Caver v. Finley

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CALVIN CAVER, :

Petitioner, :

: No. 1:19-cv-1767

v. :

: (Judge Rambo)

SCOTT FINLEY, :

Respondent. :

MEMORANDUM

On October 9, 2019, pro se Petitioner Calvin Caver (“Caver”), who is

currently confined at the Federal Correctional Institution Schuylkill in Minersville,

Pennsylvania (“FCI Schuylkill”), initiated the above-captioned action by filing a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1.)

Caver challenges the decision of a Disciplinary Hearing Officer (“DHO”) who found

him guilty of a violation of Code 113, possession of any narcotics not prescribed for

the individual by medical staff. (Id.) After Caver paid the requisite filing fee, the

Court directed Respondent to show cause why Caver should not receive the relief he

seeks. (Doc. No. 4.) Respondent filed a response on November 18, 2019. (Doc.

No. 6.) Caver filed his traverse on December 2, 2019. (Doc. No. 7.) Accordingly,

his § 2241 petition is ripe for disposition. For the following reasons, Caver’s § 2241

petition will be denied.

I. BACKGROUND

On March 27, 2019, at approximately 7:15 p.m., Officer Mazur conducted a

random search of cell 217, Caver’s cell, in Unit 2A. (Doc. No. 6-2 at 7-8, 7, 15, 27.)

Officer Mazur located two (2) square pieces of paper, measuring two (2) inches by

two (2) inches, suspected to have been sprayed, hidden in the cap of a commissary

medication bottle in Caver’s secured locker. (Id. at 7-8, 11, 19-22, 23.) In his

memorandum, Officer Mazur noted that the paper was white. (Id. at 19.)

On March 28, 2019, after testing results indicated that the paper had tested

positive for amphetamines, SIS Technician R. Price completed Incident Report

3239022, charging Caver with a violation of Code 113, possession of any narcotics

not prescribed to the individual by medical staff. (Id. at 11.) In the Incident Report,

Officer Price described the paper as “light blue card stock” with “grid lines along

the edges of the squares drawn with a blue pen.” (Id.) A copy of the Incident Report

was delivered to Caver that same day. (Id.) Caver was advised of his rights,

including his right to remain silent. (Id. at 12.) Caver indicated that he understood

his rights and stated: “My celli had nothing to do with that. It was found in my

locker. It is my responsibility.” (Id.)

On April 3, 2019, Caver appeared before the Unit Discipline Committee

(“UDC”). (Id. at 11.) The UDC referred the Incident Report to the DHO for further

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proceedings based on the seriousness of the offense. (Id.) Caver signed an

acknowledgment of his receipt of the Inmate Rights at Discipline Hearing form and

Notice of Discipline Hearing Before the DHO and indicated that he did not want a

staff representative and that he had no witnesses he wished to call on his behalf. (Id.

at 13-14.) Caver advised, however, that he would be submitting a written statement.

(Id. at 11.) In this statement, Caver took issue with Officer Price issuing the Incident

Report, suggested that other inmates could be responsible because they had

previously placed contraband in his cell, and requested that Officer Mazur appear as

a witness. (Id. at 7, 15-31.)

On April 9, 2019, Caver appeared before the DHO. (Id. at 5.) Caver

submitted another written statement, alleging that the UDC had refused to consider

whether he wished to have a staff representative or witnesses appear on his behalf.

(Id. at 6-7, 17-18.) At the DHO hearing, Caver waived his right to a staff

representative but requested to call Officer Mazur as a witness. (Id. at 5, 7.) The

DHO denied Caver’s request to cross-examine Officer Mazur but did consider

Officer Mazur’s memorandum. (Id. at 7.)

