The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter is before the Court on petitioner Norwood Cook's
("Cook") application for habeas corpus relief under
28 U.S.C. § 2241, challenging the loss of 27 days good conduct time, imposed
upon him as a disciplinary sanction for committing Prohibited Act
297, a third party call, on May 14, 2003. Cook seeks restoration
of his good conduct time, expungement of the incident report, a
declaratory judgment that prohibited act 297 is unconstitutionally vague, and injunctive relief enjoining further
enforcement of the prohibited act 297 and barring the Bureau of
Prisons ("BOP") from transferring petitioner to another prison
facility pending adjudication of this petition. Shortly
thereafter, Cook filed a motion to amend his petition to add a
claim seeking redress for his alleged retaliatory transfer from
FCI Fort Dix to FCI Ray Brook, which was opposed by respondent.
This Court denied petitioner's motion by Order entered on August
The named respondent, the Warden at FCI Fort Dix, filed an
answer to the petition on or about March 11, 2005. On March 29,
2005, Cook filed a motion for discovery. Respondent filed an
opposition to the discovery motion on April 22, 2005. The Court
has reviewed all documents submitted and, for reasons now
discussed, will deny this petition for lack of merit. The motion
for discovery will be dismissed as moot.*fn1 BACKGROUND
At the time the alleged disciplinary infraction occurred, Cook
was confined at F.C.I. Fort Dix in Fort Dix, New Jersey, serving
a 100 month prison term for possession of 50 grams or more of
cocaine base with the intent to distribute (violation of
21 U.S.C. § 846), and a consecutive 60 month prison term for
possession of a firearm during a drug trafficking offense
(violation of 18 U.S.C. § 924(c)). His projected release date is
May 23, . (Respondent's Answer at pp. 4-5).
On May 15, 2003, BOP Officer Keith Mapps reviewed a monitored
telephone call that Cook had placed on May 14, 2003. It was
revealed that Cook had placed a call to a female, who then called
a third person at Cook's direction. Cook and the woman passed
information to the third party. The third party call was
completed and Cook and the woman talked for an additional 11
minutes before ending their call. Officer Mapps then prepared an
incident report charging Cook with violation of Code 297, an
unauthorized third party call. See 28 C.F.R. § 541.13 Table 3.
(Resp. Exhibit 1c, Incident Report).
An investigation was conducted by the investigating Lt. J.
Anderson on May 15, 2003. Lt. Anderson advised Cook of his rights
and gave petitioner a copy of the incident report. Cook told
Anderson that he had made a telephone call on May 14, 2003, but
did not know that he was making a three way call. He said that he was trying to check on his mother who he had not heard
from for awhile. Cook said he did not have any witnesses and Lt.
Anderson referred the matter to the Unit Disciplinary Committee
("UDC"). (Resp. Ex. 1c).
On May 19, 2003, Cook was given written notice of the
Disciplinary Hearing Officer ("DHO") hearing and a written
statement of his rights, which advised that he had the right to
have a staff representative at the DHO hearing and that he could
call witnesses and present documentary evidence at the hearing.
The DHO report discloses that Cook waived his right to a staff
representative and did not call any witnesses. (Resp. Ex. 1d).
An initial hearing was held on May 28, 2003 before DHO Steven
T. Morton at FCI Fort Dix. Cook admitted placing the call but did
not know that what he did was prohibited. In support of this
claim, Cook produced the Admission and Orientation Handbook from
FCI Fort Dix, which did not list Code violations for Code 197
(telephone use to further criminal activity), Code 297 (use of
telephone for abuses other than criminal activity, including, but
not limited to third-party calling), and Code 397 (use of
telephone for abuses other than criminal activity). See
28 C.F.R. § 541.13 Table 3. DHO Morton postponed the hearing to
obtain information on whether Cook had actually received proper
notice of the prohibited acts. (Resp. Ex. 1d and 1e). The hearing was reconvened on July 1, 2003. DHO Morton had
obtained an Intake Screening Form from the Federal Detention
Center in Philadelphia, where Cook had initially been placed
before his transfer to FCI Fort Dix. Cook had signed the form on
March 27, 2003, acknowledging that he had received the Admission
and Orientation Booklet at FDC Philadelphia. The booklet
contained reference to the Prohibited Acts and Disciplinary
Severity Scale. In particular, at page 27, the FDC Philadelphia
booklet identified Code violation 297. (Resp. Ex. 1f). DHO Morton
also showed Cook that the FCI Fort Dix Admissions and Orientation
Handbook submitted by Cook did list on page 9, under the heading
for "Telephone Calls", that "Three way phone conversations are
also prohibited." (Resp. Ex 1e). Thus, DHO Morton concluded that
Cook had received proper notice of the prohibited acts and the
corresponding severity scale. DHO Morton also found that Cook's
actions violated Code 297.
The DHO further noted that the prohibited act as violated by
Cook, namely, a third party call, shows a disregard for the rules
and regulations, and circumvents the BOP's ability to properly
monitor inmate telephone calls since the third person with whom
the inmate is speaking cannot be identified. The following
sanctions were imposed: (1) loss of 27 days good conduct time;
(2) loss of telephone privileges for 180 days; and (3) disciplinary segregation for 30 days, suspended pending 180 days
clear conduct. (Resp. Ex. 1d).
A written decision/report was prepared on July 31, 2003, which
included a statement of petitioner's appeal rights. The report
was served on Cook on August 1, 2003. Cook claims he did not
receive the DHO decision until October 2003.
Cook raises the following claims in his petition:
A. Prohibited Act 297 as applied is unconstitutionally vague.
B. Petitioner was denied due process when he did not receive
written notice of newly discovered evidence to be used against
C. Petitioner was not afforded a fair and impartial hearing
D. The DHO abused his authority.
E. Petitioner was not given a written copy of the DHO's
decision within ten days ...