The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL GONZALEZ, Civil No. 3:21-cv-449
- Petitioner . (Judge Mariani)
FILED
V. SCRANTON
WARDEN J.L. JAMISON, APR 26 2024
Respondent . Per □□□
MEMORANDUM
Presently pending before the Court is a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 (Doc. 1), filed by Petitioner Michael Gonzalez (“Gonzalez”), an inmate
confined at the Federal Correctional Institution, Allenwood, in White Deer, Pennsylvania.
Gonzalez contends that his due process rights were violated in the context of a disciplinary
hearing held at the Federal Correctional Institution, Fort Dix, New Jersey. (/d.). For the
reasons set forth below, the Court will deny the petition.
I. Background
On January 23, 2020, Gonzalez was charged in incident report number 3356143,
with possession of a hazardous tool—cell phone, a code 108 violation. (Doc. 1-1, p. 11).
Gonzalez contends that the denials of his administrative appeals indicated that the cell
phone and battery were found inside his locker; however, the incident report states that the
cell phone and battery were in a case of soda under his locker. (Doc. 1, p. 10). For relief,
Gonzalez requests that the Court expunge the incident report and restore the loss of good
conduct time. (/d. at p. 7).
il. Discussion
On January 23, 2020, a staff member at FCI-Fort Dix searched Room 337 in Unit
9812 and discovered a blue/silver cell phone and a Samsung cell phone battery hidden in a
12 pack of Ginger Ale soda under a locker. (Doc. 6-1, p. 8, Discipline Hearing Officer
(“DHO”) Report). According to Sentry, TruScope and personal property found in the locker,
the locker was assigned to inmate Michael Gonzalez, Register Number 48306-066. (Id.).
On January 23, 2020, incident report 3356143 was served on Gonzalez charging him with
possession of a hazardous tool—cell phone. (/d. at p. 10, Incident Report). As part of the
investigation, Gonzalez was advised of his rights and stated, “It wasn’t mine.” (Id. at p. 11,
§§ 23-24).
On January 26, 2020, Gonzalez appeared before the Unit Discipline Committee
(“UDC”) for a hearing. (/d. at p. 10, §§ 17-21). At the hearing, Gonzalez again stated that
the confiscated items did not belong to him. (/d. at p. 13, § 17). Due to the severity of the
offense, the UDC referred the incident report to the DHO with a recommendation that
greater sanctions be imposed. (/d. at p. 13, §§ 18-20).
On January 26, 2020, a staff member informed Gonzalez of his rights at the DHO
hearing and provided him with a copy of the “Inmate Rights at Discipline Hearing” form.
(Doc. 6-1, pp. 17-18, Inmate Rights at Discipline Hearing). Gonzalez was also provided
with a “Notice of Discipline Hearing before the Discipline Hearing Officer (DHO)” form.
(Doc. 6-1, p. 19, Notice of Discipline Hearing before the Discipline Hearing Officer (DHO)).
Gonzalez signed the DHO form, did not request representation by a staff member, and did
not elect to call witnesses on his behalf. (/d.).
On February 20, 2020, a DHO hearing was conducted. (Doc. 6-1, pp. 6-9). During
the February 20, 2020 hearing, the DHO confirmed that Gonzalez received advanced
written notice of the charges, that he had been advised of his rights before the DHO, and
that Gonzalez waived his right to staff representation and did not request to call any
witnesses. (/d. at p. 6, §§ I-IIl). Gonzalez indicated that he understood his rights. (/d.).
The DHO read following written statement of the reporting officer:
On January 23, 2020, |, Officer K. Rosario, was posted as a West Compound
Officer. At approximately 2:45 pm, |, Officer K. Rosario, began a search of
Room 337 in Unit 5812. During my search of locker 2 Lower in room 337 of
9812, | discovered one (1) blue/silver cell phone and (1) Samsung cell phone
battery hidden in a 12 pack of Ginger Ale soda cans under the locker.
According to Sentry, TruScope and personal property found in the locker, the
locker is assigned to inmate Michael Gonzalez Reg # 48306-066A.
[Alccording to the A&O Handbook page 40 # 4 “It is your responsibility not to
waste food, follow the laundry and shower schedule, to maintain neat and
clean living quarters, to keep your area free of contraband and to seek
medical and dental care as you may need it.” The contraband was brought to
the Lieutenant's Office for processing.