The DHO found the charge of Code 113 to be supported by the greater weight

of the evidence. (Id. at 7-9.) In doing so, the DHO considered the Incident Report,

Officer Mazur’s memorandum, photographs of the contraband found in Caver’s

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secured locker, and the NIK test results indicating that the paper tested positive for

amphetamines. (Id.) The DHO assigned greater weight to the reporting officer’s

written statement than to Caver’s claim that he was not aware that the narcotics were

in his locker. (Id. at 8.) The DHO gave “very little weight” to Caver’s claim that

other inmates placed the narcotics in his locker, noting that, when asked, Caver was

“unwilling to inform the DHO who [he] suspected” had done so. (Id.) The DHO

also rejected Caver’s arguments that Officer Price should not have written the

Incident Report and that due process was not satisfied because his unit team did not

conduct the UDC hearing. (Id. at 8-9.)

The DHO sanctioned Caver with disallowance of forty-one (41) days of good

conduct time, thirty (30) days of disciplinary segregation, and six (6) months’ loss

of commissary, telephone, and visiting privileges. (Id. at 9.) The DHO issued his

report on April 30, 2019, and a copy was delivered to Caver on May 1, 2019. (Id. at

10.) Caver subsequently exhausted his administrative appeals regarding this

Incident Report. (Doc. No. 6 at 6 n.1.)

Caver then filed the instant § 2241 petition. In his petition, Caver argues that

his due process rights were violated because: (1) the DHO did not give “meaningful

consideration” to his exculpatory position that other inmates placed the narcotics in

his locker because he had previously found a USB cord and Allen tool in his cell and

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that these items had been placed there by other inmates; (2) the DHO suppressed

favorable evidence in the form of Officer Mazur’s memorandum; and (3) the DHO

denied Caver’s request to cross-examine Officer Mazur regarding his memorandum.

(Doc. No. 1 at 5-11.) As relief, Caver requests that the Court hold a hearing and

then void the DHO’s decision and expunge the Incident Report. (Id. at 11.)

II. 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 has held that that there can be a liberty interest at

stake in disciplinary proceedings in which an inmate loses good conduct time. Id.

at 557. Because Caver’s sanctions included the loss of good conduct time, he has

identified a liberty interest.

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

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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 about 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, 455-56 (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 Hill standard is minimal and does not require examination of the

entire record, an independent analysis of the credibility of the witnesses, or even a

weighing of the evidence. See Thompson v. Owens, 899 F.2d 500, 501-502 (3d Cir.

1989).

The BOP’s inmate disciplinary procedures are codified at 28 C.F.R. § 541, 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).

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Pursuant to these 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. § 541.5. Under the regulations, an inmate “ordinarily

receives[s] the incident report within 24 hours of staff becoming aware of . . .

involvement in the incident.” Id. § 541.5(a) (emphasis added). The incident is then

referred to the UDC for an initial review pursuant to § 541.7.

The UDC review/hearing is “ordinarily [held] within five work days after [the

incident report] is issued” and does not include the initial day staff learns of the

incident, weekends or holidays. Id. § 541.7(c). If the UDC finds that a prisoner has

committed a prohibited act, it may impose any of the available sanctions set forth in

28 C.F.R. § 541.3 (Tables 1 and 2) except loss of good conduct time, disciplinary

segregation, or monetary fine. Id. 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 DHO for a hearing.

Id.

A DHO “will only conduct a hearing on the incident report if referred by the

UDC.” 28 C.F.R. § 541.8. An inmate will receive written notice of the charges 24

hours before the DHO hearing unless the inmate waives the notice requirement in

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which case the DHO can conduct the hearing sooner. Id. The inmate is permitted

to have a staff representative at the hearing and entitled to make a statement and

present documentary evidence. Id. After the hearing, the DHO will either: (1) find

the inmate committed the prohibited act or similar one described in the incident

report; (2) find the inmate did not commit the prohibited act charged; or (3) refer the

incident report back for further investigation, review and disposition. Id. If an

inmate is found to have committed a prohibited act, the DHO can impose any of the

available sanctions listed in Table 1 and 2 of § 541.3. Id. Finally, the written report

or decision of the DHO will contain the following: (1) whether the inmate was

advised of his or her rights during the proceedings; (2) the evidence relied on by the

DHO; (3) the DHO’s finding of guilt or innocence; (4) the sanctions imposed; and

(5) the reasons for the sanctions imposed. Id.

