NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

JAMES E. DOUGLAS, :

 :

Petitioner, :

 :

v. :

 :

WARDEN DONNA ZICKEFOOSE, :

:

 Respondent. :

 :

 Civil No.: 11-406 (JBS)

O P I N I O N

APPEARANCES:

JAMES E. DOUGLAS, Petitioner Pro Se

#09394-032

F.C.I. Fort Dix

East P.O. Box 2000

Fort Dix, NJ 08640

JOHN ANDREW RUYMANN, AUSA

OFFICE OF THE U.S. ATTORNEY

402 East State Street, Suite 430

Trenton, New Jersey 08608

Counsel for Respondent

SIMANDLE, District Judge

On or about January 24, 2011, petitioner, James E. Douglas

(“Petitioner”), filed this petition for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2241, in which he challenges sanctions

imposed as the result of a prison disciplinary infraction. 

Petitioner asks the Court to expunge the disciplinary sanctions

imposed against petitioner. The named respondent is FCI Fort Dix

Warden Donna Zickefoose. Respondent answered the petition on

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March 24, 2011, and provided a copy of the pertinent

administrative record. (Docket Entry No. 8). On May 10, 2011, 

Petitioner filed a traverse or objections to the Warden’s answer. 

(Docket Entry No. 11).

I. BACKGROUND

Petitioner challenges a June 6, 2007 prison disciplinary

finding, which resulted in the loss of 41 days good conduct time

(“GCT”) and telephone privileges for one year. Petitioner seeks

to have the disciplinary record expunged and his GCT restored.

Petitioner is presently serving a 131-month prison sentence

imposed by the United States District Court for the Eastern

District of Kentucky, on August 23, 2005, following his

conviction for conspiracy to distribute crack cocaine, in

violation of 21 U.S.C. § 846. Petitioner’s projected release

date is May 15, 2015, assuming he receives all good conduct time

(“GCT”) available to him under 18 U.S.C. § 3624(b). (See

Declaration of Tara Moran, Exhibit 1).

On September 16, 2005, Petitioner was designated to serve

his federal sentence at the FMC Lexington in Lexington, Kentucky.

(Moran Decl., Ex. 3). The incident at issue in this habeas

petition occurred in 2007 at FMC Lexington. In particular, on

June 8, 2007, Petitioner was issued an incident report, number

1607818, for possession of a hazardous tool, Code 108, based on

the discovery of a cell phone charger in his assigned cell on

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March 2, 2007. (Moran Decl., Ex. 4 [Incident Report]). In

particular, the Incident Report reads:

(Date: 06-08-2007 2:30 p.m. Staff became aware of incident) 

On Friday, June 8, 2007, an SIS investigation concluded 1

which revealed you, inmate James Douglas #09394-032,

possessed a Pantech mobile travel (cell phone) charger

within the confines of this institution. Specifically, on

March 2, 2007, the SIS office monitored a recorded call made

by you, to (859) 624-0677, on February 18, 2007, at 9:47

a.m. The pursuant conversation revealed you placed a

separate call to (859) 624-0677 on February 18, 2007, prior

to the 9:47 a.m. call. However, INTRUDR call records

clearly document only one call made by you to (859) 624-0677

on February 18, 2007. As a result, the other call could

have only been accomplished through the use of a non-inmate

phone. Additionally, a search of your room (Y05-303U) was

conducted subsequent to the monitoring of your February 18,

2007 call. During the search, a Pantech mobile travel

charger was found in the four man room (Y05-303U) you

occupied on Younity Unit.

(See Moran Decl., Ex. 4 at ¶ 11).

The incident report was prepared on June 8, 2007, at 2:30

p.m., and delivered to Petitioner on June 8, 2007 at 6:35 p.m. 

(Moran Decl., Ex. 4 at ¶¶ 12-16). 

The incident report indicates that an investigation or

interview of Petitioner began on June 12, 2007 at 6:26 p.m. The

investigating officer read Petitioner his rights. Petitioner

stated that he understood his rights and declared that “I am

innocent of all charges in this incident report.” The interview

concluded at 6:35 p.m. and the investigating officer referred the

matter to the Unit Disciplinary Committee (“UDC”) and stated that

 “SIS” refers to the Special Investigative Service. 1

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Petitioner would remain in administrative detention. (Moran

Decl., Ex. 4 at Part III- Investigation, ¶¶ 22-27).

The initial hearing was conducted before the UDC on June 14,

2007. (Moran Decl., Ex. 4 at ¶ 21). The hearing was held past

the typical three working day time period because the incident

report was not released to the UDC by the SIS until June 13,

2007. (Moran Decl., Ex. 5 - “Advisement of Incident Report

Delay(s),” dated and signed June 14, 2007). At the UDC hearing,

Petitioner denied the charge and again stated that he was

innocent. (Moran Decl., Ex. 4 at ¶ 17). The UDC recommended

loss of the maximum amount of good conduct time (“GCT”), 30 days

disciplinary segregation and loss of commissary, and referred the

incident report to the Disciplinary Hearing Officer (“DHO”) for

disposition. (Moran Decl., Ex. 4 at ¶ 20).

On June 14, 2007, Petitioner was advised of his rights

before the DHO. Petitioner requested a staff representative at

the DHO hearing, but did not ask for any witnesses at that time. 

(Moran Decl., Ex. 6 - Notice of Discipline Hearing Before the

Disciplinary Hearing Officer). However, the DHO hearing was not

held on June 14, 2007 because the incident report was rewritten. 

(Moran Decl., Ex. 7 - rewritten Incident report).

On July 19, 2007, Petitioner was issued the rewritten

incident report. The reporting employee, James W. Buckner,

Special Investigation Technician, stated as follows:

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This is a re-write of Incident Report #1607818, originally

written on July 11, 2007. On Friday, March 2, 2007, at

approximately 8:30 a.m., a search of your assigned room

(Y05-303U) in Younity Unit was conducted. During the

search, staff recovered/seized a Pantech mobile travel (cell

phone) charger. The cell phone charger was found inside a

bag on top of inmate George Poteat’s locker within the room. 

On July 10, 2007, additional information was received which

necessitated the rewrite of this report as well as the

writing of three additional Incident Reports associated with

this incident.

(Moran Decl., Ex. 7 at ¶ 11).

The rewritten incident report was completed on July 19,

2007, at 8:30 a.m., and was delivered to Petitioner at 3:47 p.m.

on the same day. (Moran Decl., Ex. 7 at ¶¶ 12-16). Petitioner

was read his rights and told the investigating officer that he

was innocent of the charges. (Id., ¶¶ 23-24).

