AMA v. MOSER

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PESHA AMA, :

Petitioner, :

v. : Case No. 3:21-cv-149-KAP

VICKY MOSER, WARDEN, :

F.C.I. LORETTO, :

Respondent :

Memorandum Order

Petitioner Pesha Ama, an inmate at F.C.I. Loretto, filed a petition at ECF no. 7 for a writ of

habeas corpus pursuant to 28 U.S.C.§ 2241, attacking the forfeiture of 41 days good conduct time

(GCT), see 18 U.S.C.§ 3624, ordered as a result of a disciplinary proceeding in which petitioner

was charged with possessing a cellphone, a violation of disciplinary Code 108, see 28 C.F.R.§ 541.3,

table 1. (There were other sanctions imposed but they have expired.) The petition is denied

without need of response by the respondent. See 28 U.S.C.§ 2243.

A disciplinary hearing officer (DHO) held a hearing at F.C.I. Petersburg on May 25, 2020

and found Ama guilty of possessing a cellphone that had been found in a baseboard heater of the

petitioner’s cell. The DHO noted that at the hearing Ama stated “It was my phone,” and also noted

that at the time of the search on May 12, 2020, Ama’s cellmate had denied possession or knowledge

of the cellphone to corrections officer Fleek, the officer who had discovered the phone. The

incident report had been written by a Lieutenant McWilliams, and a copy had been given to Ama

on May 12, 2020, by a staff member named Plum. Based on Ama’s admission, the DHO found

Ama guilty and imposed a sanction of loss of phone privileges for six months, disciplinary

segregation for 15 days, and loss of 41 days of GCT.

Ama appealed through the three levels of the inmate administrative remedy system

provided by the Bureau of Prisons. In the administrative appeal at the regional level the reviewing

authority noted that not only did Ama not contest the possession of the cellphone, he had provided

McWilliams with the PIN number she used to unlock the phone. At the final, national level of

review, the reviewing authority responded to Ama’s appeal with a concession that Ama had

received the written DHO report more than 15 days after the decision, but the administrator of the

appeals system found no basis for relief from this because there was no information to suggest that

this had any impact on Ama’s ability to prepare a defense.

Ama argues throughout his pro se petition that his GCT should be restored because (1) the

officer who conducted the cell search was not the officer who wrote the incident report; (2) more

penalties were actually imposed on him than the DHO ordered; and (3) he received the DHO’s

written decision more than 15 days after the decision, which hindered his appeal of his sanctions

“which I felt were unfair in the middle of a pandemic.”

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After Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974), a prison disciplinary hearing that

results in the loss of GCT or otherwise extends the time spent in custody must provide at least

these procedural safeguards: an impartial decision-making body; at least twenty-four hours of

advance written notice of the charges; an opportunity to call witnesses and present documentary

evidence; assistance from an inmate representative if the charge involves complex issues or if the

prisoner is illiterate; and a written decision explaining the evidence relied upon and the reasons

for the disciplinary action. See Campbell v. Warden Allenwood USP, 808 Fed.Appx. 70, 72 (3d Cir.

2020). By contrast, where no constitutionally significant sanction is imposed, there is no right to

the Wolff v. McDonnell procedures, or even to a hearing at all. See Sandin v. Conner, 515 U.S. 472,

486 (1995)(inmate given 30 days in the RHU did not suffer any “atypical, significant deprivation”

that would implicate the Due Process Clause).

The substantive protection an inmate has from arbitrary imposition of sanctions is that

disciplinary proceedings that result in loss of GCT or otherwise will affect the length of a sentence

or impose some atypical, significant deprivation must require the production of “some evidence”

of guilt to the charges made against the inmate. Superintendent v. Hill, 472 U.S. 445, 455 (1985)

(“[T]he relevant question is whether there is any evidence in the record that could support the

conclusion reached by the disciplinary board.”) This is codified in the Bureau of Prisons’

regulations at 28 C.F.R.§ 541.8(f)(2017), requiring that “[t]he DHO's decision will be based on at

least some facts and, if there is conflicting evidence, on the greater weight of the evidence.” See

Bureau of Prisons Program Statement 5270.09, Inmate Discipline Program (available at

https://www.bop.gov/policy/progstat/5270_009.pdf, substantially setting out 28 C.F.R.§ 541.1-

8).