A. Caver Received His Due Process Rights

Contrary to Caver’s arguments, he received his procedural due process rights

under Wolff and the BOP regulations. The record reflects that Caver received a copy

of the Incident Report on March 28, 2019, and the hearing before the DHO was held

on April 9, 2019. (Doc. No. 6-2 at 5, 11.) Caver chose to proceed without a staff

representative. (Id. at 5, 7.) He received a copy of the DHO’s written decision,

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which included a review of the evidence relied upon and the rationale behind the

disciplinary action, on May 1, 2019. (Id. at 10.)

In his § 2241 petition, Caver suggests that his due process rights were violated

when the DHO suppressed exculpatory evidence in the form of Officer Mazur’s

memorandum, which stated that the confiscated paper was white, and when the DHO

denied his request to have Officer Mazur appear as a witness. (Doc. No. 1 at 5-11.)

With respect to his claim regarding the suppression of exculpatory evidence, the

United States Court of Appeals for the Third Circuit has noted that the “[United

States Court of Appeals for the] Seventh Circuit . . . has held that the rule of Brady

v. Maryland requiring the disclosure of material exculpatory evidence applies to

prison disciplinary proceedings.” Donahue v. Grondolsky, 398 F. App’x 767, 772

(3d Cir. 2010) (citing Chavis v. Rowe, 643 F.2d 1281, 1285-86 (7th Cir. 1981)). As

an initial matter, the record reflects that the DHO did consider Officer Mazur’s

memorandum. In any event, the discrepancy regarding the color of the paper is not

material exculpatory evidence. Caver does not dispute that the photographs of the

allergy pill bottle and the paper found within, which tested positive for

amphetamines, was found in his locker. Moreover, he does not dispute the chain of

custody log, which reflects that the allergy pill bottle and paper were passed from

Officer Mazur, to Officer Tomlinson for placement in the overnight drop box, to

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Officer Price for testing. (Doc. No. 6-2 at 27.) Thus, Caver’s claim that exculpatory

evidence was suppressed lacks merit.

Caver also suggests that his due process rights were violated when the DHO

refused to allow Officer Mazur to appear as a witness. Inmates, however, do not

have an “unqualified right to call witnesses.” Wolff, 418 U.S. at 566. While not

required, “it would be useful for the [DHO] to state its reason for refusing to call a

witness, whether it be for irrelevance, lack of necessity, or the hazards presented in

individual cases.” Id. Here, the DHO denied Caver’s request to have Officer Mazur

appear as a witness because “his account of the events of the incident are included

in his supporting memorandum.” (Doc. No. 6-2 at 7.) Moreover, even if Officer

Mazur had appeared, the DHO would not have been required to permit Caver to

cross-examine him. See Guerrero v. Recktenwald, 542 F. App’x 161, 164 (3d Cir.

2013). The Court, therefore, concludes that the DHO’s refusal to call Officer Mazur

did not deprive Caver of his right to due process. See Kenney v. Lewisburg, 640 F.

App’x 136, 139 (3d Cir. 2016) (upholding district court’s conclusion that failure to

call an officer as a witness did not violate due process because the DHO stated that

the officer had documented his eyewitness account in a memorandum and would

have been an adverse witness). For these reasons, the Court finds that Caver

received all the due process procedures to which he was entitled.

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B. The DHO’s Decision Was Based on Sufficient Evidence

With respect to the sufficiency of the evidence, Respondent has attached to

his response the Incident Report, the DHO Report, Caver’s written statements, the

photographs of the recovered narcotics, Officer Mazur’s memorandum, and the

chain of custody log. (Doc. No. 6-2.) These documents unequivocally establish that

there was some evidence supporting the DHO’s decision.

