NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2217

___________

BRIAN FERNALD,

Appellant

v.

WARDEN RONNIE HOLT

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 10-cv-02473)

District Judge: Honorable John E. Jones III

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 9, 2011

Before: SCIRICA, SMITH AND VANASKIE, Circuit Judges

(Opinion filed: September 29, 2011 )

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OPINION

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PER CURIAM

Brian Fernald, a prisoner at USP Canaan, appeals from an order of the United 

States District Court for the Middle District of Pennsylvania denying his habeas petition 

filed pursuant to 28 U.S.C. § 2241. For the reasons below, we will affirm the District 

Court’s judgment.
2

On November 30, 2009, Fernald was rushed to a hospital with symptoms of a drug 

overdose. When he returned to the prison the next day, Fernald was required to provide a 

urine specimen for testing. The results showed that Fernald tested positive for opiates. 

According to the Health Services Department, Fernald had not been prescribed any 

medication that would have resulted in a positive result. Consequently, Fernald was 

issued an incident report that charged him with using narcotics without a prescription. 

After being provided with written notice of the charge, Fernald appeared before 

the Disciplinary Hearing Officer (“DHO”) and challenged the chain of custody of the 

urine specimen, which had been collected in the shower area of the Special Housing Unit. 

In response to questions from the DHO, Fernald stated that “[L]ieutenant [Mrad] handed 

me the cup. I walked in the shower. I [urinated] in the cup. Officer Dominick retrieved 

the cup and they left.” Fernald emphasized, however, that a chain of custody form was 

not present when he provided the urine specimen, that he was not provided with an 

opportunity to sign a chain of custody form, and that the corrections officers did not sign 

a chain of custody form in Fernald’s presence. To support his allegations, Fernald sought 

to introduce a videotape of the shower area, which he claimed “repudiates the charges.”1 

The DHO denied Fernald’s request, noting that the “video evidence was excluded 

as it was not considered evidentiary in the proceedings.” Instead, the DHO credited other 

evidence presented at the hearing. For example, while Fernald denied being under the 

 

1 We will assume the existence of such a videotape, although the Government has not 

acknowledged that the shower area is subject to video monitoring. 
3

influence of narcotics, he did acknowledge that he was taken to the hospital because he 

was unresponsive and that hospital staff “said it was a possible overdose.” Moreover, the 

DHO cited a memorandum prepared by Lieutenant Mrad, which explained that Fernald 

did not sign the chain of custody form because he admitted that he was still “high” and 

because his “outward actions indicat[ed] that he was under the influence of narcotics.” 

The DHO also noted that Officer Dominick had signed the chain of custody form, 

thereby affirming that “the container was sealed with the tamper-proof seal in my 

presence and that the specimen number provided on th[e] form and on the label affixed to 

the specimen container are the same.” Ultimately, the DHO concluded that Fernald 

committed the charged prohibited act and imposed sanctions, including, inter alia, the 

loss of 40 days of good conduct time. 

Fernald filed a § 2241 petition challenging the loss of good conduct time solely on 

the ground that the DHO violated his due process rights by failing to consider the video 

evidence. The Government filed a response, arguing that the hearing complied with all 

due process requirements. The District Court agreed and denied the habeas petition. 

Fernald appealed. 

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise 

plenary review over the District Court’s legal conclusions and apply a clearly erroneous 

standard to its findings of fact. Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002). 

A complaint challenging the loss of good-time credits is cognizable under § 2241. Queen 

v. Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008).
4

“[A] prisoner has a constitutionally protected liberty interest in good time credit.” 

Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991). Thus, a prisoner facing the loss of 

good-conduct time as a result of an infraction is entitled to certain procedural protections 

in the disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). The 

minimum required protections are: “(1) advance written notice of the disciplinary 

charges; (2) an opportunity, when consistent with institutional safety and correctional 

goals, to call witnesses and present documentary evidence in his defense; and (3) a 

written statement by the factfinder of the evidence relied on and the reasons for the 

disciplinary action.” Superintendent v. Hill, 472 U.S. 445, 454 (1985). “[W]here . . . an 

institution’s record retention policy suggests that documentary evidence exists, and an 

inmate properly requests that the evidence be produced at his/her disciplinary hearing, 

due process requires that the evidence be produced unless the hearing officer makes an 

independent determination that the evidence is not relevant, or if relevant, should not be 

introduced because of overriding penological concerns such as security of the institution 

or safety of prison personnel or other inmates.” Burns v. PA Dept. of Corr., 642 F.3d 

163, 174 n.11 (3d Cir. 2011).

On appeal, Fernald maintains that the “DHO’s failure to consider the videotape 

evidence of the incident violated [his] due process rights.” In support of this argument, 

Fernald cites Piggie v. McBride, 277 F.3d 922 (7th Cir. 2002). Although that case also 

involved a claim that the prison disciplinary board failed to review an exculpatory 

videotape, we agree with the District Court that Fernald’s reliance on Piggie is 
5

unavailing. The primary issue in Piggie was whether the presumption of correctness 

under 28 U.S.C. § 2254(e)(1) applied to the prison superintendent’s finding that the 

petitioner had failed to timely request the videotape at the disciplinary hearing. Id. at 

925. The Court of Appeals vacated and remanded, concluding that the District Court 

itself must make the requisite factual finding. Id. at 926 (holding that “the state may not 

benefit from § 2254(e)(1)’s presumption of correctness in appeals from prison 

disciplinary proceedings.”). In this case, however, as the District Court noted, the “denial 

of habeas relief . . . is not based upon a presumption of correctness as to the DHO’s 

determination that the videotape was not evidentiary.” Rather, the District Court properly 

focused on whether the DHO’s decision was supported by “some evidence.” Hill, 472 

U.S. at 454-56

We conclude that some evidence clearly supports the DHO’s determination. 

Initially, we note that the DHO, not corrections officers, made an independent assessment 

that the videotape was not relevant. Burns, 642 F.3d at 174 & n.11 (“due process 

requires that the evidence be produced unless the hearing officer makes an independent 

determination that the evidence is not relevant”). According to Fernald, the videotape 

would demonstrate that the “officer who collected his urine specimen[] failed to comply 

with the chain of custody requirements.” But the pertinent question is whether “there is 

any evidence in the record that could support the conclusion reached by the disciplinary 

board” that Fernald used narcotics without a prescription. Hill, 472 U.S at 455-56. Here, 

that evidence consisted of Fernald’s admissions that he provided a urine specimen to 
6

Lieutenant Mrad and Officer Dominick one day after being taken to the hospital because 

he was unresponsive due to what the hospital staff characterized as a possible overdose. 

In addition, Officer Dominick affirmed that the specimen was properly sealed and 

labeled, and Lieutenant Mrad explained that Fernald did not sign the chain of custody 

form because he was still under the influence of narcotics. Finally, the laboratory test 

results showed that Fernald tested positive for opiates, which, according to the Health 

Services Department, had not been prescribed to him. Therefore, because the evidence 

supported the DHO’s determination, the District Court properly denied Fernald’s habeas 

petition.2 

For the reasons given, we will affirm the judgment of the District Court.

 

2

To the extent that Fernald raises other due process claims, we note that he 1) received 

an impartial decisionmaker, 2) was given 24-hour advance notice of the charges, 3) had 

an opportunity to call witnesses and present documentary evidence, 4) waived his right to 

assistance from a staff representative, and 5) was provided with a written decision by the 

DHO as to the evidence relied upon and the reasoning behind it. Wolff, 418 U.S. at 563-

67.