NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MICAH A. SOLOMON, :

Civil Action No. 11-1269 (JBS)

Petitioner, :

v. : OPINION

WARDEN, FCI FAIRTON, :

Respondent. :

APPEARANCES:

Micah A. Solomon Karen Helene Shelton

60595-066 Office of the U.S. Attorney

FCI Fairton 402 East State Street

P.O. Box 420 Trenton, NJ 08608

Fairton, NJ 08320

Petitioner pro se

SIMANDLE, Chief Judge

Petitioner Micah A. Solomon, 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 challenging the results of a prison 1

disciplinary proceeding. Warden, FCI Fairton is named as the sole

 Section 2241 provides in relevant part: 1

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

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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respondent.

Petitioner has paid the $5.00 filing fee. Because it

appears from a review of the Petition that Petitioner is not

entitled to relief, the Petition will be dismissed. See 28

U.S.C. § 2243.

I. BACKGROUND

Petitioner is currently incarcerated at FCI Fairton,

however, the alleged events described in the Petition occurred

while Petitioner was incarcerated at FCI Fort Dix. Petitioner

challenges a disciplinary proceeding for which he received

sanctions related to a violation of Code 108, Possession of a

Hazardous Tool, namely a cell phone. Petitioner, along with two

other inmates, worked as an orderly in the receiving and

discharge (“R & D”) area at FCI Fort Dix where the cell phone was

found. The phone was located in a cell used by the orderlies as

a work area which was locked by prison staff. No other inmates

had access to the area. 

The Incident Report, number 1717087, stated:

On April 1, 2008, at approximately 3:30pm, I was

conducting shakedowns in the R&D area on the West

Compound. During the search, I found 9 bags of

tobacco, 90 packets of rolling papers, 200 vitamin

weight supplements, 10 packets of matches, 1 virgin

mobile cellular phone, 1 cellular charger, 1 cellular

ear piece. These items were located specifically in

the inmate orderly supply area. This area is not

accessible to any other inmates being processes(sic)

through the R&D area without staff supervision. Inmate

Micah Solomon, register number 60595-066 is assigned to

R&D as an orderly and has access to this area.

2

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See, Moran Decl., Ex. 3, Incident Report, Part I.

While Petitioner acknowledges that he was one of the few

inmates with access to the R & D area and does not argue due

process violations in regard to the disciplinary proceeding

itself, he argues that there was insufficient evidence to find

that he had constructive possession of the cell phone since the R

& D area was ultimately under the control of prison staff. 

Petitioner contends that he was not in possession of the

contraband since he had previously reported its existence.

Petitioner seeks to have the incident report expunged, good

time credits restored, and to receive credit for the time spent

in disciplinary segregation. 

II. LEGAL STANDARD

United States Code Title 28, Section 2243 provides in

relevant part as follows:

A court, justice or judge entertaining an

application for a writ of habeas corpus shall forthwith

award the writ or issue an order directing the

respondent to show cause why the writ should not be

granted, unless it appears from the application that

the applicant or person detained is not entitled

thereto.

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. 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

3

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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). Nevertheless, a federal district court can

dismiss a habeas corpus petition if it appears from the face of

the petition that the petitioner is not entitled to relief. See

Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773

F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). 

See also 28 U.S.C. §§ 2243, 2255.

III. ANALYSIS

A. Jurisdiction

A habeas corpus petition is the proper mechanism for a

prisoner to challenge the “fact or duration” of his confinement,

Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973), including

challenges to prison disciplinary proceedings that affect the

length of confinement, such as deprivation of good time credits,

Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v. Balisok,

520 U.S. 641 (1997). See also Wilkinson v. Dotson, 125 S.Ct.

1242 (2005). Accordingly, this Court has jurisdiction to hear

Petitioner’s challenge to disciplinary sanctions. 

B. Petitioner’s Claims

Petitioner alleges that the finding at the disciplinary

hearing –- that he had constructive possession of a hazardous

tool –- was not supported by sufficient evidence.

4

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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

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 disciplinary 2

The Constitution itself does not guarantee good time 2

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

5

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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

reasons for the disciplinary action. 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. 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

credit toward the service of their sentence based upon their

conduct. See 18 U.S.C. § 3624(b); 28 C.F.R. § 523.20.

6

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v. Hill, 472 U.S. 445, 454-56 (1985). The United States Court 3

of Appeals for the Third Circuit has held that the Hill standard

is minimal, and does not require detailed examination of the

evidence. Santiago v. Nash, 224 Fed. App’x 175, 177 (3d Cir.

2007) (citations omitted). Even in the absence of direct

evidence, the “some evidence” standard may be satisfied by the

doctrine of constructive possession in instances where a only

small number of inmates could be guilty of the offense charged. 

See id. 

Petitioner contends that the “some evidence” standard has

not been satisfied because there was no evidence that he actually

possessed the contraband or exercised or attempted to exercise

dominion and control of the contraband. Petitioner cites to

United States v. Jenkins, 90 F. 3d 814 (3d Cir. 1996), for the

proposition that he cannot be found guilty of possession of

contraband without evidence that he had knowledge of the

contraband and he exercised dominion and control over the

contraband. 

Petitioner’s reliance on Jenkins is misplaced since Jenkins

involved a criminal conviction for drug possession and Petitioner

 The due process requirements of Wolff, as they relate to 3

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).

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was not convicted of a crime involving possession, but a prison

disciplinary charge. The standard of proof in a criminal case is

“beyond a reasonable doubt,” and the constitutionally required

standard of proof in a prison disciplinary hearing is merely

“some evidence” of possession. “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.” Hill, 472 U.S. at 455-56.

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

sufficiency of the evidence, the findings of are supported by

“some evidence.” The fact is undisputed that the cell phone was

found in Petitioner’s work area, where Petitioner admittedly was

one of only three inmates with access, thus providing “some

evidence” that Petitioner possessed the cell phone. Petitioner

has not pointed to any case law that would support his theory

that a work area, with restricted to access by only three

inmates, would be distinguishable here. As such, Petitioner was

not deprived of due process in connection with the challenged

disciplinary proceeding and thus the Court will deny his

Petition. 

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IV. CONCLUSION

For the reasons set forth above, the Petition will be

denied. An appropriate order follows.

s/ Jerome B. Simandle 

Jerome B. Simandle

Chief Judge

Dated: January 30, 2012

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