The DHO stated the following in his decision finding Caver guilty of Code

113, possession of narcotics not prescribed for the individual by medical staff:

The DHO finds you committed the prohibited act code 113,

Possession of any narcotics, while incarcerated at FCI Schuylkill on

03/28/2019, at approximately 11:05 AM, when staff discovered

sprayed paper that was discovered in your secured locker tested positive

for the presence of narcotic substance amphetamines.

The DHO relied on the written report of P. Price, SIS Technician,

wherein he reports the following: On March 28, 2019, at approximately

11:00 AM, I tested suspected sprayed paper that was recovered by

Correctional Officer M. Mazur on March 27, 2019 at approximately

7:15 PM. Mazur discovered the items during a random search of cell

217 in unit 2A. Specifically, during the search, Mazur recovered two

2.0” x 2.0” square pieces of suspected sprayed paper inside the secured

locker of inmate Caver, Calvin, Reg. No. 54496-060. Inmate Caver and

inmate [redacted] were assigned to cell 217 in unit 2A at the time of the

search. The two pieces of suspected sprayed paper Officer Mazur

found were concealed inside a commissary issued medication bottle

cap. The cap was discovered on a shelf inside the secured locker, with

mail that documents inmate Caver’s name and register number. The

two square pieces of suspected sprayed paper consisted of light blue

card stock, and had grid lines along the edges of the squares drawn with

a blue pen. These grid lines permit the suspected sprayed paper to be

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cut equally for potential distribution. I tested the substance with NIK

test kit A, resulting in a positive test for amphetamine (orange to brown

color). I proceeded to test U, resulting in a positive test for

amphetamine (burgundy color). This combination of results provides

a positive identification of amphetamines being present in the tested

time.

The DHO also relied on the memorandum of the officer who

discovered your narcotics, and the photographs of the narcotics you

possessed.

You denied the charge, and presented as your defense that you

are “responsible and your cellmate is not responsible”; that the

reporting officer should not have written the incident report because he

was not present at the time . . . the narcotics were discovered in your

locker; that you were not aware the narcotics were in your locker; that

other inmates placed the narcotics in your locker; that you could not

determine if you locked your locker; that your unit team did not conduct

the UDC; that the UDC did not inquire if you wanted witnesses or a

staff representative; that your custody classification “points were going

to drop”, and; that the incident report should be expunged.

The DHO gave greater weight to the reporting officer’s written

statement that sprayed paper that was discovered in your secured locker

tested positive for the presence of the narcotic substance amphetamines,

than to your claim that you were not aware the narcotics were in your

locker. This is based on the fact the reporting officer was very specific

concerning your misconduct in section 11 of the incident report.

Information in section 11 of the incident report provides you notice you

had any narcotics under your dominion, and therefore in your control.

Your claim that you were not aware the narcotics were in your

locker was found without merit. The DHO considers this information

to be less credible than to which the greater weight is given in this case

for the following reasons: You submitted contradictory verbal

testimony where you informed the DHO you are “responsible and your

cellmate is not responsible.” Your locker was secured prior to the

search, leaving no evidence to convince this DHO this contraband

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belonged to anyone other than yourself. You concealed your narcotics

inside a medicine bottle cap which demonstrates your determination for

your narcotics not to be easily discovered by staff.

Your claim that other inmates placed the narcotics in your locker

was given very little weight in your defense. Particularly, in your

written statement you stated you “battled with quarrels with some

inmates known for such devious acts”, but when the DHO inquired who

these inmates were, you were unwilling to inform the DHO who you

suspected placed the narcotics in your locker. What was discovered

hidden in the bottle cap in your locker was a relatively large, valuable

amount of narcotics. This information discounts your claim other

inmates placed these valuable narcotics in your locker. That you hid

the narcotics in the bottle cap demonstrates you coveted these narcotics

as your own, you did not wish for them to be discovered, and discounts

your claim someone else put the narcotics in your locker. You informed

the DHO that you could not determine if you locked your locker, but

the DHO gives greater weight of the evidence to the reporting officer’s

claim that your locker was secured at the time your narcotics were

discovered therein.

