Lee v. Sage

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

IVAN LEE, Civil No. 3:22-cv-1271

Petitioner . (Judge Mariani)

: scAitteaw

WARDEN J. SAGE, : OCT 2 1 2q79

Respondent . ren ie

MEMORANDUM merY OUR

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 lvan Lee (“Petitioner”), an inmate in the

custody of the Federal Bureau of Prisons (“BOP”). Petitioner contends that his due process

rights were violated in the context of two disciplinary hearings held at the Federal

Correctional Institution, Fort Dix, New Jersey (“FCI-Fort Dix’). (Docs. 1, 2). He also asserts

that the BOP incorrectly calculated his sentence. (/d.). For the reasons set forth below, the

Court will deny the petition.

Background

A. — BOP Disciplinary Process

The BOP’s disciplinary process is fully outlined in Code of Federal Regulations

("C.F.R.”), Title 28, Sections 541 through 541.8. These regulations dictate the manner in

which disciplinary action may be taken should a prisoner violate, or attempt to violate,

institutional rules. The first step requires filing an incident report and conducting an

investigation pursuant to 28 C.F.R. § 541.5. Staff is required to conduct the investigation

promptly absent intervening circumstances beyond the control of the investigator. 28 C.F.R.

§ 541.5(b).

Following the investigation, the matter is then referred to the Unit Disciplinary

Committee (“UDC”) for an initial hearing pursuant to 28 C.F.R. § 541.7. If the UDC finds

that a prisoner has committed a prohibited act, it may impose minor sanctions. /d. If the

alleged violation is serious and warrants consideration for more than minor sanctions, or

involves a prohibited act listed in the greatest or high category offenses, the UDC refers the

matter to a Disciplinary Hearing Officer (‘DHO”) for a hearing. /d. Greatest Severity

category offenses carry a possible sanction of, inter alia, loss of good conduct time credits.

Id. § 541.3. In the event that a matter is referred for a hearing, the Warden is required to

give the inmate advance written notice of the charges no less than twenty-four (24) hours

before the DHO hearing and offer the inmate a full-time staff member to represent him at

the DHO hearing. /d. § 541.8 (c) and (d).

At the DHO hearing, the inmate is “entitled to make a statement and present

documentary evidence” and has the right to present documents and submit names of

requested witnesses and have them called to testify. /d. § 541.8(f). The DHO shall “call

witnesses who have information directly relevant to the charge[s] and who are reasonably

available.” Id. § 541.8(f)(2). The DHO need not call repetitive witnesses or adverse

witnesses. /d. § 541.8(f}(3). The inmate has the right to be present throughout the DHO

hearing except during “DHO deliberations or when [his] presence would jeopardize

institution security, at the DHO’s discretion.” Id. § 541.8(e). The DHO must “consider all

evidence presented during the hearing.” /d. § 541.8(f). “The DHO’s decision will be based

on at least some facts and, if there is conflicting evidence, on the greater weight of the

evidence.” Id. The DHO has the authority to dismiss any charge, find a prohibited act was

committed, and impose available sanctions. /d. § 541.8. The DHO must prepare a record

of the proceedings sufficient to document the advisement of inmate rights, DHO’s findings,

“DHO’s decision”, specific “evidence relied on by the DHO” and must identify the reasons

for the sanctions imposed. Id. § 541.8(f)(2). A copy must be delivered to the inmate. Id.

B. □□□ Incident Report Number 3399735

On May 17, 2020, while conducting a search of cell 219 in Unit 5741 at FCI-Fort Dix,

a staff member discovered an MP3 olayer on the table which included a 16GB Samsung SD

card with a photo of Petitioner, which was not a BOP approved photo. (Doc. 10-1, p. 9,

Incident Report). In the photo, Petitioner was wearing a grey cap, a grey shirt, black

glasses, and a medical mask, and he displayed his middle finger. (/d.). As a result, on May

18, 2020, Petitioner received Incident Report Number 3399735, charging him with violating

Prohibited Act Code 108—possession of a portable telephone, pager, or other electronic

device. (/d.). On May 21, 2020, Petitioner appeared before the UDC. (/d.). The UDC

referred the matter to the DHO due to the severity of the incident. (/d.).

On May 21, 2020, a staff member provided Petitioner with a “Notice of Discipline

Hearing before the Discipline Hearing Officer (DHO)” form. (/d. at p. 20, Notice of Discipline

Hearing before the DHO). Petitioner signed the form, did not request representation by a

staff member, and elected to call a witness on his behalf. (/d.).

