Opinion

Hammond v. Baltazar

Court
District Court, M.D. Pennsylvania
Filed
Dec 3, 2020
Cited by
0 cases
Authority
More cited than 29.1%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

NAVARRO A. HAMMOND, :

CIVIL ACTION NO. 3:18-1236

Petitioner :

(JUDGE MANNION)

v. :

WARDEN J. BALTAZAR, :

Respondent :

MEMORANDUM

Navarro Hammond, an inmate confined in the Canaan United States

Penitentiary, Waymart, Pennsylvania, 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 Federal Correctional Institution, Cumberland (“FCI-

Cumberland”), Maryland. Id. Specifically, Petitioner alleges that the DHO did

not consider the exculpatory statement he presented during the hearing in

which he stated that the weapon, found concealed within the plumbing of the

sink in his cell did not belong to him. Id. For relief, Petitioner requests the

incident report be expunged and his good conduct time be restored. Id. The

petition is ripe for disposition and, for the reasons that follow, will be DENIED.

I. Background

On February 12, 2017 at approximately 10:25 a.m., Lt. T. Middleton,

delivered Incident Report No. 2950402 to Hammond, charging him with

Possession of a Weapon, in violation of Prohibited Act Code 104. (Doc. 4-1

at 12, Incident Report). The incident report reads as follows:

On 2-12-2017 at approx. 8:30 AM while conducting a search of

CA cell 101, I, Ofc. S. Robertson CO, discovered a homemade

weapon concealed within the plumbing of the sink. The weapon

was approx. 7 inches in length and had a formed plastic handle.

The weapon appeared to be a large, metal screw that was

sharpened to a point on one end. Housed within cell 101 at the

time the weapon was discovered were inmates Navarro

Hammond 31519-120 and Maurice Bethea 25612-057.

Id.

On February 16, 2017, Petitioner appeared before the Unit Discipline

Committee (“UDC”). (See Doc. 4-1 at 12, Committee Action). Due to the

severity of the charges, the UDC referred the charge to the Discipline

Hearing Officer (“DHO”). Id. During the UDC hearing, Case Manager, D.

Holler informed Hammond of his rights at the DHO hearing and provided him

with a copy of the “Inmate Rights at Discipline Hearing” form. (Id. at 19,

Inmate Rights at Discipline Hearing). Petitioner was also provided with a

Notice of Discipline Hearing Before the DHO, which provided him an

opportunity to request witnesses and a staff representative, both of which he

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declined. (Id. at 18). At the UDC hearing, Petitioner’s attitude was noted as

fair, and Petitioner made the following statement:

I don’t know anything about no knife. I have only been here 40

days. If it was mine I would admit to it.

Id.

On February 17, 2017, Hammond appeared for a hearing before DHO,

D. Huff. (Doc. 4-1 at 15-17). He waived his right to a staff representative and

to have witnesses. Id. Hammond denied the charges before the DHO, stating

“The report is true, but it isn’t mine”. Id.

In addition to the Incident Report and Investigation, the DHO

considered the following documentary evidence: Photograph dated 02-12-

2017, taken by R. Plauger, Lieutenant. Id.

The specific evidence relied on to support the DHO’s 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

and had no documentary evidence to present. You did not

request any witnesses, nor did you request a staff representative

to assist you at the hearing. You indicated to the DHO you were

ready to proceed.

The DHO finds you have committed the prohibited act

possession, manufacture, introduction of a weapon, Code 104.

The specific evidence relied upon to make this finding was the

written report of S. Robertson, Correctional Officer, who reported

the following:

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On 2-12-2017 at approx. 8:30AM while conducting a search of

CA cell 101, I, Ofc. S. Robertson CO, discovered a homemade

weapon concealed within the plumbing of the sink. The weapon

was approx. 7 inches in length and had a formed plastic handle.

The weapon appeared to be a large, metal screw that was

sharpened to a point on one end. Housed within cell 101 at the

time the weapon was discovered were inmates Navarro

Hammond 31519-120 and Maurice Bethea 25612-057.

Also in making this decision the DHO reviewed a digital

photograph dated 02-12-2017, taken by Lieutenant Plauger. The

DHO determined this to be a typical weapon contrived by an

inmate in a correctional institution. The instrument is

approximately 7 inches in length sharpened to a point, with a

formed plastic handle attached on opposite end.

You also admitted to the DHO that the report was true which

clearly supports the written account provided by the reporting

officer that a makeshift weapon was discovered concealed within

the plumbing of the sink, in your assigned living quarters.