(Id. at p. 8, § V). Gonzalez stated that the incident report was false and that “[t]he phone
wasn't mine.” (/d. at p. 6, § Ill). However, the DHO found that Gonzalez was unable to
provide any significant or credible evidence or witnesses to corroborate his claims that the
reporting staff member was not being truthful in the incident report, where Gonzalez was
identified as being in possession of the cellular phone and battery found under his assigned
locker. (/d. at p. 8, § V). The DHO noted that, “[tlo possess means to have on one’s
person/under one’s dominion or control of hard contraband identified.” (/d.). The DHO
ultimately concluded that Gonzalez was not being truthful. (/d.).
in reaching his decision, the DHO considered Gonzalez’s statement, the reporting
officer's incident report, photographs of the contraband, and the chain of custody log. (/d. at
pp. 8-9). After consideration of the evidence, the DHO found that Gonzalez committed the
code 108 offense of possession of a hazardous tool—cell phone. (fd. at pp. 7-8, §§ IV, V).
The DHO sanctioned Gonzalez with 41 days loss of good conduct time, 60 days of
disciplinary segregation (suspended), and loss of commissary privileges for 180 days. (/d.
at p. 8, § VI). At the conclusion of the hearing, the DHO provided a copy of the report to
Gonzalez and advised him of his appeal rights. (/d. at p. 9, § VIll).
Gonzalez’s sanctions included the loss of good conduct time; therefore, he has
identified a liberty interest in this matter. 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. /d.
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, 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 Bureau of Prisons’ inmate disciplinary procedures are codified at 28 C.F.R. §
541, ef 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). 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. The
incident is then referred to the UDC for an initial hearing pursuant to § 541.7. The UDC “will
ordinarily review the incident report within five work days after it is issued, not counting the
day it was issued, weekends, and holidays.” 28 C.F.R. § 541.7(c). This period may be
extended if the incident is being investigated for possible criminal prosecution. 28 C.F.R. §
941.4(c). If the UDC finds that a prisoner has committed a prohibited act, it may impose
minor sanctions. 28 C.F.R. § 541.7(f). 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 disciplinary hearing officer for
hearing. 28 C.F.R. § 541.7(a), (g). The inmate will receive written notice of the charge(s)
against him at least twenty-four hours before the DHO’s hearing, however the inmate may
waive this requirement. 28 C.F.R. § 541.8(c). The inmate is entitled to have a staff
representative, appear at the hearing, make a statement, present documentary evidence,
and present witnesses. 28 C.F.R. §§ 541.8(d), (e), (f}. Following the hearing, the inmate
will receive a written copy of the DHO’s decision. 28 C.F.R. § 541.8(h).
In the matter sub judice, it is clear that Gonzalez was afforded all of the required
procedural rights set forth in Wolff. He received advanced written notice of the charge and
incident report on January 23, 2020. Gonzalez appeared before the UDC and was allowed
to provide a statement on his own behalf. He was properly informed of his rights before the
DHO hearing, as well as given the opportunity to make a statement, present documentary
evidence, have a staff representative, and to present witnesses. At the conclusion of the
hearing, Gonzalez received a written decision setting forth the evidence relied upon by the
DHO and the rationale behind the decision. Gonzalez was also notified of his right to
appeal.
Since Gonzalez was afforded all of his procedural rights, the only remaining issue is
whether there was “some evidence” to support the decision by the DHO. The record clearly
reveals the existence of evidence to allow the DHO to conclude that Gonzalez was guilty of
the charge. The DHO determined that the greater weight of the evidence supported the
finding that Gonzalez violated code 108. In reaching his decision, the DHO considered the
reporting officer’s incident report, photographs of the contraband, and Gonzalez’s
statements. Based upon this evidence as relied upon by the DHO, the Court finds that
Gonzalez’s due process rights were not violated by the determination of the DHO. See,
e.g., Denny v. Schultz, 708 F.3d 140, 145 (3d Cir. 2013) (courts have “uniformly held that
the discovery of contraband in a shared cell constitutes ‘some evidence’ of possession
sufficient to uphold a prison disciplinary sanction against each inmate in the cell, including
depriving that inmate of his or her liberty interest in good time credits”).
Finally, the Court finds that all sanctions imposed by the DHO were within the limits
of 28 C.F.R. § 541, et seq. Gonzalez was found guilty of a 100-level, greatest severity
prohibited act. Pursuant to 28 C.F.R. § 541.3, the following are the sanctions available for
100-level prohibited acts:
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).
HH. 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.
28 C.F.R. § 541.3 (Table 1).
Thus, the sanctions imposed by the DHO in this instance were consistent with the
severity level of the prohibited act and within the maximum available to the DHO.
Accordingly, the petition will be denied as to incident report number 3356143.
ill. Conclusion
Based on the foregoing, the Court will deny the petition for writ of habeas corpus. A
separate Order shall issue.
PSV auay
Robert D. Mariani
United States District Judge
Dated: April □□ , 2024