For the convenience of the reader of this document in electronic format, 1

hyperlinks to the court’s record and to authority cited herein have been

inserted. No endorsement of any provider of electronic resources is intended

by the court’s practice of using hyperlinks.

-1-

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SAMMY NARANJO, :

Petitioner : CIVIL ACTION NO. 4:09-CV-1470

v. : (MCCLURE, D.J.)

 

RICARDO MARTINEZ, Warden : (MANNION, M.J.)

 

Respondent :

REPORT AND RECOMMENDATION1

I. Procedural Background

On July 30, 2009, the petitioner filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. §2241, naming as the Warden, Ricardo Martinez as the

Respondent. (Doc. 1). The petitioner, proceeding pro se, paid the filing fee.

(Doc. 3). On August 5, 2009, this Court issued an Order to Show Cause

directing the respondent to show cause as to why the petitioner should not be

granted relief. (Doc. 4). On August 25, 2009, the respondent filed a Response

to the petition. (Doc. 5). On September 22, 2009, the petitioner filed a Motion

for an Extension of Time in which to file a Traverse to the Response, which was

granted on September 28, 2009. (Doc. 6 and Doc. 7). However, on October 19,

2009, the petitioner filed a Notice that he would not be filing a Traverse to the

Response to the Petition for Habeas Corpus. (Doc. 8). 

The petitioner is currently confined at the United States Penitentiary in

White Deer, Pennsylvania (“USP Allenwood”). He is serving a 216 month term

Case 4:09-cv-01470-JFM Document 9 Filed 04/28/10 Page 1 of 7
-2-

of imprisonment for Conspiracy to Distribute and Possession with Intent to

Distribute Marijuana, 21 U.S.C. §846; Conspiracy to Money Launder, 18 U.S.C.

§1956(h); and Uttering False Statements, 18 U.S.C. §1001. He is scheduled

to be released on November 10, 2014, via full term release. (Doc. 5, Ex. 1).

By way of background, the petitioner was notified on July 20, 2006 while

he was incarcerated at the United States Penitentiary in Coleman, Florida, that

he was required to provide a urine sample. (Doc. 1 at 1; Doc. 5, Ex. 1, Att. B).

The petitioner complied with the order and his specimen was sent to the

National Toxicology Laboratories for testing. Id. On August 4, 2006, the Bureau

of Prisons (“BOP”) received notification that his specimen had tested positive

for the presence of opiates/morphine. (Doc. 1 at 1; Doc. 5, Ex. 1, Att. B). 

On August 6, 2006, the Health Services staff reviewed the petitioner’s

medical records and determined he had not been prescribed any medication

that would yield a positive result for opiates/morphine. (Doc. 5, Ex. 1, Att. C).

At approximately 4:30 P.M., Intelligence Officer R. Evans charged the petitioner

with a narcotics violation pursuant to Disciplinary Code 112. (Doc. 5, Ex. 1, Att.

B). On that same day, August 6, 2006, the petitioner was provided with a copy

of Incident Report No. 1498248. (Doc. 1; Doc. 5, Ex. 1, Att. B). 

On September 7, 2006, the Unit Disciplinary Committee (“UDC”) held a

disciplinary hearing in which the petitioner was afforded the opportunity to make

a statement, but chose not to do so. (Doc. 5, Ex. 1, Att. B). He was advised

of his rights and signed an Inmate Rights at Disciplinary Hearing form

acknowledging that he was advised of his rights. (Doc. 5, Ex. 1, Att. D). After

advisement, he waived his right to a staff representative and to call witnesses.

(Doc. 5, Ex. 1, Att. E). Due to the serious nature of the charges, the UDC

referred the matter to the Disciplinary Hearing Officer (“DHO”) for a further

hearing and decision. (Doc. 5, Ex. 1, Att. B).

On September 20, 2006, the petitioner’s DHO hearing was held.

