Marino v. Howard

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

VINCENT MICHAEL MARINO , :

CIVIL ACTION NO. 3:20-1456

Petitioner :

(JUDGE MANNION)

V. :

WARDEN HOWARD, :

Respondent :

MEMORANDUM

Vincent Michael Marino, an inmate currently confined in the Allenwood

Federal Correctional Institution, White Deer, Pennsylvania, filed the above

captioned petition for writ of habeas corpus, pursuant to 28 U.S.C. §2241.

(Doc. 1). Marino challenges two prison disciplinary actions he received while

confined at the Federal Correctional Institution, Fort Dix, (“FCI-Fort Dix’),

New Jersey. Id. For relief, Petitioner seeks the following: (1) a DHO

rehearing; (2) restoration of his good conduct time and commissary

privileges; (3) a district court order for alleged “exculpatory material

evidence” to be turned over to Marino; or (4) for the court to review the

alleged exculpatory evidence. Id. A response (Doc. 18) and traverse (Doc.

25) having been filed, the petition is ripe for disposition. For the reasons that

follow, the Court will deny the petition for writ of habeas corpus.

i. Factual Background

a. Incident Report No. 3254662

On May 9, 2019, at approximately 5:12 p.m., while confined at FCI-

Fort Dix, W. Decker, delivered Incident Report No. 3254662 to Marino,

charging him with Possession of a hazardous tool, a Code 108 violation.

(Doc. 1 at 10, Incident Report). The incident report reads as follows:

On 05/09/2019 at approximately 10:00 am while doing a room

inspection in room 319, upon searching secured locker 4 lower,

on the bottom shelf where it appeared storage for yellow folders

or legal mail, | searched what appeared to be legal mail

belonging to inmate Marino, Vincent reg#14431-038 and one

black LG smart phone located inside the yellow folder retaining

legal mail.

Id.

On May 13, 2019, Petitioner appeared before the Unit Discipline

Committee (“UDC”), during which time he was provided with a copy of Inmate

Rights at Discipline Hearing, and the Incident Report was referred by the

UDC to the Discipline Hearing Officer (“DHO”) for a hearing. (See Doc. 1 at

13, Inmate Rights at Discipline Hearing).

On May 30, 2019, Marino appeared for a hearing before DHO, N

Mullins. (Doc. 18-1 at 21-23). The DHO confirmed that Petitioner understood

his rights. Id. At the onset of the hearing it was noted that although Petitioner

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requested staff representative A. Gibbs, she no longer works at FCI-Fort Dix

and R. Gilyard appeared telephonically as Petitioner's staff representative.

Id. Petitioner’s summary of his statement made before the DHO is as follows:

Inmate appeared in this hearing and he has received a copy of

the incident report. Inmate stated that he understands the rights

before the DHO and the charges against him. He raised no

issues about the disciplinary process. Inmate Marino denied

Possession of a Hazardous Tool (Cellular Phone) stating, | was

called to medical, and | left my locker open; someone else must

have put the cell phone in my locker.

Id. Three witnesses were called on Petitioner's behalf, making the following

statements:

1. [S]omeone was standing by his locker when | walked by his

room; he usually locks his locker; it was a black guy about 6’2,

but | don’t know who it is.

2. | was at work that day; | wasn’t there when the incident

happened; when he is not there, he usually locks his locker.

3. | had heard something about someone planting something on

his days prior, but | don’t know who told me or who it was.

Id.

The DHO found Petitioner guilty of Code 108, Possession of a

Hazardous Tool (Cellular Phone), after reviewing the Incident Report,

Investigative Report, Chain of Custody Log, dated May 9, 2019 and Photo

Sheet depicting the contraband. Id. at 22. The DHO sanctioned Petitioner on

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the Code 108 violation with disallowance of forty (40) days GCT, fifty-four

(54) days forfeiture of Non Vested Good Conduct Time, twelve (12) months

loss of commissary and email privileges. Id. at 23.

