand out of your mouth and your removed your left hand
and at this time Officer Ware saw a white piece of paper in your
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upper lip. It was reported that Officer Ware then gave you a direct
order to submit to hand restraints, you refused and quickly moved
your hand back into your mouth. It was reported that at this time
you were placed on the floor using only that amount of force
necessary at that time and Officer Ware noticed a piece of white
paper exit your mouth. It was reported that you continued to be
combative on the floor by swinging closed fists. It was reported
that once additional staff was able to respond you were then
placed in hand restraints and escorted to the holding cell in the
Lieutenant’s Office. It was reported that Officer Ware picked up
the piece of paper that had exited your mouth and brought it to
the Lieutenant’s Office and was later identified by pharmacy staff
as seven individual strips of suboxone.
You denied the charge before the DHO. You stated “Not Guilty.
I never attempted to dispose of any evidence. I was never given
a direct order to give what was in my mouth to anyone. I want the
Suboxone tested.” Although you deny the charge, Officer Ware
was clear in his written report where he had discovered the white
piece of paper in your upper lip that was later identified by a
pharmacy staff member as seven individual strips of Suboxone.
Based on the supporting documentation, and the written report,
the DHO finds you to have committed the prohibited acts of
Possession of Drugs, Code 113, (Attempt), Destroying an Item
During a Search, Code 115A, and (Attempt) Assaulting any
Person (Minor), Code 224A, and sanctioned you accordingly.
Id. The DHO sanctioned King on the Code 113 violation to forty (40) days loss
of Good Conduct Time; 100 days forfeiture of non-vested Good Conduct
Time; and one year loss of commissary. Id. On the Code 115A charge, the
DHO sanctioned King to forty (40) days loss of Good Conduct Time and thirty
(30) days disciplinary segregation. For the 224A Code violation, the DHO
5
sanctioned King to twenty-seven (27) days loss of Good Conduct Time and
one year loss of visitation. Id. The DHO documented his reasons for the
sanctions given as follows:
Possession and/or use of Narcotics and the Use/Possession of
Intoxicants in a correctional setting is a very serious violation in
that these acts have historically been a factor in producing inmate
behavior which often leads to disruptive and violent behavior.
The action/behavior on the part of any inmate destroying or
disposing of any item during a search poses a serious threat in
that it could lead to injury to the inmate as well as staff. This act
also jeopardizes the secure and orderly running of the institution
and could escalate into a confrontation between inmates and/or
staff.
Assaulting another person seriously jeopardizes the safety of that
person and disrupts the orderly running of the institution. This act
also creates a dangerous environment for responding staff and
could ultimately create a more serious incident.
The DHO disallowed this inmate’s Good Conduct Time and
forfeited Non Vested Good Conduct Time as required by his
sentencing guidelines (PLRA). The DHO imposed disciplinary
segregation, loss of visitation, and loss of commissary as
punishment for committing the prohibited act.
Id. King was advised of his appeal rights at the conclusion of the hearing. Id.
King appealed the DHO’s decision to the BOP’s Mid-Atlantic Regional
Director. (Doc. 9-1 at 15, Regional Administrative Remedy Appeal No.
899351-R1). The Regional Director reviewed the DHO report and found the
following:
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The DHO found you committed the prohibits acts based on the
greater weight of the evidence, which included the reporting
officer’s depiction of the incident in Section 11 of the incident
report. The DHO accurately and adequately explained to you in
Section V of the amended DHO report the specific evidence relied
on to find you committed the prohibited acts.
A review of the record indicates you requested your staff
representative to review video surveillance of the non-contact
visiting room. Staff became aware of the incident on February 8,
2017, and prepared the incident report that same day. You were
issued a copy of the incident report on February 12, 2017. You
do not provide, nor do we find, any evidence of this brief
procedural delay had any impact on your ability to present a
defense, or due process rights were violated in any way.
The required disciplinary procedures were substantially followed,
the evidence supports the DHO’s finding, and the sanctions were
appropriate for the offenses.
Your appeal is denied. If you are not satisfied with this response,
you may appeal to the General Counsel, Federal Bureau of
Prisons, 320 First Street, N.W., Washington, D.C. 20534, within
30 days of the date of this response.
(Doc. 9-1 at 16, Regional Administrative Remedy Appeal Response).
On August 21, 2017, King filed an appeal to the General Counsel,
arguing the following:
My whole argument was misconstrued and my issue was never
addressed. The alleged narcotics was never identified. Staff never
produced the staff member that performed the test, no photo
results or other analysis were provided. If test (Reagent kit or
other) to reveal that unknown substances. If otherwise, then staff
sends the alleged narcotics to an independent laboratory to be
tested. No photos, test results or staff member was identified,
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leaving the alleged narcotic unidentified.
