NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

 

:

CHRISTOPHER BOUCHARD, :

:

Petitioner, :

:

v. :

:

J.T. SHARTLE, :

:

Respondents. :

 :

Hon. Renée Marie Bumb

Civil No. 11-3273 (RMB)

OPINION

APPEARANCES:

CHRISTOPHER BOUCHARD, #03754-049

F.C.I. Fairton

P.O. Box 420

Fairton, New Jersey 08320

Petitioner Pro Se

BUMB, District Judge

Christopher Bouchard, a federal inmate confined at FCI

Fairton in New Jersey, filed a Petition for a Writ of Habeas

Corpus under 28 U.S.C. § 2241 seeking restoration of 40 days of

good conduct time forfeited as a disciplinary sanction. For the

reasons expressed below and because the face of the Petition and

attachments show that Petitioner is not entitled to relief, this

Court will summarily dismiss the Petition. 

I. BACKGROUND

Petitioner challenges the loss of 40 days of earned good

conduct time imposed by the Bureau of Prisons (“BOP”) as a

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disciplinary sanction while Petitioner was confined at FCI Fort

Dix. 

Petitioner executed the Petition on June 2, 2011. The Clerk

received it on June 7, 2011. Petitioner asserts the following

facts:

On or about April 30, 2010 the reporting

officer J. Ellis signed an Incident Report

(I/R) No. 2009791 that concluded that

Petitioner possessed a hazardous tool a cell

phone charger a code 108 violation in the

Federal Bureau of Prisons (F.B.O.P.) a

Greatest Severity Level violation . . . . 

Petitioner never admitted that the contraband

was His . . . . That resulted in the

Petitioner losing 108 days of non vested good

time and the disallowance of 40 days GCT

among other sanctions. The Petitioner was

charged with one Act, Possession of a Cell

phone.

(Docket Entry #1, pp. 3-4.)

Petitioner further asserts that he exhausted the BOP’s

three-step Administrative Remedy Program. Attached to the

Petition are the following documents: (1) Incident Report dated

April 30, 2010; (2) Discipline Hearing Officer Report; (3)

Regional Director’s Response to Petitioner’s appeal of the

sanction, dated July 23, 2010; and (4) receipt dated January 6,

2011, indicating that the Administrative Remedy Coordinator of

the BOP’s Central Office received Petitioner’s appeal on December

1, 2011, and that the response is due on January 10, 2011. 

(Docket Entry #1-1, pp. 1-6.)

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The Incident Report charges Petitioner with a violation of

Code 108, Possession, Manufacture, or Introduction of a Hazardous

Tool: “On April 30, 2010 at approximately 7:10 pm while

conducting a shake down of inmate Bouchards 03754-049 secure wall

locker I located a samsung cell phone charger. The charger was

altered with other wires and another connection. The phone

charger was found inside of a sock on the top shelf of his

locker.” (Docket Entry #1-1, p. 1.) 

After conducting a hearing on May 7, 2010, the Disciplinary

Hearing Officer found Petitioner guilty of code 108. Petitioner

appealed, and on July 23, 2010, J.L. Norwood, Regional Director,

denied the appeal as follows: 

You appeal the May 7, 2010 decision of the

Discipline Hearing Officer (DHO) at FCI Fort

Dix, finding you committed the prohibited act

of Possessing a Hazardous Tool (cell phone

charger), Code 108, Incident Report No.

2009791. You contend the Bureau of Prisons

(BOP) is misinterpreting Code 108, which is

clearly defined and does not include a cell

phone. You state the BOP has circumvented

the Administrative Procedures Act and there

is insufficient notice of this violation. 

You argue that you are being denied equal

protection by having greater sanctions

imposed than for a code 305, the more

appropriate charge.

In your appeal, you do not deny that a

Samsung cell phone charger was found in your

secured wall locker, hidden inside a sock on

April 30, 2010. At the DHO hearing, you

stated you keep your locker unlocked all the

time and implied someone put the charger in

your locker. The DHO also considered staff

memoranda and a photograph of the charger. 

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You are responsible for securing your

personal property and for all contraband

found in your assigned areas. You did not

present any evidence the cell phone charger

belonged to someone else and the DHO

reasonably determined you possessed

contraband hazardous to institution security. 