The DHO stated the reason for the sanction taken as follows:

The DHO considered that cellular phones are considered

sensitive equipment. Cellular phones are a hazardous tool. The

action on the part of any inmate to possess an accessory for a

hazardous tool, (cellular phone) in any correctional institution

seriously jeopardizes the security of the institution and poses a

threat to the ability of staff to provide for the safety and security

for staff, inmates, and the general public as whole. Possessing a

cellular phone gives an inmate an opportunity to make

completely unmonitored calls. These calls can contain threats to

the general public or plans for an escape attempt or planning or

participating in the other illegal activity. The sanctions imposed

by the DHO were taken to let the inmate know that he, and he

alone, will be held responsible for his actions/behavior at all

times.

The sanction involving the loss of Good Conduct Time was

imposed to comply with the mandatory sanction requirement.

The sanction involving the forfeiture on Non Vested Good

Conduct Time was imposed to deter future misconduct. The

sanctions involving the loss of Commissary and Email privileges

are meant to demonstrate the seriousness of this offense to you

as well as everyone incarcerated at this facility.

id. at 23.

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Marino was advised of his appeal rights at the conclusion of the

hearing. Id. Petitioner received a copy of the DHO report on November 1,

2109. Id.

b. Incident Report No. 3256785

On May 15, 2019 at approximately 5:40 p.m., W. Decker, delivered

Incident Report No. 3256785 to Marino, charging him with Possession of a

Sharpened Instrument, a Code 104 violation. (Doc. 1 at 11, Incident Report).

The incident report reads as follows:

On 5/15/19 at approximately 2:00 pm | Officer McNair was the

unit officer in unit 5803. While monitoring a recall move, |

conducted a pat search of inmate MARINO, Vincent reg number

14431-038. After the pat search was completed inmate MARINO

placed his shirt on the ground in front of him. As MARINO placed

his shirt on the ground, | saw three metallic objects fall out of

MARINO’S shirt. | retrieved the objects and determined they

were a metal nail with a sharp point, a metal socket, and a metal

bolt. | realized the three objects could be fastened together to

make a weapon. The bolt screwed into the socket which secured

the sharp nail creating an approximate 6-inch weapon. | then

realized that MARINO was in possession of a sharpened

instrument. MARINO was placed in hand restraints and escorted

to medical to be assessed.

id.

On May 17, 2019, Petitioner appeared before the Unit Discipline

Committee (“UDC”), during which time he was provided with a copy of Inmate

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Rights at Discipline Hearing, and the Incident Report was referred by the

UDC to the Discipline Hearing Officer (“DHO”) for a hearing. (See Doc. 18-1

at 24).

On May 30, 2019, Marino appeared for a hearing before DHO, N

Mullins. (Doc. 18-1 at 24-26). The DHO confirmed that Petitioner understood

his rights. Id. At the onset of the hearing it was noted that Petitioner

requested staff representative and R. Gilyard met with Marino prior to the

hearing. Id. R. Gilyard did not make a statement regarding the incident. Id.

Petitioner's summary of his statement made before the DHO is as follows:

Inmate appeared in this hearing and he has received a copy of

the incident report. Inmate stated that he understands the rights

before the DHO and the charges against him. He raised no

issues about the disciplinary process. Inmate Marino denied

Possession of a Weapon, stating, the C.O. did pat search me,

but the items were in my pocket not my shirt; | did not put these

items in my pocket someone else must have.

id. One witness was called on Petitioner's behalf and made the following

statement:

“| was in SHU on May 15, 2019; | know Vinny and he has a lot of

people that don’t like him, some white guy with tattoos said he

doesn't like Vinny and said | am going to get him, but! don’t know

if anyone put anything in his clothes.”

Id.

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The DHO found Petitioner guilty of Code 104, Possession of a

Weapon, after reviewing the Incident Report, Investigative Report, a

Memorandum from Counselor L. Batiste, dated May 15, 2019, Chain of

Custody Log, dated May 9, 2019 and Photo Sheet depicting the contraband.

Id. at 25. The DHO sanctioned Petitioner on the Code 104 violation with

disallowance of forty (40) days GCT, and twelve (12) months loss of

commissary and visiting privileges. Id. at 26.

The DHO stated the reason for the sanction taken as follows:

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

type of weapon capable of inflicting serious injury to another

person, whether another inmate or staff member, threatens the

health, safety, and welfare of not only the inmate involved but

that of other inmates and staff. In the past, this type of

action/behavior has been shown to result in serious injuries, even

death; and the serious loss of property. The sanctions imposed

by the DHO were taken to let the inmate know that he, and he

alone, will be held responsible for his actions/behavior at all

times.