(Doc. 9-1 at 18, Central Officer Administrative Remedy Appeal No. 899351-
R1).
On November 30, 2017, the National Inmate Appeals denied King’s
appeal as follow:
You appeal the March 8, 2017, decision of the Discipline Hearing
Officer (DHO) regarding incident report #2950455 in which you
were found to have committed the prohibited acts of Possess of
any Narcotics, Marijuana, Drugs, Alcohol, Intoxicants, or Related
Paraphernalia, not Prescribed for the Individuals by the Medical
Staff, Code 113, and Assaulting without Serious Injury, Code 224.
You claim the narcotic was never appropriately identified. For
relief, you request the incident report be expunged.
Our review of the disciplinary proceedings indicates compliance
with Program Statement 5270.09, Inmate Discipline Program, and
we concur with the response provided by the Regional Director.
Program Statement 5270.09, also provides that upon appeal, the
appropriate reviewing official may modify, reverse, or send back
with directions any discipline action of the Unit Discipline
Committee or DHO. The DHO’s decision was based on the
evidence detailed in Section V of the amended DHO report. Our
review reveals section V clearly states the narcotic was
appropriately identified by a staff pharmacist. We find the
determination of the DHO is reasonable and supported by the
evidence. Your Due Process rights were upheld during the
discipline process. The sanctions imposed were commensurate
to the severity level of the offense committed and in compliance
with policy.
Accordingly, your appeal is denied.
(Doc. 9-1 at 18, National Inmate Appeals Response).
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On January 2, 2018, King filed the instant petition for writ of habeas
corpus, seeking expungement of Incident Report No. 2950455 and the return
of his good conduct time, arguing that “the alleged narcotics was never
properly tested or identified” and that “there were no photos, test results or an
outside agency saying that they tested it and the staff member that identified
the alleged narcotic was never made known.” (Doc. 1, petition)
ll. 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.
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.
The Bureau of Prisons has enacted specific procedures for disciplinary
proceedings. 28 C.F.R. §541.1, et seq. Under these procedures, a staff
member charges a prisoner with committing a prohibited act by issuing an
incident report. 28 C.F.R. §541.5(a). The incident report ordinarily must be
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issued within 24 hours of the time the staff member became aware of the
prisoner’s involvement in the incident. Id. The incident is then investigated. Id.
at §541.5(b).
After the incident is investigated, the UDC reviews the incident report
and takes one of the following actions: 1) finds that the prisoner committed
the prohibited act charged and/or a similar prohibited act as reflected in the
incident report; 2) finds that the prisoner did not commit the prohibited act
charged; or 3) refers the incident report to the DHO for further review. Id. at
§541.7(a). Prohibited acts are separated into four categories based on
severity: Greatest, High, Moderate, and Low. ld. at §541.3(a). If a prisoner is
charged with a prohibited act in the Greatest or High category, the UDC
automatically refers the incident report to the DHO for further review. Id. at
§541.7(a)(4).
Under the regulations, when an incident report is referred to the DHO,
a disciplinary hearing is conducted in accordance with the procedures set
forth at 28 C.F.R. §541.8. The prisoner is entitled to notice of the charges at
least 24 hours before the hearing. Id. at §541.8(c). The prisoner is entitled to
appear at the hearing and is entitled to staff representation at the hearing. Id.
at §541.8(d) & (e). The prisoner is entitled to make a statement and to present
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documentary evidence. Id. at §541.8(f). A prisoner may request to have
witnesses appear at the hearing on his behalf, but the DHO may refuse to call
requested witnesses if they are not reasonably available, if their presence
would jeopardize institutional security, or if they would present repetitive
evidence. Id. The DHO considers all evidence presented at the hearing. Id.
The decision of the DHO must be based on at least some facts and, if there
is conflicting evidence, the decision must be based on the greater weight of
the evidence. Id. Following the hearing, the DHO must provide a written report
documenting that the prisoner was advised of his rights. Id. at §541.8(h). The
report must document the evidence relied upon by the DHO, the findings of
the DHO, the sanctions imposed by the DHO, and the reasons of the DHO for
imposing those sanctions. Id.