However, your assertion that “It isn’t mine” was considered, but

insufficient to excuse you from the offense. The DHO believes

that even if the make shift weapon does not belong to you as you

claim the charge against you is possession of a weapon, not

ownership. Furthermore, you were informed by the DHO that you

are responsible to keep your assigned area free and clear of

contraband, and you are responsible for everything contained

within that area to include contraband concealed within the

plumbing of your sink, lockers, light fixtures, bunk frames, etc.

You were also informed of this upon your arrival at FCI

Cumberland, during initial in processing screening where you

were issued a A&O Handbook, which details this information.

In addition, in this case neither you nor your cellmate claimed

ownership of the makeshift weapon that was discovered

concealed within the plumbing of your sink, which is positioned

in an area of the cell that you both have equal access to.

Therefore, the rule of constructive possession applies. The

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concept is that every inmate assigned to a particular area is

responsible for objects found in the common area unless

someone admits responsibility. This concept is necessary to

keep inmate from evading responsibility for their acts by hiding

contraband in common areas which are somewhat under their

control. As no one assigned to this living space has admitted they

were the party responsible for the weapon, the DHO applies the

concept of constructive possession and finds the occupants of

C-A Unit, Cell 101 equally responsible for the weapon discovered

by the reporting officer.

Therefore, because the greater weight of evidence presented

showed that you did in fact possess a weapon by having a

weapon concealed in the plumbing of the sink in your assigned

living quarters, the DHO concludes that the charge, possession,

manufacture or introduction of a weapon, Code 104, is

appropriate and warranted.

Id. The DHO sanctioned Hammond on the Code 104 violation to forty-one

(41) days loss of Good Conduct Time; seven (7) days disciplinary

segregation; and 180 days loss of commissary and MP3 player, thru 8-15-

2017. Id. The DHO documented his reasons for the sanctions given as

follows:

The action/behavior on the part of any inmate to possess,

manufacture, or introduce a hazardous tool into any correctional

institution threatens the safety and security, not only of the

inmate involved, but that of the entire institution. Possession of a

weapon/sharpened instrument and possession of anything not

authorized will not be tolerated in the correctional environment.

It can have extremely serious repercussions for both staff and

inmates since it tends to result in further disruptive and violent

behaviors.

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The DHO disallowed Good Time for this act in order to meet this

inmates sentence requirements, (PLRA). The DHO imposed the

sanctions of disciplinary segregation, loss of commissary, and

MP3 player privileges as punishment for committing the

prohibited act and to make you accountable for your actions.

Id. Hammond was advised of his appeal rights at the conclusion of the

hearing. Id.

On June 18, 2018, Hammond filed the instant petition for writ of habeas

corpus, seeking expungement of Incident Report No. 2950402 and the return

of his good conduct time, arguing that the DHO never took into consideration

the exculpatory evidence that the “weapon in question was rusty, which

clearly reflects that said weapon may have been concealed in the plumbing

of the sink before Petitioner arrived at FCI Cumberland” and that it did not

belong to Petitioner. (Doc. 1, petition)

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

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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

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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

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. Id. 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).

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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 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 Hammond was

afforded all of the required procedural rights set forth in Wolff. He received

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written notice of the disciplinary charges at least twenty-four hours prior to

the hearing; he appeared at the hearing and made a statement refuting the

charges; he was given the right to a staff representative, an opportunity to

present witnesses and provide documentary evidence (though he chose not

to do so); and he was given a written statement explaining the DHO’s

decision. See Wolff, 418 U.S. at 564–66.

To the extent that Petitioner claims that the DHO did not consider that

the weapon in question was rusty and could have been there before

Hammond arrived at FCI-Cumberland, such a claim raises a challenge the

sufficiency of the evidence. The DHO, however, explained in his findings

that, regardless of ownership, Petitioner was found guilty of constructive

possession, because the weapon was found in his cell and neither cellmate

claimed ownership. The United States Court of Appeals for the Third Circuit,

however, has upheld the BOP’s application of the constructive possession

policy in the conduct of prison disciplinary proceedings. See Denny v.

Schultz, 708 F.3d 140, 145-47 (3d Cir. 2013). Thus, the Denny decision

forecloses Hammond’s argument that there was not “some evidence” to

support the DHO’s conclusion because the weapon was found in his cell.

In addition to finding that there was some evidence to support the

DHO’s finding of guilt, the Court also finds that all sanctions imposed by the

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DHO were within the limits of 28 C.F.R. §541.3. Petitioner was found guilty

of a 100-level, greatest severity level prohibited act. Pursuant to 28 C.F.R.

§541.3, the following 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.

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.

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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: December 3, 2020

18-1236-01

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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