United States District Court, D. New Jersey
December 16, 2005.
NORWOOD COOK, Petitioner,
WARDEN, FCI FORT DIX, Respondent.
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.
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
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 as required under the law.
A. Standard of Review
Cook 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).
B. Exhaustion of Administrative Remedies
Respondent contends that Cook did not timely pursue his
administrative remedies, set forth at 28 U.S.C. § 542.10 et
seq., to appeal the DHO's decision. Cook did submit an
administrative appeal to the Northeast Regional Office, but it
was rejected as untimely. On December 16, 2003, Cook appealed to
the BOP's Central Office. The BOP Central Office also rejected
the appeal, concurring with the Regional Office's rationale for
rejecting the appeal as untimely.
Cook argues that he did place his administrative remedy in the
prison mailbox in a timely manner, as witnessed by another
inmate. He claims that the mail system at FCI Fort Dix "lacks
accountability" and "credibility", and that there is the likelihood that his administrative remedies were deliberately or
mistakenly held in the prison for more than a week.
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, a federal prisoner ordinarily may not bring a
petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging the execution of his sentence, until he has exhausted
all available administrative remedies. See, e.g., Callwood
v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v.
United States Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka
v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973). The exhaustion
doctrine promotes a number of goals:
(1) allowing the appropriate agency to develop a
factual record and apply its expertise facilitates
judicial review; (2) permitting agencies to grant the
relief requested conserves judicial resources; and
(3) providing agencies the opportunity to correct
their own errors fosters administrative autonomy.
Goldberg v. Beeler, 82 F. Supp.2d 302, 309 (D.N.J. 1999),
aff'd, 248 F.3d 1130 (3d Cir. 2000). See also Moscato v.
Federal Bureau of Prisons, 98 F.3d 757
, 761 (3d Cir. 1996).
Nevertheless, exhaustion of administrative remedies is not
required where exhaustion would not promote these goals. See,
e.g., Gambino v. Morris, 134 F.3d 156
, 171 (3d Cir. 1998)
(exhaustion not required where petitioner demonstrates futility);
Lyons v. U.S. Marshals, 840 F.2d 202
, 205 (3d Cir. 1988)
(exhaustion may be excused where it "would be futile, if the
actions of the agency clearly and unambiguously violate statutory
or constitutional rights, or if the administrative procedure is clearly shown to be inadequate to
prevent irreparable harm"); Carling v. Peters, 2000 WL 1022959,
*2 (E.D. Pa. 2000) (exhaustion not required where delay would
subject petitioner to "irreparable injury").
Here, it appears that Cook attempted to exhaust his
administrative remedies, but his attempts were rejected as
untimely. Cook also explains that he did file his administrative
appeals in a timely manner, but that it is likely that the prison
mail system, which is allegedly notorious for deliberate or
mistaken holding of mail, caused Cook's appeal to be considered
This Court finds that any further effort by Cook in exhausting
his administrative remedies at this juncture would be futile.
Although the Regional Office has determined that Cook's appeal
was not timely, Cook reasonably argues that the delay in receipt
of his appeal papers by a matter of days is explained by the
likelihood of the prison's delay in mailing from FCI Fort Dix.
Moreover, a sufficient factual record has already been developed
with respect to the disciplinary proceeding at issue. Finally,
Cook raises an issue of the constitutionality of the Code 297,
which is a question within the expertise of courts. See
Chevron, U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843 n. 9 (1984) ("The judiciary is the final
authority on issues of statutory construction and must reject administrative constructions which are contrary to clear
congressional intent"). Accordingly, the purposes of the
exhaustion requirement do not readily apply in this case, and the
Court will review the merits of Cook's petition rather than
dismiss it on this procedural ground.
C. Applicable Regulations
The Bureau of Prisons ("BOP") has specific guidelines for
inmate disciplinary procedures, which are codified at
28 C.F.R. § 541.10 et seq. Prohibited acts are categorized according to
the severity of the conduct. Code Level 100s are deemed the
"Greatest", code level 200s as "High", and proceeding to 400
level codes as "Low Moderate." The Prohibited Acts Code and
Disciplinary Severity Scale is set forth at 28 C.F.R. § 541.13
Tables 3-5. Incident reports are prepared in accordance with §
541.14 and are referred to the UDC for an initial hearing
pursuant to § 541.15.
The UDC hearing is typically conducted within three working
days of the incident, but may be extended for good cause pursuant
to § 541.15(b) and (k). The UDC may refer the matter to the DHO
for further proceedings pursuant to § 541.15(f). In this case,
referral of the incident report to the DHO was mandatory under §
541.13(a)(2), because it was designated as a high category
offense and the UDC does not have the authority to disallow good
conduct time. Disallowance of good conduct time credits for high category offenses, pursuant to Sanction B.1 in Table 3, must be
imposed under 28 C.F.R. § 541.13(a)(2).