The initial UDC hearing was held on July 24, 2007. (Moran

Decl., Ex. 7 at ¶¶ 17-21). At the UDC hearing, Petitioner was

given another “Advisement of Incident Report Delay(s)”, which

indicated that the report was delayed due to a significant

ongoing parallel investigation that was completed on July 11,

2007, and the rewrite was completed July 19, 2007. (Moran Decl.,

Ex. 8). Petitioner denied the charges at the UDC hearing and

told the UDC that he was innocent. (Moran Decl., Ex. 7 at ¶ 17). 

The UDC recommended that the matter be referred to the DHO for

hearing. (Id., Ex. 7 at ¶ 20). Also, on that date, Petitioner

requested a staff representative to represent him at the DHO

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hearing, as well as witnesses to be called to testify on his

behalf at the DHO hearing. (Id., Ex. 9).

The DHO hearing was held on August 16, 2007. (Moran Decl.,

Ex. 10 - DHO Report). Petitioner’s staff representative was

present. The DHO report summarized Petitioner’s statement at the

hearing as follows: “I’m innocent. The cell phone charger is not

mine and I don’t know who the charger belongs to. I don’t know

anybody who would want to set me up.” (Id., Ex. 10 at Section

III).

An inmate witness also testified on Petitioner’s behalf at

the DHO hearing. The witness stated: “I know nothing about a

cell phone or cell phone charger. There are other inmates who

have access to Douglas’ room because there are no locks on the

doors. Douglas has a bathroom in his room and other inmates not

assigned to the room use the bathroom.” (Id., Ex. 10 at Section

III.C.2). The DHO denied Petitioner’s request for other

witnesses to testify at his hearing on the following grounds:

J. Buckner, SIS Tech, was the report writer and his

knowledge of the incident was summarized in Section Eleven

of the Incident Report and further clarification on the

issue was not necessary.

Inmates D. Outlaw #04035-028, G. Poteat #22855-001, were not

called by the DHO because the information you requested they

attest to had no relevance to the hearing. That is, you

stated each witness would be able to testify, “You were not

in the room when the cell phone charger was found.” Whether

or not you were in the room when the cell phone charger was

found by staff, does not change or discredit what the

officer found or where the officer found it. Additionally,

there was no evidence that any of the occupants who were

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assigned to the room at the time of the incident were

present when the staff found the cell phone charger.

As part of your written statement presented to the DHO, you

requested an outside witness, Virgie Douglas (your wife) to

be called as a witness. The DHO also considered her

testimony irrelevant. Again, any testimony provided by her

does not change or discredit what the officer found or where

the officer found it. Furthermore, your submitted questions

refer to your initial incident report, not the rewrite.

(Moran Decl., Ex. 10 at Section III.C.4).

At the conclusion of the hearing, the DHO found that

Petitioner had committed the act as charged. (Moran Decl., Ex.

10 at Section IV.A). The DHO set forth his finding as follows:

... The DHO found you committed the prohibited act of

possession of a hazardous tool (cell phone charger), Code

108. The finding is based in part on the written statement

of J. Buckner, SIS Tech, who attests that on Friday, March

2, 2007, at approximately 8:30 a.m., a search of your

assigned room (Y05-303U), in Younity Unit was conducted. 

During the search, staff recovered/seized a Pantech mobile

travel (cell phone) charger. The cell within the room. On

July 10, 2007, additional information was received which

necessitated the rewrite of this report as well as the

writing of three additional incident reports associated with

this incident.

I considered the statement of your requested witness, Inmate

Moon. He stated, He knew nothing about a cell phone or cell

phone charger. He did state that other inmates have access

to your room because there are no locks on the doors. He

further stated, You have a bathroom in your room and other

inmates not assigned to your room use the bathroom.

The DHO showed you and considered as evidence the witness

statement of M. Blair, Case Manager, who attests that on

March 2, 2007, at 8:20 a.m., SIS Tech J. Buckner contacted

him about a possible cellular telephone on Younity Unit. He

then requested the assistance of correctional officer

Constance Mosley to accompany him to the four man room (303-

304) on Younity Unit. At approximately 8:30 a.m., while

conducting a shakedown of the room, Officer Mosley

discovered a bag with what appeared to be a cellular

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telephone charger inside. The bag was found in plain view

on top of the locker of inmate Poteat.

The DHO showed you and considered as evidence the written

statement of C. Mosley, SOS, who attests at approximately

8:30 a.m., Mr. Blair requested her assistance with a

shakedown. While searching your room, she found a package

which appeared to be a cell phone charger. The package was

located out in the open on top of the locker of inmate

Poteat. No other items were found.

The DHO showed you and considered as evidence two

photographs depicting on Pantech cellular phone charger.

I considered your statement to me during your DHO hearing. 

You stated, I’m innocent. The cell phone charger is not

mine and I don’t know who the charger belongs to. I don’t

know anybody who would want to set me up. However, you

provide no evidence other than you say it is so. I find

your claim not credible for several reasons.

As I informed you during your hearing, you are responsible

for ensuring your area of responsibility is free of

contraband. In other words, inmates are expected to ensure

there is no contraband in their room or cells. The DHO

notes correctional staff conducted a search and found a cell

phone charger concealed in a bag located on top of a locker

inside your cell. Your daily access to your cell is some

evidence you had constructive possession of the cell phone

charger. In this case, the charger was reasonably

accessible to you, as it was discovered by staff inside your

cell. Furthermore, your responsibility for ensuring your

cell was free of contraband established your culpability in

this incident.

In your written statement, you contend “A charger is no more

hazardous than the packaging in which the phone comes in.” 

I disagree. The “packaging” of a cell charger cannot charge

a cell phone and make the cell phone operational. It’s more

reasonable to believe a cell phone charger is an integral

component of a cell phone and without the charging

component, the cell phone itself would become inoperable

after the initial charge and rendered useless. Thus, a cell

phone charger is considered a hazardous tool. You also

contend in your written statement that your room has a

community bathroom where any of 200 inmates have access to. 

Although you and your witness claimed other inmates had

access to your room and the bathroom inside your room, you

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provided no evidence to indicate another inmate would have a

reason or a motive to place a cell phone charger in your

room. The DHO notes the charger was concealed in a small

bag to avoid detection and you had daily access to the area

where the cell charger was found. It’s more reasonable to

believe the cell charger belonged to you or one of your

three cell-mates; Just as I would believe a pair of tennisshoes would belong to you or one of your cell-mates if found

in your room, and not some anonymous inmate who lived down

the hall. The DHO notes each room om Y05 (D-Wing) has a

bathroom inside the room, except for one room. In the

latter case, the inmates assigned to the room with no

bathroom are instructed to use the common area bathroom. 

You provided no evidence other than your statement, and the

statement of your witness, that other inmates use your

bathroom. It’s reasonable to believe the other inmates on

D-Wing use the bathroom inside their room, or the common

area bathroom. There is no reason for inmates not assigned

to your room to use your bathroom. Additionally, you and

your cell-mates are responsible for the cleaning of your

bathroom and it’s not reasonable to believe you would permit

any inmate to use it.