Based on the foregoing, Ama’s arguments are meritless. First, there is no requirement that

the reporting officer be the author of the incident report. Ama made this argument in the

administrative appeals process but it is not even certain that Ama intends to press this argument

here.

In the administrative appeals process, Ama’s claim that he was sanctioned more severely

than the DHO ordered was rejected for lack of evidence. Even if Ama proved that claim it would

not compel the overturning of the loss of GCT for at least two reasons: (1) the additional disruption

in access to the Trulincs system that Ama alleges did not foreclose all communication with his

family and could have been imposed without notice or hearing under Sandin v. Conner; and (2)

any such sanction has already expired and is beyond the power of this court to correct in habeas

corpus. The power to issue writs of habeas corpus does not give a court power to restore GCT as a

compensatory measure for a wrong that occurred dehors the DHO proceeding (and if Ama is

correct, contrary to the DHO’s order.)

Finally, the late provision of the DHO decision could not have impaired Ama’s defense at

the hearing since it was the decision provided after the hearing. Nor did it impair his appeal to this

court: no argument by Ama has been rejected for untimeliness or procedural default. Any alleged

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impairment of an administrative appeal is therefore immaterial to this habeas proceeding.

I add the following discussion because inmates filing similar petitions from Loretto often

make the claim that any untimeliness in the receipt of the DHO decision forfeits the BOP’s power

to impose a sanction. See e.g. Trinidad v. Moser, Case No. 3:20-cv-221-KAP (W.D.Pa.). I hope this

explanation is disseminated:

It is true that the DHO report is ordinarily provided to the inmate within fifteen days of the

DHO decision, see Bureau of Prisons Program Statement 5270.09 (available at

https://www.bop.gov/PublicInfo/ execute/policysearch?todo=query&series=5000, substantially

setting out 28 C.F.R.§ 541.1-8). As I have written before, however, even though a government

agency is obliged to follow its regulations that have force of law, see Marshall v. Lansing, 839 F.2d

933, 943 (3d Cir.1988), not every provision in a regulation has the force of law, see Reeb _v.

Thomas, 636 F.3d 1224, 1227 (gth Cir.2011) (“[N]Joncompliance with a BOP program statement is

not a violation of federal law”), confers a private right of action on petitioner, or implies that the

remedy for a violation would be the dismissal of charges. Program Statements are internal agency

guidelines that although important are less formal than regulations subject to the Administrative

Procedures Act. See Reno v. Koray, 515 U.S. 50, 61 (1995).

More generally, to imply a legal remedy from the failure to obey the text of a federal

regulation, statute, or other form of law, a litigant must assert the violation of a federal right, not

merely a violation of the law. Blessing v. Freestone, 520 U.S. 329, 340 (1997). According to the

Supreme Court, three factors to consider are: 1) whether the provision was intended to benefit the

litigant; 2) whether the alleged right is clear enough that enforcement would not strain judicial

competence; and 3) whether the provision imposes a binding obligation.

In this case, it can be fairly said that the first two Blessing v Freestone factors support

petitioner, but the third one does not. Use of the word “ordinarily” typically signals an aspiration

and not an obligation. (To use the Supreme Court’s phraseology, see Blessing v. Freestone, 520

U.S. at 341, the term is precatory rather than mandatory.) The Program Statement does not

unambiguously confer a substantive right to the relief requested, or even hint that the remedy for

an untimely DHO decision is nullification of the power to impose sanctions. See Health Science

Funding, LLC v. The New Jersey Department of Health and Human Services, 658 Fed.Appx. 139,

141 (3d Cir. 2016), discussing Grammer v. John J. Kane Regional Centers-Glen Hazel, 570 F.3d

520 (3d Cir. 2009). This court cannot imply such a remedy.

ke

DATE: March 21, 2022

Keith A. Pesto,

United States Magistrate Judge

Notice by ECF to counsel of record and by U.S. Mail to:

Pesha Ama, Reg No. 91015-083

F.C.I. Loretto

P.O. Box 1000

Cresson, PA 16630

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