# Johnson v. Gibson

> District Court, M.D. Pennsylvania · November 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10413889

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** November 7, 2023
- **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
RAYMOND CRAIG JOHNSON, :
CIVIL ACTION NO. 3:22-0640
Petitioner :
(JUDGE MANNION)
V. :
WARDEN J.L. JAMISON,
Respondent :
MEMORANDUM
Raymond Craig Johnson, an inmate confined in the Allenwood Federal
Correctional Institution, White Deer, 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, in which he was
found guilty of fighting and sanctioned to twenty-seven (27) days loss of good
conduct time. Id. Specifically, Petitioner claims that the investigating officer
failed to advise him of his rights; he engaged in self-defense, the DHO should
have found him mentally incompetent, and the DHO was biased. 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.

|. Background
On August 10, 2021, at approximately 6:36 a.m., Officer T. Strickland,
delivered Incident Report No. 3534099 to Johnson, charging him with
fighting with another person, in violation of Code 201 and refusing to obey
an order, in violation of Code 307. (Doc. 8-1 at 8, Incident Report). The
incident report reads as follows:
Inmate Johnson, Raymond #30880-057 was observed fighting
with inmate []. Both inmates were observed striking each other
with a closed fist about the head and upper torso area. | gave
both a directive to stop striking each other and both inmates
refuse to stop striking each other. | then deployed a 2 second
burst of OC from my MK-4. | gave another directive to stop
fighting and they again refuse to stop fighting. | then deployed
another 2 second burst of OC from my MK-4. After the 2"? burst
of OC both inmates complied and stop fighting.
Id.
On August 12, 2021, Petitioner appeared before the Unit Discipline
Committee (“UDC”). (See Doc. 8-1 at 9, Committee Action). Due to the
seriousness of the offense, the UDC referred the charge to the Discipline
Hearing Officer (“DHO”). Id. During the UDC hearing, staff member, R.
Robertson informed Johnson of his rights at the DHO hearing and provided
him with a copy of the “Inmate Rights at Discipline Hearing” form. (Id. at 11,
Inmate Rights at Discipline Hearing). Petitioner was also provided with an
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opportunity to request witnesses and to have a staff representative. (Id. at
12). Petitioner's attitude was noted as fair, and Petitioner declined to provide
a statement. (Id. at 10).
On August 17, 2021, Johnson appeared for a hearing before DHO,
Nevils. (Doc. 8-1 at 13-16). He waived his right to have a staff
representative,’ and witnesses. Id. Johnson admitted to fighting before the
DHO.” Id.
In addition to the Incident Report and Investigation, the DHO
considered the following documentary evidence: Medical Assessments,
memos, photos and CCTV footage. Id. Based on the weight of the evidence,
the DHO found that Petitioner committed the prohibited act of fighting with
another person, a Code 201 violation. Id. The DHO sanctioned Johnson on
the Code 201 violation to twenty-seven (27) days loss of Good Conduct
Time; thirty (30) days disciplinary segregation; and 120 days loss of phone
privileges. Id. The DHO documented that due to the severity of the offense,

1 Although the DHO references in his report that “[yjou did request a staff
representative but no witnesses to assist you in preparing for this hearing,” the actual
DHO Report reflects an “X” after the statement “[iJnmate waived right to staff
representative.” This inconsistency is indicated as a typographical error by DHO Nevils in
his declaration. (Doc. 8-1 at 3, Declaration of Charles Nevils). Thus, the DHO Report
comports with Respondent's wish to not have a staff representative, as indicated in his
Notice of Discipline Hearing Before the DHO. (See Doc. 8-1 at 12).
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and to deter this activity in the future, loss af good conduct time and
disciplinary segregation were warranted. Id. He imposed the loss of phone
privileges due to Petitioner’s poor institution adjustment and behavior, finding
that this privilege is meant for those inmates who follow rules and regulations
and do not present a management problem for staff or pose a threat to the
security of the institution, self, or others. Id. Finally, the DHO determined that
all sanctions imposed were to correct the present inappropriate behavior and
deter future behavior of this type.? Id.
Johnson was advised of his appeal rights at the conclusion of the
hearing. Id.