I find it relevant neither you or any of your cell-mates

claimed ownership of the cell phone charger. This indicated

to me none of you were willing to accept accountability or

responsibility for your actions.

Additionally, the DHO notes J. Buckner, SIS Tech, and

officers Mosley and Blair have a legal and moral obligation

to tell the truth concerning acts of misconduct by inmates. 

They have absolutely nothing to gain by falsifying their

account of this incident. You on the other hand, are facing

disciplinary action and would have reason to falsify your

account or minimize your culpability in the incident. The

DHO finds the eye-witness accounts of J. Buckner, C. Mosley,

and M. Blair more credible than your account of this

incident. 

Therefore, the DHO finds the greater weight of the above

listed evidence supports you committed the prohibited act of

possession of a hazardous tool (cell phone charger), Code

108.

(Moran Decl., Ex. 10 at Section V).

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The DHO sanctioned Petitioner to 30 days disciplinary

segregation, disallowance of 41 days GCT, one year loss of

telephone privileges, and recommended disciplinary transfer. 

(Moran Decl., Ex. 10 at Section VI). The DHO Report states that

the sanctions were imposed because possession of components of a

cell phone in any correctional facility seriously jeopardizes the

security of the institution and poses a threat to staff and

inmates. (Id., Ex. 10 at Section VII).

A copy of the DHO Report was given to Petitioner on August

31, 2007. (Id., Ex. 10 at Section IX). Petitioner duly and

timely exhausted his administrative remedies in appealing the DHO

decision. On November 30, 2007, the Regional Director denied

Petitioner’s appeal on the following grounds:

You appeal the DHO decision of August 16, 2007, for

Possession of a Hazardous Tool (Code 108). You claim the

UDC hearing was conducted in an untimely manner. You allege

the DHO did not call your requested witnesses and your due

process rights were violated. You request the incident

report be expunged.

P.S. 5270.07, Inmate Discipline and Special Housing Units,

provides that the DHO shall consider all evidence presented

at the hearing. The decision of the DHO shall be based on

at least some facts, and if there is conflicting evidence,

it must be based on the greater weight of the evidence. The

DHO found that you committed the prohibited act based on the

greater weight of the evidence to include the reporting

staff member’s statement, as accurately and adequately

stated in Section V of the DHO report, and we find no reason

to elaborate further.

P.S. 5270.07, also provides that staff shall provide each

inmate charged with violating a Bureau rule a written copy

of the charge(s) against the inmate, ordinarily within 24

hours of the time staff became aware of the inmate’s

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involvement in the incident. You received the incident

report within the 24 hour time frame, on the date the SIS

investigation was concluded and the incident report was

completed and you received another copy on the same date the

incident report was rewritten. When it appears that an

extension of time limits is necessary , the UDC is to ensure

that the inmate is advised of the delay, including, where

appropriate, the reasons for the delay. The Warden signed a

memorandum authorizing the discipline process to continue

beyond the ordinary time frames. This memorandum cited the

various reasons for the delay. You do not provide, nor do

we find, any evidence that your defense of the charges

against you was hindered in any way due to this procedural

delay.

P.S. 5270.07, provides that witnesses must provide relevant

testimony. The DHO shall document reasons for declining to

call requested witnesses in the DHO report. The DHO did not

call your requested inmate witnesses as he deemed the

testimony to be irrelevant and he determined that the

requested staff witness’ testimony to be accurately

summarized in the incident report and was adverse. A review

of the disciplinary record revealed that the DHO properly

detailed the reason for not calling your witnesses.

We find the require disciplinary procedures were

substantially followed, the evidence supports the DHO’s

finding, and the sanctions were appropriate for the offense.

You do not provide, nor do we find, any evidnece that your

due process rights were violated.

(Moran Decl., Ex. 2).

Petitioner thereafter appealed the Regional Director’s

ruling to the National Inmate Appeals. The Administrator Harrell

Watts denied the appeal in a written decision dated February 28,

2008. (Id.). Specifically, Watts found:

You appeal the August 16, 2007, decision of the Discipline

Hearing Officer (DHO) in which you were found to have

committed the prohibited act of Possession of a Hazardous

Tool (code 108). You contend the incident report (IR)

should be expunged for lack of evidence, untimely rewrites

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of the IR, and an untimely unit disciplinary committee

(UDC).

Our review of your disciplinary proceedings indicates

substantial compliance with Program Statement (PS) 5270.07,

Inmate Discipline and Special Housing Units. We reviewed

the evidence and found the DHO’s decision was reasonable and

based upon the greater weight of the evidence as detailed in

Section V of the DHO report. Our review revealed staff

substantially respected and preserved your due process

rights, adhered to the required disciplinary procedures, and

imposed appropriate sanctions as identified in Chapter 4 of

the PS.

You deny responsibility, claiming everyone had access to

your cell. We are inclined to believe the conclusions drawn

by staff, taking particular note of the DHO’s whittling away

of your excuses. We also considered the findings staff made

when reviewing a recording of your ITS call. The recording

apparently revealed you had made another call to the same

phone number that day. Yet, it could not be located in the

ITS records. This, along with the presence of the cell

phone charger and the fact neither you nor your cell mates

assumed responsibility sufficiently diminished your

credibility, yielding greater weight to the accounty by

staff.

Lastly, the reporting staff are obligated to be truthful and

do not gain anything by submitting false reports. They are

also obligated to submit accurate statements and correct

reports if necessary. We find the delays were adequately

explained, discussed, and documented throughout the

disciplinary process. We note, such delays do not warrant

expungement of an IR and it is quite apparent you did not

experience any hindrances in mustering a defense against the

charge or appealing the decision. We concur with the DHO

decision you committed the prohibited act. Accordingly,

your appeal is denied.

(Moran Decl., Ex. 2).

Petitioner filed this habeas petition on or about January

24, 2011. The Government responded to the petition on March 24,

2011, and attached the relevant administrative record. 

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Petitioner filed a traverse or reply to the Government’s answer,

on or about May 10, 2011.

The petition asserts that Petitioner’s due process rights

were violated as follows: (1) Petitioner argues that the incident

report was written more than 24 hours after the staff became

aware of the alleged violation of Code 108, and that there was

insufficient explanation for the delay. (2) He further claims

that his initial UDC hearing did not occur within the required 72

hour time frame under the rules. (3) Petitioner alleges that he

was prevented from calling witnesses at his DHO hearing without

adequate explanation. (4) Petitioner alleges that not all

documentary evidence relied upon by the DHO were provided to him

at the hearing. (5) The rewritten incident report was not

delivered to Petitioner in a timely manner. (6) The DHO decision

was not based on “some evidence.” (7) Petitioner’s double

jeopardy rights were violated by the issuance of a second

rewritten incident report for the same charge. (8) Petitioner

states that Officer Blair could not take part in the

investigation if he was involved in the incident, namely, having

found the cell phone charger. (9) Petitioner was not provided

notice that the punishment for the charged misconduct had been

increased from a moderate level violation (Code 305) to a greater

severity level violation (Code 108), and that this increase

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changed the legal consequences of the act affecting his good time

credits. 