Your claim that the reporting officer should not have written the

incident report in no way discounts your culpability [of] your

commission of the prohibited act. The reporting officer was the staff

member who became aware of your misconduct; he appropriately wrote

the incident report. The reporting officer effectively annotated that he

reasonably believed you possessed the narcotics in your secured locker.

The description of the incident contains all facts known by the reporting

officer, to include physical evidence where he arrived to his conclusion

you possessed the narcotics. The description of the incident provides

you with the specific evidence the reporting officer relied upon, and

charged you appropriately based on the evidence, in order for you to

prepare a defense. Your claim the reporting officer should not have

written the incident report, is recognized by the DHO as your misguided

attempt to justify a false due process violation claim, when such a

violation does not exist.

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The DHO has considered your statement that your unit team did

not conduct the UDC hearing, but informed you a UDC certified staff

member held the initial review of the incident report as required by

policy, before the report was to be referred to the DHO. No requirement

exists that your assigned unit team conduct this initial review. Your

claim that your unit team did not conduct the UDC hearing is

recognized by the DHO as your misguided attempt to justify a false due

process violation claim, when such a claim does not exist.

No information was discovered to support your claim that the

UDC did not inquire if you wanted witnesses or a staff representative.

The Notice of Discipline Hearing Before the DHO form verifies you

signed the form stating you did not request a staff representative or

witnesses. Suspiciously, you admitted submitted a written statement to

the UDC, that you prepared prior to the UDC hearing, where you did

request a staff witness. Moreover, you submitted an additional written

statement at the time of the DHO hearing citing the UDC did not

consider your request for a staff representative or a witness. At the time

of the DHO hearing, the DHO asked you if you wished to have a staff

representative present for the DHO hearing. You informed the DHO

you did not wish to have a staff representative present. At the time of

the DHO hearing, you reiterated you wished only to call officer Mazur

as a witness. The DHO denied your request to have officer Mazur

appear to provide a witness statement, as his account of the events of

the incident are included in his supporting memorandum, and in section

11 of the incident report. Your suspicious claim you were denied a staff

representative of a witness, is recognized by the DHO as your

misguided attempt to justify a false due process violation claim, when

such a violation does not exist.

The DHO considered your testimony concerning these

unsubstantiated due process violation claims, and is not convinced you

are being honest or forthright in your testimony. Your unsubstantiated

due process violation claims are not relevant to your commission of the

prohibited act as documented in section 11 of the incident report, and

do not discount your culpability in your commission of the prohibited

act in this case.

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Your claim that your custody classification “points were going

to drop” prior to your receipt of this incident report, is interpreted as

your complaint the incident report will negatively affect your

consideration for a lesser security custody classification. Your

statement is considered by the DHO as your motivation to be less than

honest in your testimony to the DHO. The DHO recognizes if he

sustains this incident report it would negatively affect your

consideration for a lesser security custody classification score. The

DHO notes that if he expunged the charge, you would stand to receive

the lesser security custody classification. The DHO feels you provided

the DHO with inaccurate information, you convoluted the

circumstances in the report, and you erroneously suggested various due

process violations occurred, all in order for you to not accept full

responsibility for your actions.

The DHO concludes you are responsible for your actions. The

substance of the facts provided by the staff members in this case are

strong. You have presented very little evidence to convince this DHO

you did not commit the prohibited act. Your contention about not

having knowledge of the contraband discovered in your living quarter

was found without merit. Since you are assigned to the cell, you alone

are responsible for keeping your living quarter free of contraband.

