Bergeron v. Warden, FCC Coleman - Low

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

JONATHAN S. BERGERON,

Petitioner,

v. Case No: 5:21-cv-361-BJD-PRL

WARDEN, FCC COLEMAN - LOW,

Respondent.

___________________________________

Report and Recommendation1

Petitioner, Jonathan Bergeron, seeks relief under 28 U.S.C. § 2241. (Doc. 1). Bergeron

alleges that he did not receive due process during prison disciplinary proceedings in two ways:

(1) he did not receive notice of the charge against him; and (2) the evidence against him was

fabricated or insufficient. (Id. at 6). Respondent contends that Bergeron received all required

due process during his disciplinary proceedings. (Doc. 4 at 8–11). The issue of whether

Bergeron received notice and whether the evidence relied upon was fabricated or insufficient

has been referred to me. (Doc. 23). Based on the evidence in the record and the testimony

presented at the evidentiary hearing on this matter, I find that Bergeron received all required

due process. Therefore, I recommend that Bergeron’s petition be DENIED.

I. Background

On January 19, 2016, Bergeron was sentenced to 108-months’ imprisonment followed

by 10 years of supervised release for enticement of a minor to engage in sexual activity. See

1 Within 14 days after being served with a copy of the recommended disposition, a party may file written

objections to the Report and Recommendation’s factual findings and legal conclusions. See Fed. R. Civ. P.

72(b)(3); Fed. R. Crim. P. 59(b)(2); 28 U.S.C. § 636(b)(1)(B). A party’s failure to file written objections waives

that party’s right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge

adopts from the Report and Recommendation. See 11th Cir. R. 3-1.

Criminal Case No., 6:14-cr-188-RBD-T_S-1 (Doc. 50). Bergeron served his sentence at the

Federal Correctional Complex, Coleman (“Coleman”) and was released on February 2, 2022.

See Inmate Locator, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last

visited October 21, 2024). Bergeron is now on supervised release. (Doc. 18 at 2).

On June 29, 2020, while he was incarcerated at Coleman, Bergeron was involved in a

physical altercation with another inmate. (Doc. 1 at 10). Bergeron alleges that the other

inmate assaulted him because of a dispute over room assignments. (Id.). The Respondent

contends that the other inmate engaged Bergeron in a verbal altercation that escalated into a

physical altercation when neither inmate backed down. (Doc. 4-1 at 7).

On August 23, 2020, Bergeron appeared in front of the Unit Disciplinary Committee

(“UDC”) regarding the June 29th incident. (Id. at 8). The UDC determined that the matter

should be referred to a Disciplinary Hearing Officer (“DHO”) for a formal hearing because

of the severity of the charge. (Id.). The DHO hearing occurred on August 27, 2020. (Id. at 18).

The DHO found Bergeron guilty of fighting with another inmate after reviewing photographs,

witness statements, and medical assessments. (Id. at 21–22). Consequently, Bergeron lost

fourteen days of good conduct time. (Id. at 22; Doc. 1 at 11). Bergeron appealed to the

Southern Regional Office of the Federal Bureau of Prisons (“BOP”), but he never received a

response. (Doc. 1 at 11). Bergeron filed a “sensitive BP9” to the BOP, but it found that no

due process violations occurred. (Id. at 11–12). Bergeron now files this petition. (See Doc. 1).

II. Evidentiary Hearing

On October 18, 2024, an evidentiary hearing was held. Counsel for Bergeron and

counsel for Respondent appeared at the hearing and presented arguments regarding whether

Bergeron received notice of the disciplinary charge against him and whether the evidence

against him was fabricated or insufficient. Bergeron did not present any evidence or witnesses,

but instead chose to rely on the evidence already in the record. Respondent presented four

witnesses.

First, Respondent called William Gallion, a lieutenant with Coleman’s Special

Investigative Services (“SIS”). Gallion was the shift lieutenant when the altercation occurred.

An inmate reported the altercation to a compound officer who notified Gallion. Gallion and

other officials brought Bergeron and the other inmate to the special housing unit and

separated them. Gallion observed offensive wounds on Bergeron’s hands and photographed

his injuries. Although the other inmate was medically assessed immediately, Bergeron did not

see medical personnel until he sought treatment on August 6, 2020. Because the incident was

unwitnessed by staff, SIS investigated the allegations and generated a report.2 At least two

inmate witnesses were interviewed and corroborated the story that Bergeron and the other

inmate fought.