2 The Court notes that in Section V, Specific Evidence Relied on to Support
Findings, the DHO states that Petitioner appeared before the DHO and ajmitted to
fighting, and that the DHO’s review of the CCTV footage clearly showed Petitioner
involved in a physical altercation with another inmate. (Doc. 8-1 at 15). However, in the
first paragraph of Section VII, Reason for Sanction or Action take, the DHO speaks to
“action/behavior on the part of any inmate to possess, manufacture, or introduce a
hazardous tool” and the “possession of a weapon/sharpened instrument and possession
of anything not authorized will not be tolerated.” Id. The Court finds this paragraph
incongruent to the evidence before the DHO, which demonstrated only a physical
altercation between inmates and not the possession of a weapon. Although the DHO
issued a statement correcting the issue with him mistakenly stating that Petitioner
requested staff representation, the DHO, for unknown reasons, failed to correct this
obvious error. The court would suggest that a more careful preparation of these repots
would be appropriate. The Court concludes, however, that the DHO report, together with
the record evidence, supports the DHO’s finding that Petitioner committed the prohibited
act of fighting with another person, a code 201 violation.
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On May 2, 2022, Petitioner filed the instant action, challenging the
DHO’s determination. (Doc. 1).

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 Woiff, 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
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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
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 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
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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). Ifa 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. ld. The decision of the DHO must be based on at least some facts
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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 Johnson was afforded
all the required procedural rights set forth in Wolff. He received written notice
of the disciplinary charges at least twenty-four hours prior to the hearing; he
appeared at the hearing and made a statement, in which he admitted to
fighting. He was also 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 suggests further that his due process
rights were violated because the DHO was biased, when he “used negative
and inaccurate information against [him] as part of the greater weight to draw
adverse inference against [him], (Doc. 1 at 5), while Petitioner is correct that:
he was entitled to an impartial hearing officer, see Wolff, 418 U.S. at 571, his
conclusory allegation of bias cannot stand. In the context of a prison
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disciplinary proceeding, the requirement of an impartial tribunal “prohibits
only those officials who have a direct personal or otherwise substantial
involvement ... in the circumstances underlying the charge from sitting on the
disciplinary body.” See Meyers v. Aldredge, 492 F.2d 296, 306 (3d Cir.
1974). Petitioner simply has not demonstrated that the DHO was “personally
or substantially involved the circumstances underlying [the investigation of
the] charge” such that the DHO should not have presided over his hearing.
See Greer v. Hogston, 288 F. App’x 797, 799 (3d Cir. 2008). Petitioner's
“generalized critique” of the DHO is insufficient to demonstrate the degree of
bias necessary to sustain a due process violation. See Lasko v. Holt, 334 F.
App’x 474, 476 (3d Cir. 2009).
Finally, as to Petitioner's claim that DHO Nevins failed to take his
mental health history into account and find him mentally incompetent, DHO
Nevins submits Petitioner's inmate profile which demonstrates that he is a
Mental Health care level one inmate. (Doc. 8-1 at 17). Care level one inmates
require no significant mental treatment per BOP Program Statement
5310.16, Treatment and Care of Inmates with Mental Illness. (Doc. 8-1 at 4).
Thus, Petitioner fails to demonstrate a due process violation.
Accordingly, a review of the record reveals that, in arriving at a finding
of guilt, the DHO relied on the incident report and investigation, viewed CCTV
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footage clearly depicting Petitioner involved in a physical altercation with
another inmate and considered the inmates’ medical assessments, memos,
photos and Plaintiffs statement admitting to fighting. The DHO’s decision
clearly meets the due process requirement of being 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 finds that all sanctions imposed by the DHO were within the
limits of 28 C.F.R. §541.3. Petitioner was found guilty of a 200-level, high
severity level prohibited act. Pursuant to 28 C.F.R. §541.3, the following are
the sanctions available for 200-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 50%, or up to 60 days, whichever
is less, 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 25% and 50% (14-27 days) of
good conduct time credit available for year (a good conduct time
sanction may not be suspended).
C. Disciplinary segregation (up to 6 months)
D. Make monetary restitution.
E. Monetary fine.
F. Loss of privileges (e.g., visiting, telephone, commissary,
movies, recreation).
G. Change housing (quarters).
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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. Accordingly, the petition will be denied.

lll. 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: November 7, 2023
22-0640-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413889. Public record. Not legal advice.