Furthermore, the reporting officer clearly stated that your locker was

secured prior to his search, leaving no evidence to convince this DHO

this contraband belonged to anyone other than yourself. Given the

greater weight of this evidence, no information was discovered to

support your claim this incident report should be expunged.

Based on the reporting officer’s statement that staff discovered

sprayed paper in your secured locker that tested positive for the

presence of the narcotic substance amphetamines, the supporting

statement by the staff member who discovered your narcotics in your

secured locker, and the pictures of the items found in your living

quarters, the DHO finds the greater weight of the evidence supports you

did violate Code 113, Possession of any narcotics, of the Inmate

Discipline Policy.

(Doc. No. 6-2 at 7-9.) Moreover, the DHO explained the imposed sanctions, stating:

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Possession of any narcotics while in a correctional institution

inherently jeopardizes the security and good order of the institution.

The rationale for the sanctions imposed in this case, therefore, is to

punish the inmate for his misconduct, which is viewed as having an

adverse effect on the security and orderly operation of the institution,

as well as to deter future misconduct. Disciplinary segregation is

imposed as punishment for the misconduct. Disallowed Good Conduct

Time is imposed to demonstrate that engaging in misconduct will

prolong inmate Caver’s period of incarceration. Loss of commissary,

telephone and visiting privileges are imposed to demonstrate that

engaging in misconduct will result in the loss of pleasurable privileges

while incarcerated.

(Id. at 10.)

Caver appears to suggest that the evidence was insufficient to support the

DHO’s finding, arguing that the DHO failed to give “meaningful consideration” to

his defense that other inmates placed the narcotics in his cell because he had

previously found other contraband, such as a USB cord and an Allen tool, in his cell.

(Doc. No. 1 at 5-7.) Caver argues that other inmates had placed those items in his

cell, thus suggesting that other inmates were responsible for placing the narcotics

there. However, when an inmate challenges the sufficiency of the evidence

supporting the DHO’s decision, “the ‘some evidence’ standard does not require . . .

independent assessment of the credibility of witnesses or weighing of the evidence.”

Speight v. Minor, 245 F. App’x 213, 216 (3d Cir. 2007) (quoting Hill, 472 U.S. at

455-56). Moreover, as noted above, the DHO considered Caver’s claim that he had

previously “battled with quarrels with some inmates known for such devious acts”

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and noted that, when asked, Caver refused to provide names of such inmates. (Doc.

No. 6-2 at 8.) Thus, Caver came forward with no evidence to support his statement

that he had been “set up” by other inmates. The fact that the DHO failed to refer to

Caver’s defense regarding the USB cord and Allen tool previously found in his cell

does not rise to the level of a due process violation. See Pappas v. Allenwood, 548

F. App’x 31, 34 (3d Cir. 2013) (noting that “the fact that [an inmate] as not permitted

to assert [a] defense does not rise to the level of a constitutional violation”); see also

Donahue v. Grondolsky, 398 F. App’x 767, 772 (3d Cir. 2010) (noting that courts

are not “required to re-weigh the evidence, or re-assess the credibility of [a

petitioner’s] defense”). Contrary to Caver’s suggestion, “some evidence” supports

the DHO’s conclusion that he was guilty of a violation of Code 113. See Denny v.

Schultz, 708 F.3d 140, 145 (3d Cir. 2013) (noting that the Court “need only find that

the [Hearing Officer’s] decision had ‘some basis in fact’ in order to affirm the

decision as comporting with the Due Process Clause”). Accordingly, the Court will

deny his § 2241 petition.

III. CONCLUSION

For the foregoing reasons, the Court concludes that Caver was accorded all of

his due process rights under Wolff and the BOP regulations, and that there was some

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evidence supporting the DHO’s decision. Accordingly, Caver’s § 2241 petition

(Doc. No. 1) will be denied. An appropriate Order follows.

s/Sylvia H. Rambo

Sylvia H. Rambo

United States District Judge

Dated: December 4, 2019

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