Case 4:09-cv-01470-JFM Document 9 Filed 04/28/10 Page 2 of 7
-3-

Petitioner indicated that he received a copy of the Incident Report, that he was

advised of his rights and that he understood him. (Doc. 5, Ex. 1, Att. F). The

petitioner stated that he was ready to proceed. Id. The petitioner did not provide

any witnesses or documentary evidence, even though he was provided with an

opportunity to do so. (Doc. 5, Ex. 1, Att. F). After consideration of the evidence,

including the Incident Report, the Investigation, the National Toxicology Lab

Report, a chain of custody form, and a memorandum from the Health Services

Department, the DHO determined that the petitioner was guilty of violating

Code 112. (Doc. 5, Ex. 1, Att. F). The DHO documented that he also

considered the petitioner’s statement where the petitioner admitted to the

charge, stating “Guilty.” (Doc. 5, Ex. 1, Att. F). As a result of this violation, the

DHO ordered that the petitioner 1) receive 30 days in disciplinary segregation;

2) lose 27 days good conduct time; and 3) lose visitation privileges for 180 days

(followed by 180 days of immediate family visits only). (Doc. 5, Ex. 1, Att. F).

For the reasons set forth below, it is recommended that the petition be

DENIED.

II. Claims in the Habeas Petition.

The petitioner essentially claims that the Bureau of Prisons (“BOP”) staff

at the United States Penitentiary in Coleman, Florida denied him due process

of the law when they failed to provide him with a copy of an Incident Report

charging him with a Disciplinary Code 112 violation within 24 hours. (Doc. 1 at

7 ). The petitioner also alleges that the BOP attempted to cover up their failure

to provide a timely report by filing a memorandum extending the time to hold

a disciplinary hearing. (Doc. 1 at 7).

The petitioner requests that this court “generate an Order to the Bureau

of Prisons to expunge the record of the ‘Incident Report’ and restore the 27

days of good time that was lost in this matter.” (Doc. 1 at 7).

Case 4:09-cv-01470-JFM Document 9 Filed 04/28/10 Page 3 of 7
-4-

III. Discussion

The petitioner claims that the BOP violated his due process rights when

they failed to give him the Incident report within 24 hours. (Doc. 1). 

In Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974), the Supreme Court

identified the minimum procedural due process rights to be afforded a prisoner

accused of misconduct which may result in loss of good conduct time. Those

rights are applicable in the instant case. The prisoner has (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

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; McRae v.

Holt, Civil No. 08-0346, M.D. Pa.; Redding v. Holt, 2007 WL 2155543, *6 (M.D.

Pa.). 

 In Redding, the Court stated:

The Bureau of Prisons (“BOP”) has specific procedures for inmate

discipline pursuant to 28 C.F.R. § 541.10, et seq. The regulations,

in relevant part, provide:

[I]f the DHO finds that the inmate has committed a prohibited

act(s) other than the act(s) charged, then the DHO shall

record those findings clearly and shall change the Incident

Report to show only the incident and Code references to

charges which were proved.

§ 541.17(f). 

In Wolff v. McDonnell, 418 U.S. 539, 563-67, 94 S.Ct. 2963, 41

L.Ed.2d 935 (1974), the United States Supreme Court described

the constitutional due process requirements for prison disciplinary

Case 4:09-cv-01470-JFM Document 9 Filed 04/28/10 Page 4 of 7
-5-

proceedings implicating the infringement of a cognizable liberty

interest, such as the loss of good time credits. In relevant part,

Wolff requires an inmate to receive at least twenty-four (24) hours

notice of the alleged violations in writing. Id. at 564. The Court

observed, “[T]he function of notice is to give the charged party a

chance to marshal the facts in his defense and to clarify what the

charges are, in fact.” Wolff, 418 U.S. at 563-67. Additionally, the

fact finder must state in writing the evidence relied upon and the

reasons for the disciplinary action. Id.