II. DISCUSSION

A. Standard of Review

Petitioner seeks a writ of habeas corpus pursuant to 28

U.S.C. § 2241(c)(3). That section states that the writ will not 2

be extended to a prisoner unless “he is in custody in violation

of the Constitution or laws or treaties of the United States.” 

28 U.S.C. § 2241(c)(3).

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. See Estelle v. Gamble,

429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520

(1972). A pro se habeas petition and any supporting submissions

must be construed liberally and with a measure of tolerance. See

Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.

Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United

States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert.

denied, 399 U.S. 912 (1970).

 United States Code Title 28, Section 2241, provides in 2

pertinent part:

(a) Writs of habeas corpus may be granted by the

district courts within their respective jurisdictions

(c) The writ of habeas corpus shall not extend to a

prisoner unless- (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States.

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B. Applicable Regulations

The Federal Bureau of Prisons (“BOP”) has specific

guidelines for inmate disciplinary procedures, which are codified

at 28 C.F.R. § 541.10 et seq. Prohibited acts are categorized

according to the severity of the conduct. Code Level 100s are

deemed the “Greatest”, code level 200s as “High”, and proceeding

to 400 level codes as “Low Moderate.” The Prohibited Acts Code

and Disciplinary Severity Scale is set forth at 28 C.F.R. §

541.13 Tables 3-5. Incident reports are prepared in accordance

with § 541.14 and are referred to the UDC for an initial hearing

pursuant to § 541.15.

The UDC hearing is typically conducted within three working

days of the incident, but may be extended for good cause pursuant

to § 541.15(b) and (k). The UDC may refer the matter to the DHO

for further proceedings pursuant to § 541.15(f). In this case,

referral of the incident report to the DHO was mandatory under §

541.13(a)(2), because the charge was designated as a “High”

category offense and the UDC does not have the authority to

disallow good conduct time. Disallowance of good conduct time

credits for high category offenses, pursuant to Sanction B.1 in

Table 3, must be imposed under 28 C.F.R. § 541.13(a)(2).

DHO hearing procedures are set forth at § 541.17. These

procedures require the following: (a) 24-hour advance written

notice of charge before inmate’s initial appearance before the

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DHO; this right may be waived, § 541.17(a); (b) an inmate shall

be provided a staff representative at the DHO hearing, if so

desired, § 541.17(b); (c) an inmate is entitled to make a

statement and to present documentary evidence at the DHO hearing;

the inmate may also call witnesses to testify on his behalf, but

may not himself question the witnesses, § 541.17(c); (d) the

inmate is entitled to be present throughout the hearing, except

during a period of deliberation or when institutional security

would be jeopardized, § 541.17(d). The DHO shall prepare a

record of the proceedings that documents the advisement of the

inmate’s rights, the DHO’s findings, the DHO’s decision, the

specific evidence relied upon by the DHO, and a brief statement

of the reasons for imposition of sanctions. 28 C.F.R. §

541.17(g). A written copy of the DHO’s decision and disposition

must be provided to the inmate ordinarily within 10 days. Id.

These procedures are intended to meet or exceed the due

process requirements prescribed by Wolff v. McDonnell, 418 U.S.

539 (1974). See Von Kahl v. Brennan, 855 F. Supp. 1413, 1418

(M.D. Pa. 1994).

C. Merits of Petitioner’s Claims

1. There Was No Denial of Procedural Due Process

The Due Process Clause of the Fifth or Fourteenth Amendments

provides that liberty interests of a constitutional dimension may

not be rescinded without certain procedural protections. U.S.

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CONST. amend. XIV. In Wolff v. McDonnell, supra, the Supreme

Court set forth the requirements of due process in prison

disciplinary hearings. An inmate is entitled to (1) written

notice of the charges and no less than 24 hours to marshal the

facts and prepare a defense for an appearance at the disciplinary

hearing; (2) a written statement by the fact finder as to the

evidence relied on and the reasons for the disciplinary action;

and (3) an opportunity "to call witnesses and present documentary

evidence in his defense when to do so will not be unduly

hazardous to institutional safety or correctional goals." Wolff,

418 U.S. at 563-71. An inmate is also entitled to an inmate

representative in some cases, and a written decision by the

factfinder as to evidence relied upon and findings. See Von

Kahl, 855 F. Supp. at 1418 (citing Wolff, 418 U.S. at 563-72). 

However, in Wolff, the Supreme Court held that, while prisoners

retain certain basic constitutional rights, including procedural

due process protections, prison disciplinary hearings are not

part of criminal prosecution, and an inmate’s rights at such

hearings may be curtailed by the demands and realities of the

prison environment. Id. at 556-57; Young v. Kann, 926 F.2d 1396,

1399 (3d Cir. 1991). 

Here, Petitioner makes several allegations concerning the

timeliness of notice to the charges and the delay in the

investigation and completion of the both the initial incident

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report and the rewritten report, as well as the delay in holding

his UDC hearing. In particular, Petitioner alleges (1) that the

incident report was written more than 24 hours after the staff

became aware of the alleged violation of Code 108, and that there

was insufficient explanation for the delay; (2) that his initial

UDC hearing did not occur within the required 72 hour time frame

under the rules; and (3) that the rewritten incident report was

not delivered to Petitioner in a timely manner. The Court finds

no due process violations as contemplated under Wolff or Von Kahl

with respect to Petitioner’s timeliness claims.

In this case, both the initial incident report and the

rewritten incident report were completed more than 24 hours after

staff became aware of Petitioner’s involvement in the incident. 

Under 28 C.F.R. § 541.15(a), an inmate should receive written

notice of the charges against him “ordinarily within 24 hours of

the time staff became aware of the inmate’s involvement in the

incident.” Here, the cell phone charger was found on March 2,

2007, but the investigation of the incident did not conclude

until June 8, 2007. Once the investigation concluded, the

initial incident report was written and delivered to Petitioner

on June 8, 2007. Similarly, the rewritten incident report was

delivered to Petitioner in a timely manner. As indicated by the

record, additional information was received concerning the

incident on July 10, 2007, which necessitated a re-write of the

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incident report as well as necessitating preparation of three

additional incident reports associated with the incident. The

incident report was rewritten on July 19, 2007 and delivered to

Petitioner the same date. 

