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COOK v. WARDEN

December 16, 2005.

NORWOOD COOK, Petitioner,
v.
WARDEN, FCI FORT DIX, Respondent.



The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge

MEMORANDUM OPINION

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 23, 2005.

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.

  II. CLAIMS PRESENTED

  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 him.

  C. Petitioner was not afforded a fair and impartial hearing officer.

  D. The DHO abused his authority.

  E. Petitioner was not given a written copy of the DHO's decision within ten days ...


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