Second, Respondent called Marvin McCord, a Coleman official, whose everyday

duties include investigating and serving incident reports. McCord testified that he served

Bergeron with a copy of the incident report on August 20, 2020, at 8:22 in the morning as

indicated on the incident report. McCord served Bergeron in his cell. Bergeron’s cell mate

Todd Stevens was also present and would have seen McCord if he was paying attention.

McCord did not remember whether Bergeron made a statement when he was served but

testified that, if Bergeron did, McCord would have notated the statement on the incident

2 Respondent did not provide the full SIS report because it contained confidential information such as

the other inmates’ photographs, the other inmates’ medical assessment, witness statements, and witness

identities.

report. Bergeron did not sign the incident report because that is not the normal practice

according to McCord.

Third, Coleman correctional counselor Patricia Wade testified regarding Bergeron’s

UDC hearing. At the UDC hearing, Wade referred the incident to the DHO for further

proceedings because of the severity of the charge. Wade also presented Bergeron with notice

of the DHO hearing and notice of his rights. Bergeron requested a staff representative and a

witness.3 Although Wade’s recollections were not front of mind, she testified that she did not

recall Bergeron telling her that he did not receive a copy of the incident report, and if he did,

she would have given him a copy.

Fourth, DHO Aaron Rich testified as to Bergeron’s DHO hearing. Rich stated that he

could not remember if Bergeron told him he did not receive a copy of the incident report, but

if an inmate told him they did not receive the incident report, he would provide one for them

and postpone the proceedings in accordance with BOP policy that requires an inmate to have

24-hour notice before a hearing. Rich could not specifically recall whether Bergeron made a

statement during the hearing but noted that if Bergeron did make a statement, Rich would

have notated the DHO report.4 Rich further testified that Bergeron waived his right to have a

staff representative and witness present. Although Rich had a vague recollection, he stated

that he would have considered photographs of Bergeron and the other inmate, the August 6th

medical record, the other inmate’s medical assessment, witness statements, and anything else

in the SIS report when making his decision, as he is trained to do.

3 On the DHO hearing notice, Bergeron requested Case Manager Butler to appear as his staff

representative and Officer Walters to appear as a witness; however, Bergeron later waived his right to a staff

representative and to call witnesses. (Doc. 4-1 at 18, 25).

4 The report indicates that Bergeron chose not to make a statement. (Doc. 4-1 at 22).

III. Legal Standards

Habeas is the “exclusive remedy” for prisoners seeking “immediate or speedier release

from confinement.” Skinner v. Switzer, 562 U.S. 521 (2011); Wilkinson v. Dotson, 544 U.S. 74,

82 (2005). “[T]he essence of habeas corpus is an attack by a person in custody upon the legality

of that custody, and . . . the traditional function of the writ is to secure release from illegal

custody.” Preiser v. Rodriquez, 411 U.S. 475, 484 (1973). The only relief that can be gained in

a habeas action is an immediate or speedier release. See Rose v. Mitchell, 443 U.S. 545, 586

(1979) (Powell, J., concurring with the judgment and noting that “the very purpose of the

Great Writ is to provide some means by which the legality of an individual’s incarceration

may be tested.”); see also Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir. 1979) (noting that the

“sole function of habeas corpus is to provide relief from unlawful imprisonment or custody,

and it cannot be used for any other purpose[]”).5

Prison disciplinary proceedings are not part of a criminal prosecution, and, therefore,

the full panoply of rights that are due to a defendant in a criminal proceeding do not apply.

See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). However, inmates are entitled to some due

process protections. Id. Those protections include: (1) written notice of the charges at least 24

hours before a hearing to enable the inmate to prepare a defense; (2) an opportunity to call

witnesses and present documentary evidence if doing so is not an undue hazard to

institutional safety; and (3) a written explanation of the evidence relied on and reasons for

disciplinary actions. Id.

5 In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

“[I]n addition to [Wolff’s] requirements, some evidence must support the decision to

revoke good time credits[.]” Edwards v. Balisok, 520 U.S. 641, 648 (1997); Superintendent, Mass.