The DHO hearing convened on July 27, 2020. (Id. at pp. 10-13). During the July 27,

2020 hearing, the DHO confirmed that Petitioner received advanced written notice of the

charges and that he had been advised of his rights before the DHO. (/d. at p. 10).

Petitioner waived his right to a staff representative, expressed an understanding of his rights

before the DHO, and admitted to the charges. (/d.). He provided the following statement: “I

am guilty, | take responsibility for my actions.” (/d.). Petitioner cited no procedural issues

and offered no additional documentary evidence. (/d.). He requested to call a witness to

provide testimony on his behalf. (/d. at pp. 10, 12). The inmate witness would purportedly

testify that Petitioner was not present in the cell during the search. (/d.). The DHO found

that this information was not relevant because the inmate witness was not an eyewitness to

the incident and could not provide testimony to the particular facts described in the incident

report. (/d. at p. 12).

The DHO found sufficient evidence that Petitioner committed the Code 108 violation,

after considering and relying upon the reporting officer's written statement, the investigation,

the photograph of Petitioner, and Petitioner's admission of guilt during the hearing. (/d. at

pp. 11-12). The finding of guilt for the Code 108 violation resulted in disallowance of 41

days of good conduct time, loss of visiting privileges for 365 days, and disciplinary

segregation for 60 days, suspended. (/d. at p. 12). The DHO cited the following reasons for

imposition of the sanctions:

The action/behavior on the part of Possessing a hazardous tool significantly

threatens the health, safety, and welfare of not only himself, but of all

persons, whether another inmate or any other person, are involved in the

act. This will not be tolerated. Past evidence has shown that disruptive

conduct has led to serious damage to the institution, as well as serious injury

to staff and inmates involved and not involved in the disruptive conduct. The

sanctions imposed by the DHO were taken to inform the inmate that he will be

held responsible for his actions/behaviors at all times.

(Id.).

At the conclusion of the hearing, the DHO provided a copy of the report to Petitioner

and advised him of his appeal rights. (/d.). Thereafter, on August 27, 2020, a staff member

delivered the DHO report to Petitioner. (/d. at p. 13).

C. Incident Report Number 3432175 .

On September 11, 2020, while making rounds in Unit 5741 at FCl-Fort Dix, BOP

staff observed Petitioner holding a mini L8star black cell phone while in his bunk in room

219. (Doc. 10-1, p. 14, Incident Report). Staff asked Petitioner to hand over the cell phone,

and he complied. (/d.). As a result, on September 11, 2020, Petitioner received Incident

Report Number 3432175, charging him with violating Prohibited Act Code 108—possession

of cell phone. (/d.). On September 14, 2020, Petitioner appeared before the UDC. (ld.).

The UDC referred the Incident Report to the DHO due to the severity of the incident. (/d.).

On September 14, 2020, a staff member informed Petitioner of his rights at the DHO

hearing and provided him with a copy of the “Inmate Rights at Discipline Hearing” form. (ld.

at p. 15, Inmate Rights at Discipline Hearing). Petitioner was also provided with a “Notice of

Discipline Hearing before the Discipline Hearing Officer (DHO)” form. (Id. at p. 21, Notice of

Discipline Hearing before the DHO). Petitioner signed both forms, he requested -

representation by a staff member, and elected to call witnesses on his behalf. (/d.).

The DHO hearing convened on October 5, 2020. (/d. at pp. 16-19). During the

October 5, 2020 hearing, the DHO confirmed that Petitioner received advanced written

notice of the charges and that he had been advised of his rights before the DHO. (/d. at p.

16). Petitioner requested representation by a staff representative, requested to call

witnesses on his behalf, expressed an understanding of his rights before the DHO, and □

stated that he was “not guilty.” (/d. at pp. 16-17). Petitioner cited no procedural issues and

offered no additional documentary evidence. (/d.). The staff representative reviewed the

DHO packet and all available evidence and stated that he had “no concerns about inmate

Lee's Due Process Rights.” (/d. at p. 16). The inmate witness appeared at the hearing and

testified that Petitioner “didn’t have the phone.” (/d.).

Based on the greater weight of the evidence, the DHO found that Petitioner

committed the Code 108 violation, after considering and relying upon the reporting officer’s

written statement, the eyewitness account of staff members, Petitioner's testimony during

the hearing, the testimony of the inmate witness, staff memorandum, and a photograph of

the cell phone found in Petitioner's possession. (/d. at pp. 16-18). The finding of guilt for

the Code 108 violation resulted in disallowance of 41 days of good conduct time, loss of

phone privileges for 720 days, and forfeiture of 60 days of non-vested good conduct time.