The Court finds no due process violation with regard to

Petitioner’s notice of these incident reports. They were plainly

delivered to him immediately upon completion of a necessary and

careful investigation of the incident.

In addition, the mere fact that Petitioner’s UDC hearings

were not conducted within three work days from the time staff

became aware of Petitioner’s involvement did not unduly prejudice

Petitioner and deprive him of due process. Holding a UDC hearing

within three work days is not a procedural due process

requirement. See Brown v. Rios, 196 Fed. Appx. 681, 683 (10th

Cir. 2006)(even if the UDC hearing was held beyond the three-day

time frame, that does not rise to the level of a constitutional

deprivation under Wolff). In this case, Petitioner received two

separate notices or “Advisement of Incident Report Delay(s)” that

sufficiently explained the reason for having the UDC hearings

held beyond the normal time-line. The record shows that a large

scale SIS investigation of the incident was ongoing from February

18, 2007, with new information being received in July 2007, which

required a re-write of the incident report. This careful and

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lengthy investigation does not, in and of itself, violate any BOP

regulations or procedural due process standards.

The Court also finds that the discrepancy of a date in the

rewritten incident report is not a due process violation. In ¶

11 of the rewritten incident report, it states that the report is

a re-write of the original incident report written on “July 11,

2007.” This is simply an obvious typographical error, nothing

more. Typographical errors do not rise to the level of a

constitutional deprivation. See Hairston v. Boyce, 2008 WL

2095771 at *7 (D.N.J. 2008)(citing Morales v. DeRosa, 2005 WL

2217018 at *4 (D.N.J. 2005)). Moreover, such insignificantly

“false” information in the rewritten incident report is not

sufficient to establish a due process violation where the inmate

has the opportunity to rebut the allegedly false accusations and

evidence. See McKeathan v. Beard, 2009 WL 908710 at *2 (3d Cir.

April 6, 2009). “[S]o long as certain procedural requirements

are satisfied, mere allegations of falsified evidence or

misconduct reports, without more, are not enough to state a due

process claim.” Smith v. Mensinger, 293 F.3d 641, 653-54 (3d

Cir. 2002). Here, Petitioner has had the opportunity to provide

evidence and a statement to the investigating officer, UDC and

the DHO. The Court finds no due process violation as a result of

the alleged delays.

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Petitioner also contends that his due process rights were

violated when he was denied the opportunity to call certain

witnesses at his DHO hearing. The Government counters that the

DHO correctly denied the additional requested witnesses because

they had no relevant testimony, and that such decision did not

violate Petitioner’s due process rights.

This Court agrees with the Respondent. The right to call

witnesses in a prison disciplinary proceeding is not absolute. 

“[I]t is ‘circumscribed by the necessary mutual accommodation

between institutional needs and objectives and the provisions of

the Constitution that are of general application.’” Howard v.

Bureau of Prisons, 487 F.3d 808, 811 (10 Cir. 2007)(quoting th

Baxter v. Parmigiano, 425 U.S. 308, 321 (1976) and Wolff, 418

U.S. at 556). Further, “[i]t is not a denial of due process to

deny an inmate an opportunity to present witnesses ‘whose

testimony would be irrelevant, repetitive, or unnecessary.’” 

Moles v. Holt, 221 Fed. Appx. 92, 95 (3d Cir. 2007)(quoting

Pannell v. McBride, 306 F.3d 499, 503 (7 Cir. 2002). See also th

28 C.F.R. § 541.17(c)(“the DHO shall call those witnesses who

have information directly relevant to the charges and who are

reasonably available. ... The DHO need not call repetitive

witnesses”). 

Here, the DHO documented the reasons for denying

Petitioner’s three additional witness and SIS Tech Buckner, as

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required under 28 C.F.R. § 541.17(c). (Moran Decl., Ex. 10 at

Section III.C.4). In particular, the DHO found that Buckner’s

knowledge of the incident was thoroughly summarized in the

reports. Further, the testimony of the inmate witnesses as to

the fact that Petitioner was not in the cell when the cell phone

charger was found would have been irrelevant and repetitive. 

Additionally, the testimony of Petitioner’s wife was not

relevant. (Id.).

Therefore, this Court finds no merit to Petitioner’s claim

in this regard. He does not have an unfettered right to call

witnesses at his prison disciplinary proceeding, and the basis

for the DHO’s denial of these witnesses were reasonable and did

not offend due process.

Next, Petitioner argues that the DHO did not provide to

Petitioner all of the documentary evidence relied upon at the

hearing. It would appear that Petitioner’s objections are based

on the staff memoranda and investigative reports that were relied

upon by the DHO, other than the incident reports, which were

provided to Petitioner, namely, the documentary evidence included

the June 8, 2007 memorandum written by J. Buckner, SIS Tech; the

March 2, 2007 memorandum written by C. Mosley, SOS; the March 2,

2007 memorandum written by Case Manager Blair; and the telephone

account statement dated June 15, 2007.

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The Court notes that the June 8, 2007 SIS investigative

memorandum was marked as “L.O.U. Sensitive” and “F.O.I. Exempt.” 

This memorandum could have been appropriately excluded from

Petitioner and marked in the confidential information category of

the DHO report. However, it was shown to Petitioner at the

hearing. Moreover, the pertinent information in the memorandum

was included in the incident reports, which Petitioner received

well before the DHO hearing giving him sufficient notice of the

charges to prepare a defense and present witnesses and evidence. 

Likewise, the March 2, 2007 memoranda by both Mosley and

Blair were simply an account of the search of Petitioner’s

cell/room and what was found and seized. This information was

essentially duplicated in the incident reports, and thus was made

known to Petitioner through the incident reports. The

information in the telephone account statement also was set forth

in the incident reports. Moreover, all of these documents were

shown to Petitioner at the DHO hearing.

Thus, Petitioner was given written notice of the charges and

evidence against him well before the DHO hearing, and the

documentary evidence was presented to him at the hearing, and

memorialized in the DHO report as the evidence presented at the

hearing. Wolff, Von Kahl, and BOP regulations require that an

inmate receive advance written notice of the disciplinary charges

against him so that he can respond to those charges; however,

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there is no requirement that the evidence supporting those

charges (such as the SIS investigation or staff memoranda in this

instance) also must be provided to the inmate in advance of his

UDC and DHO hearings. See Castro v. U.S. Bureau of Prisons, 2005

WL 2205791 at *3 (D.N.J. Sept. 8, 2005). This Court finds no due

process violation under these circumstances.

Finally, Petitioner asserts that Program Statement 5270.07

states that any staff involved in the incident can not take a

significant part in the investigation. Petitioner thus alleges

that it was error for Case Manager Blair to be involved in the

investigation since he was one of the staff who found the cell

phone charger. This contention lacks any merit and fails to

support a due process claim. Blair was not involved in the

writing of the incident reports. His memorandum of the search

was simply used as a basis for the incident report. 