In the instant case it is clear from the record that King was afforded all
of the required procedural rights set forth in Wolff. To the extent that Petitioner
argues that 28 C.F.R. §541.5(a) was violated because he was not served with
the incident report within 24 hours of staff becoming aware of the incident, 28
C.F.R. §541.5(a) provides that “[t]he discipline process starts when staff
witness or reasonably believe” that an inmate has committed a prohibited act
and that an incident report will be delivered to the inmate “ordinarily” within 24
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hours of staff becoming aware of the inmate’s involvement. The Court finds
that the use the word “ordinarily” clearly allows for situations where an inmate
may not receive the incident report within 24 hours. See Scott v. Martinez,
2009 WL 790143, slip op. at *3 (M.D. Pa. Mar. 20, 2009 (Kane, C.J.) (“use of
the word ‘ordinarily’ clearly provides the BOP with some discretion”). Even if
this regulation was violated, King cannot show that his right to due process
was violated at his hearing, especially where Wolff does not require issuance
of the charge within 24 hours of the incident. Wolff only requires that an
inmate receive written notice of the charges 24 hours before a hearing. Here,
record evidence clearly demonstrates that King was timely served with re-
written incident report No. 2950455 on February 12, 2017, which was well
within the prescribed 24 hour period prior to his disciplinary hearing, held on
March 8, 2017. 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. King received a written decision setting forth the evidence relied
upon by the DHO and the rationale behind the decision, and was notified of
his right to appeal.
Since King was afforded all of his procedural rights, the only remaining
13
issue is whether there was sufficient evidence to support the decision by the
DHO. To the extent King alleges there was insufficient evidence to find he had
committed the prohibited acts, the decision of the DHO is entitled to
considerable deference by a reviewing court and the decision should be
upheld if there is “some evidence” to support the decision. In Superintendent,
Mass. Corr. Inst. v. Hill, 472 U.S. 445 (1985), the Supreme Court held that the
“some evidence” standard applies in addressing a [ ] prisoner's due process
claim. Id. at 456-57; see Thompson v. Owens, 889 F.2d 500, 501- 02 (3d Cir.
1989).
The United States Court of Appeals for the Third Circuit observed that
the standard found in 28 C.F.R. §541.17(f) (1986) was more stringent than
the “some evidence” standard. Henderson v. Carlson, 812 F.2d 874, 879 (3d
Cir. 1987). The Court concluded that the “substantial evidence” standard in
§541.17(f) (1986) was “clearly higher than any standard that the Constitution
imposes on prison disciplinary proceedings.” Id. In 2007, §541.17(f) was
amended and no longer includes the “substantial evidence” standard. 28
C.F.R. §541.17(f) (2007). Section 541.17(f) (2007) now requires that a DHO’s
decision be based on “some facts” and, if there is conflicting evidence, the
decision is based on “the greater weight of the evidence.” Id.
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A DHO need not accept what the inmate perceives to be the “best” or
most convincing or persuasive set of facts. Rather, under Hill, there need only
be “some evidence” to support the disciplinary decision. 472 U.S. at 455-56.
This standard is satisfied where “there is any evidence in the record that could
support the conclusion reached by the disciplinary board.” Id. A disciplinary
committee’s resolution of factual disputes should not be subject to review
where the standard in Hill is satisfied. Id.
In this case, the record clearly reveals the existence of documentary
evidence submitted at the hearing to allow the DHO to conclude that the
greater weight of the evidence supported a finding of guilt. In addition to the
statement provided by Petitioner, the DHO also considered the investigative
report, various memoranda and Petitioner's clinical encounter dated February
8, 2017. To the extent that Petitioner challenges the procedure in identifying
the contraband, the Court finds the professional opinion of the institution
pharmacist sufficient. In accordance with Hill, there need only be “some
evidence” to support the disciplinary decision. 472 U.S. at 455-56. In this
instance, there is “some evidence’ to support the decision of the DHO.
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
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are the sanctions available for 100-level offenses:
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).
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.
Pursuant to 28 C.F.R. §541.3, the following are the sanctions available
for 200-level offenses:
A. Recommend parole date rescission or retardation.
B. Forfeit and/or withhold earned statutory good time or
non-vested good conduct time up to 50%, or up to 60
days, whichever is less, 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 25% and 50% (14-27
days) of good conduct time credit available for year (a
good conduct time sanction may not be suspended).
C. Disciplinary segregation (up to 6 months)
D. Make monetary restitution.
E. Monetary fine.
F. Loss of privileges (e.g. visiting, telephone,
commissary, movies, recreation).
G. Change housing (quarters).
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.
III. Conclusion
For the reasons stated above, the petition for a writ of habeas corpus
will be DENIED. A separate Order will be issued.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: August 14, 2019
18-0015-01