(Id. at p. 18). The DHO cited the following reasons for imposition of the sanctions:

The action/behavior on the part of Possessing a hazardous tool significantly

threatens the health, safety, and welfare of not only himself, but of all

persons, whether another inmate or any other person, who are involved in the

act. This will not be tolerated. Past evidence has shown that disruptive

conduct has led to serious damage to the institution, as well as serious injury

to staff and inmates involved and not involved in the disruptive conduct. The

sanctions imposed by the DHO were taken to inform the inmate that he will be

held responsible for his actions/behaviors at all times.

The DHO considered your continued disruptive behavior, also your

willingness NOT TO ACCEPT full responsibility for your actions, and the

seriousness of this particular prohibited act infraction. The fact there is a zero

tolerance for inmates to possess hazardous tools in a Correctional Setting,

and the fact this is your second Greatest Severity (100 level) incident report

committed in the 24 month time period for REPEATED PROHIBITED ACTS

WITHIN THE SAME SEVERITY LEVEL. Your last Greatest Severity incident

report was committed on July 27, 2020, this was an unfavorable factor when

determining your sanctions for this prohibited act. Clearly previous sanctions

have not deterred you from engaging in this type of disruptive behavior,

therefore the DHO imposed slightly higher sanctions in accordance with P.S.

5270.09...

(Id. at p. 19).

At the conclusion of the hearing, the DHO provided a copy of the report to Petitioner

and advised him of his appeal rights. (/d.). Thereafter, on November 5, 2020, a staff

member delivered the DHO report to Petitioner. (/d.).

Il. Discussion

A. Due Process Claim

Petitioner claims that his due process rights were violated in the context of the

disciplinary hearing process because he did not receive written notice at least twenty-four

(24) hours prior to the DHO hearings. The Due Process Clause of the Fifth Amendment of

the Constitution of the United States provides: “No person shall . . . be deprived of life,

liberty, or property, without due process of law.” U.S. Const. amend. V. Federal inmates

possess a liberty interest in good conduct time. See Wolff v. McDonnell, 418 U.S. 539, 555-

97 (1974); Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991).

When a prison disciplinary hearing may result in the loss of good conduct time

credits, due process requires that the prisoner receive certain due process protections: (1)

written notice of the claimed violation at least twenty-four (24) hours in advance of the

hearing; (2) the opportunity to call witnesses and present documentary evidence when

_ consistent with institutional and correctional goals; (3) assistance in presenting a defense if

the inmate is illiterate; (4) an impartial tribunal; and (5) a written statement by the factfinder

as to evidence relied on and reasons for the disciplinary action. See Wolff, 418 U.S. at 564.

Here, Petitioner was afforded all of the required procedural rights set forth in Wolff.

Petitioner asserts that he did not receive written notice of the charges at least

twenty-four (24) hours prior to the DHO hearings. The record proves otherwise. Wolff

requires that an inmate be provided notice of the charges against him at least twenty-four

(24) hours in advance of the disciplinary hearing. See Wolff, 418 U.S. at 564. Itis

undisputed that Petitioner received such notice. On May 18, 2020, Petitioner received

advanced notice of the charges against him when the investigating lieutenant delivered a

copy of Incident Report Number 3399735 to him. (Doc. 10-1, p. 9). On July 27, 2020,

Petitioner appeared before the DHO for Incident Report Number 3399735. (id. at pp. 10-

13). On September 11, 2020, Petitioner received advanced notice of the charges against

him when the investigating lieutenant delivered a copy of Incident Report Number 3432175

to him. (/d. at p. 14). On October 5, 2020, Petitioner appeared before the DHO for Incident

Report Number 3432175. (/d. at pp. 16-19). Thus, Petitioner was given notice for both

incident reports in advance of the required twenty-four (24) hours prior to the hearings, and

there is no merit to any argument that officials violated the procedures required by Wolff.

Additionally, after Petitioner received the incident reports, he appeared before the UDC. He

was properly informed of his rights before the DHO hearings, as well as given the

opportunity to make his own statement, present documentary evidence, have a staff

representative, and to present witnesses on his behalf. At the conclusion of the DHO

hearings, Petitioner received written decisions setting forth the evidence relied upon by the

DHOs and the rationale behind the decisions. Petitioner was also notified of his right to

appeal. .