In addition to the due process requirements set forth in Wolff with respect

to cases involving loss of good conduct time, the Court in Williams v. Hislop,

2007 WL 4111427, *4 (M.D.Pa. 2007), outlined the Bureau of Prisons’ inmate

disciplinary procedures:

The Bureau of Prisons’ inmate disciplinary procedures are

codified at 28 C.F.R. §541, et. seq., and entitled, Inmate

Discipline and Special Housing Units. These procedures are

intended to meet or exceed the due process requirements

prescribed by the Supreme Court. See Von Kahl v. Brennan,

855 F.Supp. 1413, 1418 (M.D.Pa.1994). Pursuant to these

regulations, staff shall prepare an Incident Report when there

is reasonable belief that a violation of BOP regulations has

been committed by an inmate and the staff considers

informal resolution of the incident inappropriate or

unsuccessful. 28 C.F.R. §541.14. The incident is then

referred to the UDC for an initial hearing pursuant to

§541.15. The UDC hearing is “ordinarily held within three

work days from the time staff became aware of the inmate’s

involvement in the incident” and does not include the initial

day staff learns of the incident, weekends, or holidays. See

28 C.F.R. § 541.15(b). ... If the UDC finds that a prisoner has

committed a prohibited act, it may impose minor sanctions.

If the alleged violation is serious and warrants consideration

for more than minor sanctions, or involves a prohibited act

listed in the greatest severity category, the UDC must refer

Case 4:09-cv-01470-JFM Document 9 Filed 04/28/10 Page 5 of 7
-6-

the matter to a disciplinary hearing officer for a hearing. 28

C.F.R. §541.15. “The DHO shall give the inmate a written

copy of the decisions and disposition, ordinarily within 10

days of the DHO’s decision.” 

28 C.F.R. §541.17(g).

In the present case, it is clear that the petitioner was afforded all the

rights set forth in Wolff and in the BOP’s regulations. The BOP staff became

aware that the petitioner’s urine specimen tested positive for opiates/morphine

on August 4, 2006. However, since they were unsure whether this result could

be caused by prescribed medication, they had Health Services review his

medical records. According to the evidence of record, Health Services reviewed

the petitioner’s records on August 6, 2006. The staff became aware that the

petitioner could be charged with a violation of Code 112 on this date and

immediately notified the petitioner. The petitioner was issued Incident Report

No. 1498238 on August 6, 2006, charging him with a violation of BOP

Disciplinary Code 112, Use of Any Narcotic. (Doc. 5, Ex. 1, Att. B). Thus, the

respondent is correct that the BOP did not violate any BOP policy or regulation.

There is no other alleged evidence of a violation of due process. The

Petitioner received 45 days advanced notice of his hearing with the DHO, well

beyond the 24 hour required notice as outlined in Wolff. He had ample

opportunity to prepare his defense. He had the opportunity to call witnesses

and present documentary evidence but failed to do so. He did not request

assistance from a staff representative during his hearing. The DHO issued a

decision outlining the evidence relied upon and the rationale behind his action.

(See Doc. 5, Ex. 1, Att. F). Thus, there is no evidence of a due process

violation.

Lastly, the petitioner further claims that the BOP engaged in fraud by

back-dating a signed memorandum by the warden which extended the time for

Case 4:09-cv-01470-JFM Document 9 Filed 04/28/10 Page 6 of 7
-7-

his UDC hearing. He claims that the date on the memorandum is within the

proper time frame for an extension but that the memorandum was actually

typed and entered into the computer well after the three day grace period had

expired. He cites 28 C.F.R. §541.15(b). He claims that it is possible for any

BOP employee to “go into the computer and draft a memorandum with

whatever date they desire on it.” However, he fails to offer any evidence that

anyone altered the time on this document and acknowledges that the time is

correct. Insofar as he cites a three day grace period, the DHO noted that his

hearing was held late due to his Incident Report being suspended for further

investigation. The DHO noted that this was explained to the petitioner at the

UDC hearing and the DHO hearing. The DHO stated that there was a signed

memorandum by the warden granting this extension and the petitioner fails to

provide any evidence that this memorandum was falsified. The DHO also noted

that this delay in hearing would not hinder the petitioner’s due process rights.

This appears correct, as the delay gave the petitioner more time to prepare his

defense and he does not claim that this hindered his due process rights. 

IV. Conclusion

For the foregoing reasons, IT IS HEREBY RECOMMENDED THAT the

petition for writ of habeas corpus be DENIED.

s/ Malachy E. Mannion 

MALACHY E. MANNION

United States Magistrate Judge

DATE: April 28, 2010

O:\shared\REPORTS\2009 Reports\09-1470-01.wpd

Case 4:09-cv-01470-JFM Document 9 Filed 04/28/10 Page 7 of 7