Although you believe you were charged with

the wrong offense code, by memorandum dated

December 28, 2009, the Warden at FCI Fort Dix

advised the inmate population than an inmate

found in possession of electronic

communication devices or related equipment

such as cellphones, chargers, video

equipment, etc., may be charged with a

violation of Code 108. We concur with this

decision and find you were appropriately

charged and sanctioned.

The record in this case reflects substantial

compliance with Program Statement 5270.08,

Inmate Discipline. The decision of the DHO

was based upon the greater weight of the

evidence and the sanctions imposed were

consistent with the severity level of the

prohibited act. The sanctions imposed: 60

days disciplinary segregation, disallow 40

days god conduct time, forfeit 108 days nonvested good conduct time, 18 months loss of

telephone privileges and 90 days loss of

commissary and visiting privileges, were not

disproportionate to your misconduct. 

Accordingly, your appeal is denied.

(Docket Entry #1-1, p. 4.)

Petitioner submitted an appeal to the Administrative Remedy

Coordinator at the BOP’s Central Office, which received the

appeal on December 1, 2010. (Docket Entry #1-1, p. 6.) To date,

Petitioner has received no response.1

1 If the appeal was not received until December 1, 2010, it

may be untimely, as the Regional Director’s decision states that

(continued...)

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In the Petition before this Court Petitioner argues : (1) 

the BOP violated due process because at the disciplinary hearing

Petitioner denied that the cell phone charger was his; (2)

because “a phone charger can never be a hazardous tool” (Docket

Entry #1, p. 5), the BOP abused its discretion by finding him

guilty of code 108, Possession, Manufacture, or Introduction of a

hazardous tool, when the proper charge was code 305, Possession

of Anything Not Authorized; and (3) the BOP violated equal

protection by failing to reduce his charge to code 305 when it

reduced the charges of two other inmates for possession of a cell

phone. Petitioner seeks a writ directing the BOP to restore the

40 days of good conduct time or to reduce the sanction to that

for a code 305 violation. (Docket Entry #1, pp. 6-7.) 

II. DISCUSSION

A. Jurisdiction

Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not

extend to a prisoner unless . . . [h]e is in custody in violation

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

28 U.S.C. § 2241(c)(3). A federal court has subject matter

jurisdiction under § 2241(c)(3) if two requirements are

satisfied: (1) the petitioner is “in custody” and (2) the

custody is “in violation of the Constitution or laws or treaties

1(...continued)

the appeal must be received in the Central Office within 30

calendar days of July 23, 2010.

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of the United States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook,

490 U.S. 488, 490 (1989). The federal habeas statute requires

that the petitioner be in custody “under the conviction or

sentence under attack at the time his petition is filed.” Lee v.

Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (quoting Maleng, 490

U.S. at 490-91). This Court has subject matter jurisdiction

under § 2241 to consider the instant Petition because Petitioner

challenges the loss of good conduct time on federal grounds, and

he was incarcerated in New Jersey at the time he filed the

Petition. See Queen v. Miner, 530 F. 3d 253, 254 n.2 (3d Cir.

2008); Woodall, 432 F.3d at 242-44. 

B. Standard of Review

“Habeas corpus petitions must meet heightened pleading

requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). 

Habeas Rule 2(c) requires a habeas petition to “specify all the

grounds for relief available to the petitioner,” “state the facts

supporting each ground,” “state the relief requested,” be

printed, typewritten, or legibly handwritten, and be signed under

penalty of perjury. 28 U.S.C. § 2254 Rule 2(c), applicable to §

2241 through Rule 1(b). Habeas Rule 4 requires a judge to sua

sponte dismiss a petition without ordering a responsive pleading

“[i]f it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief in the

district court.” 28 U.S.C. § 2254 Rule 4, applicable to § 2241

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through Rule 1(b). Thus, “Federal courts are authorized to

dismiss summarily any habeas petition that appears legally

insufficient on its face.” McFarland, 512 U.S. at 856. 