Consequently, there is no procedural due process violation under

Wolff or Von Kahl.

Accordingly, this Court concludes that Petitioner has not

demonstrated any denial of procedural due process to warrant a

grant of habeas relief.

2. There Was Sufficient Evidence to Support the Charge

Petitioner also argues that there was inadequate evidence to

support a finding that he violated Code 108, and that the DHO

decision was not based on “some evidence.”

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The Supreme Court has held that procedural due process is

not satisfied “unless the findings of the prison disciplinary

board are supported by some evidence in the record.” 

Superintendent v. Hill, 472 U.S. 445, 454-55 (1985); Young v.

Kann, 926 F.2d 1396, 1402-03 (3d Cir. 1991). The Supreme Court

has stated:

Prison disciplinary proceedings take place in a highly

charged atmosphere, and prison administrators must

often act swiftly on the basis of evidence that might

be insufficient in less exigent circumstances. The

fundamental fairness guaranteed by the Due Process

Clause does not require courts to set aside decisions

of prison administrators that have some basis in fact.

Revocation of good time credits is not comparable to a

criminal conviction, and neither the amount of evidence

necessary to support such a conviction, nor any other

standard greater than some evidence applies in this

context.

Hill, 472 U.S. at 456 (internal citations omitted). Moreover,

the Court stated: “The Federal Constitution does not require

evidence that logically precludes any conclusion but the one

reached by the disciplinary board. Instead, due process in this

context requires only that there be some evidence to support the

findings made in the disciplinary hearing.” Id. at 457.

Here, there is sufficient evidence noted by the DHO in

reaching his determination. The DHO’s Report demonstrates that

the DHO considered and relied upon the SIS investigation and the

reporting officer’s description of the incident as set forth in

the Incident Reports, which sufficiently detailed the discovery

of the cell phone charger, and Petitioner’s telephone account

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activity, to support the charged violation. Specifically, the

DHO relied on the photograph of the cell phone charger, the 6-

page SIS investigation memorandum, the staff memoranda regarding

the cell search that resulted in the discovery of the cell phone

charger, Petitioner’s statements, and the witness statements.

Petitioner appears to challenge the DHO’s decision on two

grounds. First, that there was no evidence to prove that he

owned the cell phone charger, as he was not in the cell when it

was found and it was a common area open and accessible to his

three cell mates and all other inmates in the wing. Second, he

appears to suggest that the cell phone charger is not a hazardous

tool and is nothing more harmful than the packaging box for a

cell phone. 

There was more than sufficient evidence presented at the

hearing to show that Petitioner had “constructive possession” of

the cell phone charger. The charger was found in a bag on top of

a locker out in the open in Petitioner’s cell. Not one of the

four cell mates, including Petitioner, admitted to owning the

device. More importantly, BOP regulations and policy instruct

inmates that it is their responsibility to keep their areas free

of contraband. See 28 C.F.R. § 541.12, P.S. 5270.07, Inmate

Discipline and Special Housing Unit, Chapter 3 at page 1. This

policy has been found not to offend due process unless there is

exculpatory evidence that renders the inmate’s “possession” of

the contraband so unreliable under the circumstances that

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Superintendent v. Hill’s “some evidence” standard is not met. 

See Donahue v. Grondolsky, 2009 WL 3754045 (D.N.J. Nov. 2, 2009),

aff’d, 398 Fed. Appx. 767 (3d Cir. 2010); Briggs v. Marberry,

2008 WL 554927 **8-9 (W.D. Pa., Feb. 28, 2008); Hamilton v.

O’Leary, 976 F.2d 341, 346 (7 Cir. 1992); Okocci v. Klein, 270 th

F. Supp.2d 603, 613 (E.D. Pa. 2003)(noting that “the doctrine has

been extended so far as situations where other inmates claimed

responsibility for contraband fond during cell searches”), aff’d,

Remoi v. Klein, 100 Fed. Appx. 127 (3d Cir. 2004) cert. denied,

543 U.S. 1061 (2005); White v. Kane, 860 F. Supp. 1075, 1079

(E.D. Pa. 1994), aff’d, 52 F.3d 319 (3d Cir. 1994).

Here, Petitioner has not proffered any evidence of

unreliability sufficient to undermine the “some evidence”

standard. The fact that Petitioner shared a cell with three

other inmates does not “preclude the application of the

constructive possession rule.” Donahue, 2009 WL 3754045, *6; 

Briggs, 2008 WL 554927 *9; see also Bailey v. Nash, 2005 WL

2300367 ** 1, 3 (M.D. Pa., Sept. 21, 2005)(denying habeas

petition where the weapon was found in the bedpost of an inmate’s

two-man bunk bed, inmate was assigned to area less than one

month, area housed six to ten inmates). Nor does the fact that

his cell or room did not have a lock render the evidence

unreliable.

The evidence relied upon by the DHO clearly shows that a

cell phone charger was found in plain view in Petitioner’s cell

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to which he had daily access and constructive possession. The

mere act of possessing and using the cell phones in prison, in

and of itself, circumvents the Inmate Telephone System (“ITS”),

and is sufficient in satisfying the evidentiary standard required

by due process in prison disciplinary proceedings. And the

undisputed fact that the cell phone charger was found in

Petitioner’s locker provided some evidence that Petitioner

constructively possessed the charger. See Hill, 472 U.S. at

455–457 (where three inmates could have assaulted victim, there

was some evidence that Hill was the assailant); Shelby v.

Whitehouse, 399 Fed. Appx. 121 (7th Cir. 2010)(where Shelby

shared cell with four other inmates and one inmate had admitted

that drugs found in the cell were his, disciplinary decision

finding Shelby guilty of possession was supported by “some

evidence,” since collective responsibility among prisoners is not

unconstitutional), cert. denied, 131 S.Ct. 2978 (U.S. June 6,

2011); Flannagan v. Tamez, 368 Fed. Appx. 586, 590 (5th Cir.

2010)(there was “some evidence” where “contraband was found in

[cell] that Flannagan share[d] with only five other inmates”);

Hamilton v. O’Leary, 976 F.2d 341, 346 n. 1 (7th Cir. 1992)(where

the most likely scenario was that one in eight prisoners had

access to vent where weapons were found (12.5% probability) and

the record before the disciplinary hearing board showed that

there was a one in four probability, there was “some evidence” of

petitioner’s guilt of possession of weapon). Therefore, because

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the cell phone charger was found in Petitioner’s cell, there was

“some evidence” that he possessed the charger, and the DHO’s

finding that Petitioner committed the prohibited act is not

without due process.

