# Marino v. Howard

> District Court, M.D. Pennsylvania · January 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10411255

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 6, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411255. Public record. Not legal advice.