Dismissal without the filing of an answer has been found

warranted when “it appears on the face of the petition that

petitioner is not entitled to relief.” Siers v. Ryan, 773 F.2d

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

also McFarland, 512 U.S. at 856; United States v. Thomas, 221

F.3d 430, 437 (3d Cir. 2000) (habeas petition may be dismissed

where “none of the grounds alleged in the petition would entitle

[the petitioner] to relief”).

C. Due Process

Petitioner argues that the BOP violated due process by

revoking his good conduct time credits without sufficient

evidence that he was guilty of Possession, Manufacture, or

Introduction of a Hazardous Tool, because he denied that it was

his. 

The Due Process Clause of the Fifth Amendment of the

Constitution of the United States provides: “No person shall . .

. be deprived of life, liberty, or property, without due process

of law.” U.S. Const. amend. V. Federal inmates possess a

liberty interest in good conduct time. See Wolff v. McDonnell,

418 U.S. 539, 555-57 (1974); Young v. Kann, 926 F. 2d 1396, 1399

(3d Cir. 1991); Levi v. Holt, 192 Fed. App’x. 158 (3d Cir. 2006). 

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Where a prison disciplinary hearing results in the loss of good

conduct time, due process requires: (1) 24 hours advance written

notice of the disciplinary charges; (2) a hearing with the right

to testify, call witnesses and present documentary evidence, when

not unduly hazardous to correctional goals; and (3) a written

statement by the factfinder as to the evidence relied on and

reasons for the disciplinary action. See Wolff, 418 U.S. at 564-

566. In addition to the requirements of Wolff, “revocation of

good time does not comport with the minimum requirements of

procedural due process unless the findings of the prison

disciplinary [officer] are supported by some evidence in the

record.” Superintendent, Massachusetts Correctional Institution,

Walpole v. Hill, 472 U.S. 445, 454 (1985) (citations and internal

quotation marks omitted); see also Griffin v. Spratt, 969 F.2d

16, 19 (3d Cir. 1992); Thompson v. Owens, 889 F.2d 500, 501 (3d

Cir. 1989). The Supreme Court explained the “some evidence”

standard in this passage of Hill:

We hold that the requirements of due process

are satisfied if some evidence supports the

decision by the prison disciplinary board to

revoke good time credits. This standard is

met if there was some evidence from which the

conclusion of the administrative tribunal

could be deduced. Ascertaining whether this

standard is satisfied does not require

examination of the entire record, independent

assessment of the credibility of witnesses,

or weighing of the evidence. Instead, the

relevant question is whether there is any

evidence in the record that could support the

conclusion reached by the disciplinary

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[officer]. We decline to adopt a more

stringent evidentiary standard as a

constitutional requirement. 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 455-456 (citations and internal quotation marks

omitted); see also Thompson, 889 F.2d 500.

“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. For example, in Hill, the Supreme Court reversed the

state court’s determination that the evidence of a disciplinary

infraction was constitutionally deficient because it did not

support an inference that more than one person had assaulted the

victim; the Supreme Court held that the evidence before the

disciplinary board satisfied the “some evidence” standard:

The disciplinary board received evidence in

the form of testimony from the prison guard

and copies of his written report. That

evidence indicated that the guard heard some

commotion and, upon investigating, discovered

an inmate who evidently had just been

assaulted. The guard saw three other inmates

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fleeing together down an enclosed walkway. 

No other inmates were in the area . . . . 

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. Although the evidence

in this case might be characterized as

meager, and there was no direct evidence

identifying any one of the three inmates as

the assailant, the record is not so devoid of

evidence that the findings of the

disciplinary board were without support or

otherwise arbitrary.

Hill, 472 U.S. at 455-457 (citations omitted).

Similarly, in Santiago v. Nash, 224 Fed. App’x 175, 177 (3d

Cir. 2007), Santiago brought a § 2241 petition challenging the

loss of good conduct time where he was found guilty of possession

of a hazardous tool after a guard found a tattoo gun needle taped

to the frame of Santiago’s bunk. At the disciplinary hearing,

Santiago denied knowledge of the needle and claimed there was

insufficient evidence to find that he possessed the needle. The

Third Circuit rejected the argument: 

We agree with the District Court that some

evidence existed to support the DHO’s

conclusions. Although Santiago argues that

he had no knowledge of the needle’s presence,

it was found within an area that Santiago was

responsible for keeping contraband-free. 