Corr. Institution v. Hill, 472 U.S. 445 (1985) (a decision comports with the requirements of

procedural due process when there is “some evidence” to support the fact finder’s disciplinary

decision); Dean-Mitchell v. Reese, 837 F.3d 1107, 1113 (11th Cir. 2016). The scope of this

Court’s review is limited and does not require an examination of the “entire record” or

reweighing the evidence. Hill, 472 U.S. at 455–56; Young v. Jones, 37 F.3d 1347, 1460 (11th

Cir. 1994). The “courts are not to conduct exhaustive reviews of findings of prison disciplinary

panels.” O’Bryant v. Finch, 637 F.3d 1207, 1214 (11th Cir. 2011). Neither “a disciplinary

board’s factual findings [n]or [its] decisions with respect to appropriate punishment are subject

to second guessing upon review.” Hill, 472 U.S. 455–56. The relevant question is whether

“any evidence” supports the conclusion reached by the prison officials. Id.; Young, 37 F.3d at

1460; Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir. 2001) (holding that prison disciplinary

proceedings are overturned only where no evidence in the record supports the decision) (citing

Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981)).

IV. Discussion

a. Ground One

I begin with Bergeron’s contention that he did not receive written notice of the charge

against him. The Respondent asserts that Bergeron was served a copy of the incident report

at least 24 hours before the UDC hearing. (Doc. 4 at 3). Respondent provides the incident

report and the DHO report as evidence. (Doc. 4-1 at 7, 20). Both reports state that Bergeron

was served a copy of the incident report on August 20, 2020, at 8:22 in the morning. (Id.).

During the evidentiary hearing, McCord testified that he served Bergeron on August

20, 2020, at 8:22 in the morning—as indicated on the incident report. McCord serves incident

reports in the regular course of his duties and—aside from the fact that McCord served

Bergeron in his cell rather than in McCord’s own office—he served Bergeron in the way he

normally serves incident reports. Although Bergeron did not sign the incident report upon

service, McCord has never seen an inmate sign an incident report and it is not the BOP’s

policy to attain an inmate signature on an incident report. I find McCord’s testimony that he

remembers performing his job function by serving Bergeron on August 20, 2020, consistent

with the way he normally performs the function, credible.

In addition, during the evidentiary hearing, Wade—the official who conducted the

UDC hearing—and Rich—the DHO—both consistently testified that, although Bergeron’s

disciplinary proceedings were not front of mind, they would have provided him with a copy

of the incident report if he told them he was not served. Neither Wade nor Rich noted in their

reports that Bergeron complained of not receiving the incident report or that Bergeron made

any other statement. (Id. at 8, 20, 22). Rich further testified that he would have postponed the

DHO hearing to comport with the BOP’s 24-hour notice requirement, which mirrors Wolff’s

requirement, if he knew Bergeron was not served.

In support of his contention, Bergeron provides a sworn statement by his cellmate

Todd Stephens attesting to the fact that Bergeron never received the report. (Doc. 1 at 26).

Stephens claims to know that Bergeron did not receive a copy of the incident report because

he was present at Bergeron’s UDC hearing where he allegedly heard Bergeron tell Wade that

he was not served. (Id.). Stephens further claims that he “can affirm and attest to the fact that

[his] cellmate” “was not served a written incident report by [] McCord on [August 20, 2020]

at or around 8:22[.]” (Id.). Bergeron claims that Stevens attested to the fact that he was present

when Wade allegedly served the incident report, but Stevens does not explicitly say he was

present in his statement. Regardless of whether Stevens was present, his written witness

statement does not carry significant weight and does not overcome the live testimony of

McCord—the official who served the report.