Since Petitioner was afforded all of his procedural rights, the only remaining issue is

whether there was “some evidence” to support the decisions by the DHOs. In accordance

with Hill, there need only be “some evidence” to support the disciplinary decision. Hill, 472

U.S. at 455-56; see also Denny v. Schultz, 708 F.3d 140, 145 (3d Cir. 2013) (noting that the

Court “need only find that the [Hearing Officer's] decision had ‘some basis in fact’ in order to

affirm the decision as comporting with the Due Process Clause”). The determination of

whether the 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.” Hill, 472 U.S. at455. The record

clearly reveals the existence of some evidence to allow the DHOs to conclude that

Petitioner was guilty of the charges. With respect to Incident Report Number 3399735, □□

- concluding that the greater weight of the evidence supported a finding of guilt, the DHO

10

considered the reporting officer's written statement, the investigation, the photograph of

Petitioner, and Petitioner's admission of guilt during the hearing. (Doc. 10-1, pp. 11-12). As

to Incident Report Number 3432175, in concluding that the greater weight of the evidence

supported a finding of guilt, the DHO considered the reporting officer's written statement,

the eyewitness account of staff members, Petitioner's testimony during the hearing, the

testimony of the inmate witness, staff memorandum, and a photograph of the cell phone

found in Petitioner's possession. (/d. at pp. 16-18). In each instance, the DHO's reliance on

such documentary evidence supports a conclusion that the decision has some basis in fact

and is supported by some evidence.

Next, the Court finds that all sanctions imposed by the DHO were within the limits of

28 C.F.R. § 541, ef seq. Petitioner was found guilty of two 100-level, greatest severity

prohibited acts. 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.

11

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.

28 C.F.R. § 541.3 (Table 1).

The sanctions imposed by the DHO were consistent with the severity level of the

prohibited acts and within the maximum available to the DHO.

Further, “[t]he Eighth Amendment is violated only when a punishment is grossly

disproportionate to the severity of the offense.” Levi v. Holt, 192 F. App’x 158, 162 (3d Cir.

2006) (citing Rummel v. Estelle, 445 U.S. 263, 271-74 (1980)). Therefore, only sanctions

that “impose [] atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life,” may be deemed excessive. Moles v. Holt, 221 F. App’x 92, 95 (3d

Cir. 2007) (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). The penalties imposed

here, loss of good conduct time, disciplinary segregation, loss of privileges, and forfeiture of

non-vested good conduct time, do not work an “atypical and significant hardship” on

Petitioner and do not serve to extend his confinement beyond the expected parameters of

his sentence.! Sandin, 515 U.S. at 484-85. Consequently, he is not entitled to relief.

' Petitioner's projected release date is July 8, 2024, via good conduct time. (Doc. 10-1, pp. 3,

22),

12

B. |The BOP Correctly Computed Petitioner's Sentence

Petitioner also claims that the BOP incorrectly calculated his sentence. He requests

that the Court order a review of his sentence computation because he is owed thirty-two

(32) days of good conduct time.

Good time credit results in an actual reduction of an inmate’s sentence and is

awarded for maintaining good behavior during incarceration. All incarcerated persons, other

than those serving a life sentence, are eligible for good time credit. Pursuant to 28 C.F.R. §

523.20(b)(1), the BOP awards inmates up to fifty-four (54) days of good conduct time credit

for each year of the sentence imposed by the court.

Here, Petitioner is predicted to accrue fifty-four (54) days of good conduct over

fourteen (14) years, for a total of 756 days. (Doc. 10-1, pp. 4, 22, Sentence Monitoring

Good Time Data). However, in 2018, 2019, and 2022, Petitioner lost twenty-seven (27)

days of good conduct time; in 2021, he lost fifty-four (54) days of good conduct time, and in

2020, he forfeited sixty (60) days of good conduct time. (/d.). In total, these sanctions

resulted in disallowance of 195 days of good conduct time. Therefore, subtracting 195 from

the 756 days, results in a total predicted good conduct time of 561 days. (/d.). Thus, as set

forth in the BOP’s Sentence Monitoring Good Time Data, the BOP correctly calculated

Petitioner's sentence and he is not entitled to relief on this claim. (See id.).

13

Ill. Conclusion

Based on the foregoing, the Court will deny the petition for writ of habeas corpus. A

separate Order shall issue.

Vv

LEY

(ES VM aes

Robert D. Mariani

United States District Judge

Dated: October Zi , 2022

14

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

IVAN LEE, Civil No. 3:22-cv-127 1

Petitioner (Judge Mariani)

v. acer

WARDEN J. SAGE, . OCT 9 1 □□

Respondent : ech

DEPUTY CLERK

ORDER

AND NOW, this 257’ day of October, 2022, upon consideration of the petition for

writ of habeas corpus, and for the reasons set forth in the accompanying Memorandum, IT

IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus is DENIED. (Doc. 1).

2. The Clerk of Court is directed to CLOSE this case.

Cy J

foe?

Rdbert D.\Mariani

United States District Judge