As to whether the cell phone charger can be considered a

hazardous tool like a cell phone under Code 108, the DHO found

that a cell phone charger is an essential charging component to a

cell phone to keep it operational. Thus, this Court finds no

error in defining a cell phone charger as a tool, because it

enables a cell phone to make calls and its only logical purpose

is to charge a cell phone for operation. Indeed, the BOP’s

definition of hazardous tool to include a cell phone charger is

not plainly erroneous or inconsistent with BOP regulations. See

Hicks v. Yost, 377 Fed. Appx. 223 (3d Cir. 2010)(BOP’s definition

of hazardous tool in code 108 to include a cell phone is not

plainly erroneous or inconsistent with BOP regulations); McGill

v. Martinez, 348 Fed. Appx. 718 (3d Cir. 2009)(where officer

found a cell phone and a charger in petitioner’s cubicle, BOP did

not violate due process or abuse its discretion in sanctioning

him 40 days of good conduct time for possession of hazardous

tool, code 108); Robinson v. Warden, FCI Fort Dix, 250 Fed. Appx.

462, 464 (3d Cir. 2007)(“The BOP’s definition of a hazardous tool

to include a cell phone is not plainly erroneous or inconsistent

with BOP regulations, see Chong v. Dist. Dir., I.N.S., 264 F.3d

378, 389 (3d Cir. 2001), and Robinson’s conduct clearly falls

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within Code 108”); Ortiz v. Zickefoose, 2011 WL 1675003 (D.N.J.

May 3, 2011)(denying habeas corpus relief who argued that

possession of a cell phone was not violation of code 108). Under

these circumstances, this Court rejects Petitioner’s argument

that the DHO abused its discretion in finding that he committed 

a code 108 violation. Id. 

Consequently, the DHO’s Report plainly shows that it was

“not so devoid of evidence that the findings of the [DHO were]

without support or otherwise arbitrary.” Hill, 472 U.S. at 457.

Petitioner has not proffered any evidence of unreliability

sufficient to undermine the “some evidence” standard. 

Accordingly, this Court finds that there was more than sufficient

evidence to support the DHO finding that Petitioner had committed

the prohibited acts as charged. Petitioner has failed to proffer

any sufficiently credible contradictory evidence. The procedures

enunciated in Wolff, supra, were complied with, and there was

“some evidence”, in accordance with Hill, supra, to support the

DHO’s finding of guilt. 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). 

Therefore, there is no basis to expunge the incident report

and sanctions imposed because Petitioner has not proven that he

was denied due process or that there was insufficient evidence to

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support the disciplinary finding. Accordingly, this habeas

petition will be denied for lack of merit.

3. Code 108 Violation Properly Applied

Petitioner also argues that the Code 108 violation was not

properly applied on several grounds. For instance, he contends

that possession of a cell phone charger is more appropriately

prohibited under Code 305 - possession of anything not

authorized. Petitioner also claims that the language of Code 108

is too vague to apply to his offense conduct, and that the BOP’s

treatment of a cell phone and its components as a hazardous tool

under Code 108 did not adhere to the administrative rule

promulgation procedures under the Administrative Procedures Act

(“APA), 5 U.S.C. § 551, et seq. Finally, he contends that

application of Code 108 rather than Code 305 violated his right

to equal protection.

As noted above, courts have upheld an inmate’s discipline

under Code 108 for possession of a cell phone and/or a cell phone

charger, even where the language of Code 108 does not use the

term “cell phone.” See Hicks v. Yost, 377 Fed. Appx. 223, 224-25

(3d Cir. 2010)(citing Chong, 264 F.3d at 389); McGill v.

Martinez, 348 Fed. Appx. 718, 721 (3d Cir. 2009)(the BOP’s

“interpretation is perfectly consistent with Code 108's

prohibition of items ‘hazardous to institutional security[]’”);

Robinson v. Warden, FCI Fort Dix, 250 Fed. Appx. 462, 464 (3d

Cir. 2007)(same - Code 108 violation for possession of cell phone

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in 2005). See also United States v. Blake, 288 Fed. Appx. 791,

794-95 & n.4 (3d Cir. 2008)(rejecting void for vagueness argument

where inmate found guilty of possession of cell phone and

charger); Ausberry v. Grondolsky, 2008 WL 4225174, *5 (D.N.J.

Sept. 9, 2008)(upholding application of Code 108 to possession of

MP3 player because of its clear potential to disrupt the security

and orderly running of the institution); Persaud v. Samuels, 2007

WL 1959275, *1 (D.N.J. July 3, 2007)(possession of cell phone

charger in 2006).

Thus, this Court finds that Code 108 was appropriately

applied to Petitioner’s conduct, and that there was sufficient

notice that possession of a cell phone and/or charger was

prohibited. Indeed, as the above case law demonstrates, Code 108

has been consistently applied to the BOP inmate population at

large for the past few years. Moreover, cases upholding the

recognition of cell phones as hazardous tool under Code 108 have

specifically acknowledged that these devices and related

components are frequently used by inmates to circumvent inmate

phone monitoring, and to assist inmates in escaping from prison

by keeping inmates informed of special counts and staff

locations, which poses a serious threat to the security of the

institution, its inmates and staff. See Robinson, 250 Fed. Appx.

at 464, cited in Curry v. Zych, 2010 WL 864486, *4 (E.D. Mich.

March 9, 2010)(citing cases). 

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Further, the BOP’s inclusion of cell phones and related

components as hazardous tools under Code 108 is simply an

expanding interpretation of what constitutes a hazardous tool so

that the BOP can effectively address the evolving ways inmate

conduct and the introduction of contraband can threaten

institutional safety and security. Such an interpretation is not

a legislative rule, and thus is not subject to the notice-andcomment requirement of the APA, as suggested by Petitioner. See

Ausberry, 2008 WL 4225174 at *4 (BOP disciplinary guidelines are

not subject to the notice and comment requirements of the APA

because they are internal agency guidelines that are subject to

being altered at will), citing Reno v. Koray, 515 U.S. 50, 61

(1995); Royal v. Tombone, 141 F.3d 596, 600 (5th Cir. 1998)

(rejecting prisoner’s argument that BOP’s change in policy was

invalid because it was not promulgated in accordance with the

APA, as agency guidelines are “promulgated internally and may be

altered at will by the BOP”); Koray v. Sizer, 21 F.3d 558, 562

(3d Cir. 1994)(internal agency guidelines may be altered by the

BOP at will and are not subject to the notice and comment

requirements of the APA), rev’d on other grounds sub nom Reno v.

Koray, 515 U.S. 50 (1995).

