NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

:

ERIC C. LLOYD, :

: Civil Action No. 11-1419 (JBS)

Petitioner, :

:

v. : O P I N I O N

:

J.T. SHARTLE, :

:

Respondent. :

________________________________:

APPEARANCES:

Petitioner pro se Counsel for Respondent

Eric C. Lloyd Irene E. Dowdy

#04620-015 Asst. U.S. Attorney

F.C.I. Fairton 401 Market Street

P.O. Box 420 P.O. Box 2098

Fairton, NJ 08320 Camden, NJ 08101

SIMANDLE, Chief Judge

Petitioner Eric C. Lloyd, a prisoner currently confined at

the Federal Correctional Institution at Fairton, New Jersey, has

submitted a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241. The sole respondent is Warden J.T. Shartle. 

Respondent filed an Answer to the Petition on August 22, 2011. 

Petitioner filed a Reply on September 14, 2011. The Court has

reviewed all submissions. For the following reasons, the

Petition will be denied. 

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BACKGROUND

Petitioner is serving a 168-month term of imprisonment for a

conviction of federal drug charges in the United States District

Court, District of Delaware. His projected release date is March

9, 2016.

Petitioner challenges a disciplinary proceeding that

occurred at FCI Fort Dix, where he was previously housed. An

Incident Report, dated April 27, 2010, alleged that an email and

Facebook account were created by Petitioner while housed in the

prison. Petitioner was accused of using a contraband cell phone

to communicate and maintain an unauthorized internet email

account, and to circumvent the prison telephone system. He was

charged with Code 108, Possession of a hazardous tool (cell

phone); Code 297, Use of the telephone for non-criminal activity;

and Code 327, Unauthorized contact with the public. 

Petitioner was advised of his rights, and stated: “The

Incident Report is not true.” The matter was referred to the

Unit Disciplinary Committee (“UDC”). 

An initial hearing was conducted on April 29, 2010. 

Petitioner made no statements. The UDC referred the matter to a

Discipline Hearing Officer (“DHO”). Petitioner was given written

notice of the DHO hearing, and a written statement of his rights

at the hearing. Petitioner signed forms indicating that he did

not wish to have a staff representative or witness.

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On May 19, 2010, the DHO convened a hearing with Petitioner

present. Petitioner denied the charges, stating: “They gave me a

108. I don’t see how. My family set up the Facebook account. I

didn’t have a cell phone.” Petitioner stated that his sister set

up the account and he would call her from the institution phone,

and tell her what to write. Petitioner further stated that he

kept his password in his locker in case he couldn’t get a hold of

his sister. He would tell the password to somebody else to post

for him.

There was circumstantial evidence that Petitioner had his

own cell phone. Specifically, the DHO saw statements that

Petitioner had posted on his Facebook account, including, inter

alia: (1) “I GOT A NEW PHONE AND I’M HAVING PROBLEMS GETTING IT

TURNED ON. LONG STORY! I SHOULD BE BACK ON TOMORROW SO IF U

DIDN’T HEAR FROM TODAY THAT’S THE REASON.” (Resp’t Answer, Ex. 6,

DHO Report, at 16.) (2) “This is my new number 856-275-1576."

(Id. at 18.) (3) “I just burned my phone out so I got a major

headache, right now. Literally!” (Id. at 10.) And (4) “I called u

twice from the prison phone but u didn’t answer ur phone. I’ll

try to hit u tomorrow, ok? Do not say anything about a cell

phone.” (Id. at 22.)

After considering the evidence, the DHO found that

Petitioner had committed the acts as charged. He imposed

disciplinary sanctions, including disciplinary segregation, loss

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of good conduct time (“GCT”), loss of visiting privileges and

loss of commissary privileges. The DHO explained his reasoning,

and signed the DHO Report on June 18, 2010. Petitioner was

advised of his right to appeal.

Petitioner appealed through the BOP administrative remedy

process, and his appeals were denied. He then filed this

petition on March 14, 2011.

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

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). 

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B. The Petition Must Be Denied.

Petitioner argues that he should not have been charged with

Code 108, but at most, should have been charged with a code 305

(possession of anything not authorized). He argues that a cell

phone can “never be a hazardous tool,” and alleges that his Due

Process and Equal Protection rights have been violated. 

(Petition, Docket Entry 1). Petitioner notes that two other

inmates have had their charges downgraded and their GCT restored. 

He also alleges that since the cell phone was not recovered, he

couldn’t be charged with possession of a hazardous tool.

1. Due Process

Convicted and sentenced prisoners retain the protections of

the Due Process Clause of the Fifth and Fourteenth Amendments

that the government may not deprive them of life, liberty, or

property without due process of law. See Wolff v. McDonnell, 418

U.S. 539, 556 (1974); Haines v. Kerner, 404 U.S. 519 (1972);

Wilwording v. Swenson, 404 U.S. 249 (1971). Such protections

are, however, “subject to restrictions imposed by the nature of

the regime to which [prisoners] have been lawfully committed....

In sum, there must be mutual accommodation between institutional

needs and objectives and the provisions of the Constitution that

are of general application.” Wolff, 418 U.S. at 556.