The sanction involving the loss of Good Conduct Time was

imposed to comply with the mandatory sanction requirement.

The sanctions involving the loss of Commissary and Visiting

privileges are meant to demonstrate the seriousness of this

offense to you as weil as everyone incarcerated at this facility.

Id. at 26.

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Marino was advised of his appeal rights at the conclusion of the

hearing. Id. Petitioner received a copy of the DHO report on November 1,

2109. Id.

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

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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 Bureau of Prisons has enacted specific procedures for disciplinary

proceedings. 28 C.F.R. §541.1, et seg. 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

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§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).

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

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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 Marino was afforded

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

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

hearings; he appeared at the hearings and made siatements refuting the

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

present witnesses and provide documentary evidence; and he was given

written statements explaining the DHO’s decision in both hearings. See

Wolff, 418 U.S. at 564-66.

Petitioner's remaining claims challenge the sufficiency of the evidence

used to support the DHO’s decisions and the adequacy of the appeal

process to challenge the DHO’s evidence. 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).

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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. In Hill, the Supreme Court described the “some evidence” standard

as follows:

Ascertaining whether this standard is satisfied does not require

examination of the entire record, independent assessment of the

credibility of witnesses, or weighing of the evidence. Instead, the

relevant question is whether there is any evidence in the record

that could support the conclusion reached by the disciplinary

board.

472 U.S. at 455-56.

Marino “makes a claim of actual innocence” regarding his possession

of the cellphone and weapon, and states that he “has not had an

unobstructed procedural shot at presenting this claim.” (Doc. 1 at 5).

Specifically, Marino states that, on June 30, 2019, a month after his DHO

hearing, inmate R. spoke to a BOP lieutenant in front of a cell on the special

housing unit (SHU) at FCI Fort Dix. Id. at 6-7. According to Marino, an inmate

confessed to the lieutenant that he planted the cellphone and weapon on

Marino. Id. at 6. Marino believes that the lieutenant took down notes of his

conversation with the inmate and that the conversation was captured by □

cameras in the SHU. Id. at 6-8. Marino further claims that the lieutenant then

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emailed another lieutenant with the BOP’s special investigative services

(SIS) regarding the conversation with the inmate. Id. at 7. Finally, Marino

alleges that a case manager who was part of Marino ’s unit discipline

committee (UDC) was sleeping with inmates and trafficking heroin into FCI

Fort Dix at the time of Marino ’s UDC hearings. Id. at 8.

Accordingly, Marino argues that the BOP “committed reversible legal

error” in multiple ways. First, Marino believes that BOP staff handling his

DHO appeals did not properly investigate his claims regarding the identified

inmate’s alleged confession to the lieutenant. Id. at 6-8. Second, he alleges

that the inmate’s testimony was not allowed at his original DHO hearings. Id.

at 7. Finally, he argues that he should have received copies of his purported

evidence, namely: the lieutenant’s notes from his conversation with the

inmate; video of the conversation; the lieutenant’s email to SIS; and

“discovery” regarding the case manager’s alleged crimes. Id. at 8

The record before this Court completely belies Petitioner’s claims.

Initially, the Court notes that Marino’s claim regarding “newly

discovered evidence” of “video live footage” filmed on June 30, 2019, in

which an inmate confesses to SIS Lt. Salazar that he “planted both the cell

phone and 2-inch nail on Marino,” (Doc. 1 at 7), was presented by Petitioner

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in his Regional Administrative Remedy Appeal as a Due Process denial of

Petitioner being “prevented from presenting documentary evidence affidavit”

and “to call witnesses” at his “UDC & DHO” hearings, that both “cell-phone

& knife” were planted in Petitioner's cell.” (Doc. 1 at 20-25). Attached to

Petitioner's appeals is a copy of a May 16, 2019 Affidavit of the alleged

exculpatory documentary evidence discussed in the June 30, 2019 video

footage. (Doc. 1 at 15). Thus, it appears that the exculpatory affidavit existed

at the time of Petitioner's May 30, 2019 disciplinary hearings. Although in

existence at the time of the hearings, there is no record of Petitioner

requesting that this exculpatory affidavit be admitted into evidence or that

any witness he requested to attest to this affidavit or evidence contained

therein was denied.