Petitioner also asserts that the BOP violated his right to

equal protection because a Code 108 violation was reduced to a

Code 305 violation for similar conduct by other inmates. In

particular, Petitioner cites to Neagle v. Grondolsky, 2010 WL

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2546021 (D.N.J. June 18, 2010). However, in Neagle, and in

Hudson v. Zickefoose, 2010 WL 4746220 (D.N.J. Nov. 15, 2010), the

courts found that even though the habeas petition regarding the

Code 108 disciplinary action was rendered moot where the BOP resanctioned the inmates under Code 305, petitioner’s original 

challenges would be subject to dismissal. Specifically, in

Neagle, “[p]etitioner allege[d] that he was deprived of liberty

without due process of law because he has lost good conduct days

as a result of the sanctions imposed by being charged with a Code

108 infraction for the possession of a cell phone which carries

stronger legal consequences than a Code 305 violation.” Neagle,

2010 WL 2546021 at *3. Although the BOP’s answer indicated that

it had reduced the infraction to a Code 305 violation, the court 

dismissed the petition on the merits, finding that the BOP did

not violate Petitioner’s federal rights by sanctioning him for a

code 108 violation.

The Equal Protection Clause requires that all people

similarly situated be treated alike. See City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985). A petitioner who

alleges an equal protection violation has the burden of proving

the existence of purposeful discrimination that had a

discriminatory effect on him. See McCleskey v. Kemp, 481 U.S.

279, 292 (1987); Whitus v. Georgia, 385 U.S. 545, 550 (1967).

“Thus, to prevail under the Equal Protection Clause, [Petitioner]

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must prove that the decisionmakers in his case acted with

discriminatory purpose.” McCleskey, 481 U.S. at 292.

The problem with Petitioner’s equal protection claim is

that, other than alleging that the BOP reduced the severity of

the disciplinary charge for cell phone possession for others, he

has alleged nothing to indicate that his disciplinary sanction

was the result of purposeful discrimination. Accordingly, his

equal protection claim fails. See Millard v. Hufford, 2011 WL

681091 (3d Cir. Feb. 28, 2011)(“Millard cited various cases in

which inmates received less severe punishment for the same

violation committed by Millard (possession of a weapon), arguing

that because he received harsher punishment than other inmates

for the same offense, the punishment must have been the result of

discrimination .... Millard’s argument falls well short of

establishing the purposeful discrimination necessary to make out

an equal protection claim”). See also Bouchard v. Shartle, 2011

WL 2559530 (D.N.J. June 27, 2011).

As the Petition, traverse, and attachments do not show that

the final administrative decision in this insatnce concerning the

Code 108 charge violated the Constitution, laws or treaties of

the United States, this Court will dismiss the Petition.

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4. The Sanctions Imposed Were Not An Atypical Or

Significant Hardship on Petitioner.

The Government contends that the sanctions as imposed in

this case were within the range of sanctions available for the

violations of Code 108, Greatest Category offense, and did not

impose an atypical or significant hardship on Petitioner. 

This Court finds that the sanctions imposed, including the

loss of privileges, are within the range of sanction listed under

28 C.F.R. §541.13(a)(1). Moreover, the loss of privileges

sanction do not work an “atypical and significant hardship” on

Petitioner, and do not serve to extend his confinement beyond the

expected parameters of his sentence. See Sandin v. Connor, 515

U.S. 472, 484-85 (1995). Petitioner also fails to show that the 3

disciplinary sanctions imposed were arbitrarily applied or are

unreasonable. The sanctions are consistent with the applicable

regulations and were not disproportionate to Petitioner’s

conduct. 

 Under certain circumstances, liberty interests may arise 3

under the Due Process Clause or by operation of state law or

regulations. Sandin, 515 U.S. at 483-84. Sandin also applies to

Fifth Amendment claims involving federal prison regulations. 

Castillo v. FBOP, No. 05-5076, 2006 WL 1764400, *3 (D.N.J. June

23, 2006), aff’d, 221 Fed. Appx. 172 (3d Cir. 2007). 

Nevertheless, such liberty interests are implicated only where

the action creates “atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life” or

creates a “major disruption in his environment.” Sandin, 515

U.S. at 484-86. Disciplinary action by federal prison officials

in response to a wide range of misconduct is not atypical but

rather, falls within the expected parameters of a sentence

imposed by a court of law. Id. at 485. 

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5. Double Jeopardy Claim

Petitioner also argues that his receipt of two incident

reports for the same offense violates the Double Jeopardy Clause.

The Double Jeopardy Clause of the Fifth Amendment provides

that no person shall “be subject for the same offense to be twice

put in jeopardy of life or limb.” U.S. Const. amend. V. Three

separate guarantees are “embodied in the Double Jeopardy Clause:

It protects against a second prosecution for the same offense

after acquittal [or mistrial], against a second prosecution for

the same offense after conviction, and against multiple

punishments for the same offense.” Justices of Boston Mun. Court

v. Lydon, 466 U.S. 294, 306-07 (1984); see also Illinois v.

Vitale, 447 U.S. 410, 415 (1980). Thus, the threshold question

under a double jeopardy analysis is whether the challenged

provision imposes “punishment.” Artway v. Attorney General of

State of N.J., 81 F.3d 1235, 1253 (3d Cir. 1966).

However, the Fifth Amendment’s proscription against double

jeopardy does not apply to sanctions imposed as a result of

prison discipline. See Lisenby v. Cohen, 2011 WL 251466, *6

(D.S.C. Jan. 6, 2011); Teron v. Kupec, 2001 WL 34698403 (D.Md.

July 30, 2001), aff’d, 48 Fed. Appx. 79 (4 Cir. 2002). th

Therefore, the Double Jeopardy Clause does not apply to repeated

disciplinary proceedings. Id.; see also Meeks v. McBride, 81

F.3d 717, 722 (7 Cir. 1996)(acquittal in earlier prison th

disciplinary proceeding did not bar subsequent hearing to

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consider the same charge); Garrity v. Fielder, 41 F.3d 1150,

1152-53 (7 Cir. 1994)(prison discipline not prosecution for th

double jeopardy purposes, even where disciplinary sanction delays

prisoner’s release from prison by loss of good conduct time),

cert. denied, 514 U.S. 1044 (1995).

Here, Petitioner was sanctioned only once by the DHO for the

Code 108 violation. The sanctions were imposed after his only

DHO hearing on August 16, 2007. The second report was merely a

re-write of the original incident report after new information

was received. Petitioner did not have any adjudication as to the

Code 108 conduct before August 16, 2007. Moreover, he received

sanctions for the Code 108 violation only once, and was never

subjected to additional sanctions. Therefore, this double

jeopardy claim is without merit.

CONCLUSION

Based upon the foregoing, the petition for a writ of habeas

corpus under 28 U.S.C. § 2241 will be denied for lack of merit. 

An appropriate Order accompanies this Opinion.

s/ Jerome B. Simandle 

JEROME B. SIMANDLE

Chief U.S. District Judge

Dated: January 27, 2012

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