A liberty interest protected by the Due Process Clause may

arise from either of two sources: the Due Process Clause itself

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or from state or federal law. See Hewitt v. Helms, 459 U.S. 460,

466 (1983); Asquith v. Department of Corrections, 186 F.3d 407,

409 (3d Cir. 1999). Where the government has created a right to

good time credits, and has recognized that a prisoner's

misconduct authorizes deprivation of the right to good time

credits as a sanction, the prisoner is entitled to an impartial 1

disciplinary tribunal, Wolff, 418 U.S. at 570-71, excluding “only

those [prison] officials who have a direct personal or otherwise

substantial involvement ... in the circumstances underlying the

charge from sitting on the disciplinary body,” Meyers v.

Alldredge, 492 F.2d 296, 306 (3d Cir. 1974).

To comply with the requirements of the Due Process Clause,

prison officials also must provide a prisoner facing loss of good

time credits with: (1) a written notice of the charges at least

24 hours prior to any hearing, (2) an opportunity to call

witnesses and presented documentary evidence in his defense when

permitting him to do so will not be unduly hazardous to

institutional safety or correctional goals, and (3) a written

statement by the factfinders as to the evidence relied on and the

The Constitution itself does not guarantee good time 1

credits for satisfactory behavior in prison. Congress, however,

has provided that federal prisoners serving a term of

imprisonment for more than one year, other than a term of

imprisonment for the duration of the prisoner's life, may receive

credit toward the service of their sentence based upon their

conduct. See 18 U.S.C. § 3624(b).

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reasons for the disciplinary action. See Wolff, 418 U.S. at

564-66. Prisoners do not have a due process right of

confrontation and cross-examination, or a right to counsel, in

prison disciplinary proceedings. See id. at 569-70.

Finally, due process requires that findings of a prison

disciplinary official, that result in the loss of good time

credits, must be supported by “some evidence” in the record.

Superintendent, Massachusetts Correctional Institution at Wolpole

v. Hill, 472 U.S. 445, 454-56 (1985).2

Here, Petitioner has not alleged any facts that would

indicate that the disciplinary hearings and resulting sanctions

were contrary in any way to the requirements set forth by the

Wolff standard. With respect to Petitioner's challenges to the 3

sufficiency of the evidence, it is clear that the findings of the

Disciplinary Hearing Officer are supported by “some evidence,”

The due process requirements of Wolff, as they relate 2

to federal prisoners, have been codified in the Code of Federal

Regulations at 28 C.F.R. § 541.10, et seq. See, e.g., 28 C.F.R. §

541.14 (Incident report and investigation); 28 C.F.R. § 541.16

(Establishment and functioning of the Discipline Hearing

Officer); 28 C.F.R. § 541.17 (Procedures before the Discipline

Hearing Officer).

 Petitioner asserts that the Incident Report is blank in 3

the “place of incident” box. He argues that this deprived him of

a meaningful defense that the areas charged were in unauthorized

location. (Pet., p. 4). However, Petitioner did not raise this

claim through the administrative process. Also, the Incident

Report notes that the statements and photos used in evidence were

made at “various” locations on multiple dates. This Court finds

that this argument is not sufficient to sustain an allegation of

a due process violation.

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including the Incident Report, the written statement of the

reporting employee, the material found in Petitioner’s locker,

and the printouts of statements from the Petitioner’s Facebook

account. This Court agrees that there was sufficient evidence 4

to find Petitioner guilty of the infractions. As such,

Petitioner was not deprived of due process in connection with the

challenged disciplinary proceeding and thus his petition is

subject to dismissal.

2. Equal Protection

Petitioner asserts that the BOP violated his right to equal

protection because it reduced the 108 code violation to a 305

code violation for inmates Hudson and Neagle, who previously

filed § 2241 petitions. On January 15, 2010, Duane Hudson filed

a § 2241 petition challenging the loss of good conduct time for

possession of a cell phone at FCI Fort Dix, in violation of code

108. See Hudson v. Zickefoose, No. 10–251 (RBK), 2010 WL 4746220

(D.N.J. Nov. 15, 2010). This District Court found that the

petition was rendered moot since the BOP had re-sanctioned Hudson

for committing a code 305 violation, but determined that, “even

if the Petition has not been rendered moot ..., Petitioner's

 According to the record, Petitioner posted his new phone 4

number and comments about his problems having it turned on, as

well as comments about calling from the prison phone, comments

about the air conditioning at the facility, as well as other

posts that derived from Petitioner’s account, evidencing his

guilt. (Answer, p. 16).

8

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challenges would be subject to dismissal.” Id. at *1 (citing

Pittman v. Zickefoose, Civil No. 10–5057 (RMB) (D.N.J. Oct. 20,

2010)).

Similarly, Christopher Neagle filed a § 2241 petition

challenging the loss of 41 days of good conduct time for

possession of a cell phone in violation of code 108. See Neagle

v. Grondolsky, 2010 WL 2546021 (D.N.J. June 18, 2010).

“Petitioner 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.” Id. at

*3. Although the BOP's answer indicated that it had reduced the

infraction to a Code 305 violation, Judge Hillman dismissed the

petition on the merits, finding that the BOP did not violate

Petitioner's due process rights.

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.

In this case, other than alleging that the BOP reduced the

severity of the disciplinary charge for cell phone possession in

two other cases, Petitioner has alleged no facts to indicate that

his disciplinary sanction was the result of purposeful

discrimination. Accordingly, his equal protection claim fails. 

See Millard v. Hufford, 415 F. App'x. 348, 349–50 (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”).

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas

corpus must be dismissed. An appropriate Order accompanies this

Opinion. 

s/ Jerome B. Simandle 

JEROME B. SIMANDLE

Chief Judge

United States District Court

Dated: September 21, 2012

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