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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