Based on the evidence in the record and the witness testimony, I find that McCord

served the incident report to Bergeron on August 20, 2020. (Doc. 4-1 at 9, 20). Bergeron

received the incident report three days before his UDC hearing and seven days before his

DHO hearing. (Id.). The incident report contains the offense, offense date, and facts sufficient

to allow Bergeron to prepare a defense, and thus meets Wolff’s written notice requirement. See

Warnock v. Warden, FCI Ray Brook, No. 22-10771, 2023 WL 3620868, at *2 (11th Cir. May 24,

2023) (citing Dean-Mitchell, 837 F.3d at 1112, 1113 n.5) (“Applying Wolff, we’ve held that the

Due Process Clause entitles inmates to notice not only of the disciplinary charges themselves

and the dates of the alleged offenses, but also to notice of the facts necessary to defend against

the charges.”). If Bergeron did not receive a copy of the incident report, he could have

requested one from Wade or Rich. Bergeron also could have called Stephens as a witness at

his UDC or DHO hearings to attest to the fact that he never received a copy of the incident

report. Because Bergeron was notified of the charge against him in writing at least 24 hours

before the hearing on August 27, 2020, I respectfully submit that Bergeron is not entitled to

relief on Ground One.

b. Ground Two

Moving to Ground Two in which Bergeron claims his guilty finding was based on

falsified evidence or alternatively that the evidence was insufficient. Bergeron argues that the

DHO must have fabricated a medical assessment because the DHO lists a “medical

assessment[] identifying injuries to . . . Bergeron” as evidence of the offense despite the fact

that Bergeron did not see any medical personnel until August 6, 2020. (Doc. 1 at 17–19). In

the DHO report, Rich listed the documentary evidence upon which he based the guilty

finding. The evidence included: “medical assessments,” “photographs,” and “SIS reports.”

(Doc. 4-1 at 21). The DHO report does not specify the date of the medical assessment

identifying injuries to Bergeron. (Id.). The record contains one medical record of a clinical

encounter on August 6, 2020, when Bergeron complained to a provider about jaw pain that

he experienced after being “assaulted in June.” (Id. at 14). Bergeron does not contend that

this medical assessment was fraudulent, but rather believes the DHO report is referring to

another medical assessment that purportedly occurred after the altercation and was

fabricated. During the evidentiary hearing Gallion testified that Bergeron did not receive

medical attention until August 6. Rich further testified that the medical record from August 6

is the “medical assessment” that he relied on, along with the other inmate’s medical

assessment, when weighing the evidence. I find there is no support for Bergeron’s contention

that any evidence was falsified.

Bergeron further contends that there was not enough evidence for the DHO to find

him guilty of fighting. During the evidentiary hearing, Gallion testified that he personally saw

Bergeron after the altercation with offensive injuries on his hands. Gallion photographed

Bergeron’s injuries. These photographs show Bergeron’s irritated, scratched, and bloody

knuckles. (Id. at 10–13). Gallion also testified that there were at least two witnesses to the

incident who corroborated the story that Bergeron and the other inmate fought.6 Rich testified

6 Bergeron seems to contend that the witnesses were not real because Respondent did not provide their

statements or identities, and because the photos of Bergeron taken after the incident say “unwitnessed.”

that he reviewed and relied on the photographs of Bergeron, the witness statements, and the

other inmate’s photographs and medical assessment when making his determination. In

addition, Bergeron acknowledged that he was in an altercation when he sought medical

attention on August 6. (/d. at 14). Rich also reviewed this medical record and considered it

when making his decision. Further, during the hearing, Bergeron did not present any evidence

or witnesses—despite having the opportunity to do so—and when asked about the offense, he

neither confirmed nor denied the charge. (/d. at 21). Thus, there is some evidence in the record

to support the DHO’s finding that Bergeron fought with another inmate. See Hil], 472 U.S. at

456.

Therefore, I respectfully submit that Bergeron is not entitled to relief on Ground Two.

V. Recommendation

Accordingly, I submit that Bergeron’s petition under 28 U.S.C. § 2241 (Doc. 1) should

be DENIED.

Recommended in Ocala, Florida on thos 30" day of October 2024.

he

eg oes

PHILIP R. LAMMENS

United States Magistrate Judge

Respondent claims that “unwitnessed” means “unwitnessed by staff.” Respondent’s assertion is consistent with

Gallion’s testimony that an inmate reported the fight to an official and SIS began investigating and interviewing

inmate witnesses because staff did not witness the incident. The Respondent does not need to provide the

witnesses’ statements because this Court is not required or permitted to conduct an “exhaustive review” of the

findings or reweigh the evidence. See Hill, 472 U.S. at 455-56; Young, 37 F.3d at 1460.

10

COPIES FURNISHED TO:

Presiding District Judge

Counsel of Record

Jonathan S. Bergeron

Courtroom Deputy