Moreover, Petitioner's challenge to this exculpatory evidence was

considered on appeal and denied as follows:

You appeal the May 30, 2019, decision of the Discipline Hearing

Officer (DHO) regarding incident report #3254662, in which you

were found to have committed the prohibited act of Code 108,

Possession of a Hazardous Tool (Cellphone). You further

contend the DHO held another job title at your previous institution

which indicates bias and a conflict of interest. You further allege

you were denied a review of exculpatory evidence to include

camera evidence. You further contest the DHO report being

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delivered late. 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. The DHO’s decision was based upon the evidence

detailed in Section V of the DHO report. We find the

determination of the DHO is reasonable and supported by the

evidence. In addition to the Admission and Orientation

Handbook, Program Statement 5270.09 provides that inmates

are responsible to keep their area free of contraband. Ownership

of the item or whether it “belonged” to you is not the issue in this

matter. Your possession is the issue, and the cellphone was

located in an area in which you were assigned and to which you

had access to. Accordingly, it is appropriate to support the

charge as stated. Your Due Process rights were upheld during

the discipline process. The DHO report states you raised no Due

Process or evidentiary issues at the onset of the DHO hearing

and you were appointed a staff representative. The sanctions

imposed were commensurate to the severity level of the offense

committed and in compliance with policy.

Although you contend the DHO had collateral duties at your

previous institution and therefore could not be impartial in this

matter, we find the DHO in this case was not a victim, witness,

investigator, or otherwise significantly involved in the incident.

We do not find any evidence to suggest the DHO was not

impartial during this disciplinary proceeding.

P.S. 5270.09, also states the DHO shall give the inmate a written

copy of the decisions and disposition, ordinarily within 15 days of

the DHO decision. Although there was a delay in providing you

with a copy of the DHO report within the 15-day period, we find

_ you were not adversely affected. The time frame for appealing a

DHO decision starts from the date you receive the written notice

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of the decision. Notably, you were able to exercise your appeal

rights as is evident with this appeal.

(Doc. 1 at 29, Response). Marino’s administrative appeal regarding incident

report #3256785, Possession of a Weapon, Code 104, was also denied,

finding that the DHO’s decision was reasonable and supported by the

evidence. (Doc. 1 at 26, Response).

BOP Prohibited Act 108 precludes possession of a hazardous tool,

including a cellphone. 28 C.F.R. §541.3 Table 1. The regulation does not

require ownership or even use of a cellphone for violation of the Code. See

also BOP P.S. 5270.09, Table 1. Thus, Petitioner's challenge to the

sufficiency of the evidence relief upon by the DHO is denied because there

is sufficient evidence to establish Petitioner possessed the cellphone or the

weapon, and even if there existed an affidavit showing Petitioner did not own

or even use the cellphone or weapon, the affidavit would not exonerate him.

See e.g., Denny v. Schultz, 708 F.3d 140, 147 (3d Cir. 2013) (“it is

undisputed that two homemade shanks were found in a space accessible

from within Denny’s cell. This evidence, by itself, constitutes “some

evidence” that Denny possessed the weapons in question”). As such, the

DHO’s decision clearly meets the due process requirement of being

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supported by “some evidence in the record” under Hill. See Sinde_v.

Gerlinski, 252 F.Supp.2d 144, 150 (M.D. Pa. 2003) (“If there is ‘some

evidence’ to support the decision of the hearing examiner, the court must

reject any evidentiary challenges by the plaintiff’) (quoting Hill, 472 U.S. at

457).

The Court further finds that the Code 108 sanctions of disallowance of

forty (40) days GCT, fifty-four (54) days forfeiture of Non Vested Good

Conduct Time, twelve (12) months loss of commissary and email privileges,

and the Code 104 sanctions of disallowance of forty (40) days GCT and

twelve (12) months loss of commissary and visiting privileges imposed by

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

guilty of two 100 severity level prohibited acts. 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.

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F. Loss of privileges (e.g. visiting, telephone, commissary,

movies, recreation).

G. Change housing (quarters).

H. Remove from program and/or group activity.

|. 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.

ill. Conclusion

For the reasons stated above, the petition for a writ of habeas corpus

will be DENIED. A separate Order will be issued.

Malachy E€. Mannion

MALACHY E. MANNION

United States District Judge

DATED: January 6, 2022

20-1456-01

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