Further, in the absence of direct evidence

indicating an inmate’s guilt of possession,

the ‘some evidence’ standard may be satisfied

by application of the constructive possession

doctrine in limited circumstances where a

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small number of inmates are potentially

guilty of the offense charged.

Santiago v. Nash, 224 Fed. App’x at 177 (citations omitted);

accord Reynolds v. Williamson, 197 Fed. App’x 196 (3d Cir. 2006)

(where habeas petitioner shared cell with another inmate and

corrections officer found a 10-inch sharpened rod in the sink

drain of the cell and petitioner denied knowledge of weapon and

did not have the necessary plumbing tools to retrieve the hidden

shank from the drain, Third Circuit held that there was some

evidence that he possessed the shank). 

In this case, the undisputed fact that the cell phone

charger was found in Petitioner’s locker provided some evidence

that Petitioner possessed the charger. Compare 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. App’x 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); Flannagan v. Tamez, 368 Fed. App’x 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

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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) with

Broussard v. Johnson, 253 F. 3d 874, 877 (5th Cir. 2001) (where

the only evidence that petitioner possessed bolt cutters was the

fact that they were found in the kitchen where he worked, to

which 100 inmates had access, the evidence was insufficient to

satisfy “some evidence” standard). Because the weapon was found

in Petitioner’s locker, there was “some evidence” that he

possessed the weapon, and the BOP did not deprive Petitioner of

good conduct time credits without due process.2

D. Abuse of Discretion

Petitioner argues that the BOP abused its discretion by

finding him guilty of Possession of a Hazardous Tool because a

cell phone charger is not a hazardous tool. 

BOP regulations authorize the BOP to impose sanctions when

an inmate “is found to have committed a prohibited act.” 28

C.F.R. § 541.13(a). Prohibited acts under BOP regulations

include code 108, defined as follows: “Possession, manufacture,

or introduction of a hazardous tool (Tools most likely to be used

in an escape or escape attempt or to serve as weapons capable of

2 Petitioner raises no other due process challenge and

nothing before this Court indicates that the requirements of Wolf

were not satisfied.

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doing serious bodily harm to others; or those hazardous to

institutional security or personal safety; e.g., hack-saw

blade).” 28 C.F.R. § 541.13, Table 3. 

Petitioner challenges the BOP’s determination that a cell

phone charger is a hazardous tool. The Regional Director

explained that, “by memorandum dated December 28, 2009, the

Warden at FCI Fort Dix advised the inmate population that an

inmate found in possession of electronic communication devices or

related equipment such as cell phones, chargers, video equipment,

etc., may be charged with a violation of Code 108. We concur

with this decision and find you were appropriately charged and

sanctioned.” (Docket Entry #1-1, p. 4.) 

The BOP’s interpretation of its own regulation is

“controlling . . . unless it is plainly erroneous or inconsistent

with the regulation.” Chong v. Dist. Dir., I.N.S., 264 F. 3d

378, 389 (3d Cir. 2001). 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.

App’x. 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.

App’x 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

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conduct time for possession of hazardous tool, code 108);

Robinson v. Warden, FCI Fort Dix, 250 Fed. App’x 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 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

BOP abused its discretion in sanctioning him for a code 108

violation. Id.

E. 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 also filed §

2241 petitions. This Court’s docket shows that Duane E. 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, 2010 WL 4746220 (D.N.J. Nov.

15, 2010). Judge Kugler found that the petition was rendered

moot where the BOP re-sanctioned Hudson for committing a code 305

violation, but determined that, “even if the Petition has not

been rendered moot . . . , Petitioner’s challenges would be

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subject to dismissal.” Id. at *1 (citing Pittman v. Zickefoose,

Civil No. 10-5057 (RMB) (D.N.J. closed 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 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 in two other

cases, 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”). 

As the Petition and attachments do not show that the final

administrative decision violated the Constitution, laws or

treaties of the United States, this Court will dismiss the

Petition.

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III. CONCLUSION

For the reasons set forth above, the Court dismisses the

Petition for a Writ of Habeas Corpus. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: June 27, 2011

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