DHO hearing procedures are set forth at § 541.17. These
procedures require the following: (a) 24-hour advance written
notice of charge before inmate's initial appearance before the
DHO; this right may be waived, § 541.17(a); (b) an inmate shall
be provided a staff representative at the DHO hearing, if so
desired, § 541.17(b); (c) an inmate is entitled to make a
statement and to present documentary evidence at the DHO hearing;
the inmate may also call witnesses to testify on his behalf, but
may not himself question the witnesses, § 541.17(c); (d) the
inmate is entitled to be present throughout the hearing, except
during a period of deliberation or when institutional security
would be jeopardized, § 541.17(d). The DHO shall prepare a record
of the proceedings that documents the advisement of the inmate's
rights, the DHO's findings, the DHO's decision, the specific
evidence relied upon by the DHO, and a brief statement of the
reasons for imposition of sanctions. 28 C.F.R. § 541.17(g). A
written copy of the DHO's decision and disposition must be
provided to the inmate ordinarily within 10 days. Id.
These procedures are intended to meet or exceed the due process
requirements prescribed by Wolff v. McDonnell, 418 U.S. 539
(1974). See Von Kahl v. Brennan, 855 F. Supp. 1413, 1418
(M.D. Pa. 1994). D. Merits of Petitioner's Claims
1. Procedural Due Process Claims
The Due Process Clause of the Fifth or Fourteenth Amendments
provides that liberty interests of a constitutional dimension may
not be rescinded without certain procedural protections.
U.S. CONST. amend. XIV. In Wolff v. McDonnell, supra, the Supreme
Court set forth the requirements of due process in prison
disciplinary hearings. An inmate is entitled to (1) written
notice of the charges and no less than 24 hours to marshal the
facts and prepare a defense for an appearance at the disciplinary
hearing; (2) a written statement by the fact finder as to the
evidence relied on and the reasons for the disciplinary action;
and (3) an opportunity "to call witnesses and present documentary
evidence in his defense when to do so will not be unduly
hazardous to institutional safety or correctional goals."
Wolff, 418 U.S. at 563-71. An inmate is also entitled to an
inmate representative in some cases, and a written decision by
the factfinder as to evidence relied upon and findings. See
Von Kahl, 855 F. Supp. at 1418 (citing Wolff,
418 U.S. at 563-72).
In the instant case, Cook asserts that he did not receive
written notice of newly discovered evidence, which was used
against him at the reconvened hearing on July 1, 2003. He also
contends that the DHO was not fair and impartial and abused his
authority in postponing the hearing so as to gather additional evidence against petitioner. Finally, Cook asserts that he
received the DHO's decision more than 10 days after it was
rendered in violation of 28 C.F.R. § 541.17(g).
a. Newly discovered evidence
The only evidence that was newly provided at the July 1, 2003
hearing was the Admissions and Orientation handbook from the FDC
in Philadelphia, and the acknowledgment of receipt form signed by
Cook. Now Cook seeks to refute his receipt of the handbook,
despite his signature on the acknowledgment form. He has
proffered no evidence to refute his notice of the FDC
Philadelphia handbook, except his own testimony that he did not
receive it. The Court finds that Cook's signature on the
acknowledgment form is more than sufficient to outweigh Cook's
belated defense that he never received the handbook.
Moreover, regardless of whether Cook did not receive the
handbook while at FDC Philadelphia, Cook does admit that he
received a copy of the handbook at FCI Fort Dix. The Court notes
that the FCI Fort Dix handbook clearly states that three way
calls were prohibited. Thus, Cook had actual notice of the type
of telephone calls and conversations that were prohibited. The
handbook also provided the severity scale so that an inmate could
determine the severity of an institutional Code violation.
Therefore, the Court finds that the evidence produced by the
DHO at the July 1, 2003 hearing was not new or unknown by petitioner. Moreover, Cook has not made a showing of how the
"new" evidence prejudiced his ability to defend himself at the
hearing. Given his signature on the form acknowledging receipt,
it would appear that Cook's actual receipt of the handbook is
irrefutable. Consequently, where this Court finds no denial of
due process in this case, this ground for relief is denied.
b. Impartial hearing officer
Next, Cook alleges that the DHO was not fair and impartial, and
abused his authority by postponing the initial hearing and
conducting an investigation which would prove petitioner guilty
of the code violation.
A prisoner is entitled to an impartial 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). Here, DHO Morton was not involved
in the investigation or circumstances underlying the charge.
Rather, he simply postponed the hearing for evidence to be
provided, addressing Cook's claim at the first hearing that he
did not have notice that a three way call was prohibited.
Cook has not demonstrated any facts to support the allegation
that the DHO was biased. Nor does Cook cite any authority for his
allegation that the DHO did not have the power to postpone a hearing. Cook received notice of the charges before
his first hearing. He then received notice at the hearing that
evidence pertaining to knowledge of the prohibited acts was
necessary to adjudicate Cook's defense that he did not know the
charged conduct was prohibited. The "new" evidence was nothing
more than Cook's signed Inmate Screening Form from FDC
Philadelphia, acknowledging receipt of the Admissions and
Orientation Handbook, and the handbook itself. The FCI Fort Dix
handbook, which Cook had referred to at the initial hearing, also
The Court finds nothing in the record to support Cook's general
contention that the DHO was not fair or impartial, or abused his
authority during the disciplinary proceedings. Accordingly, this
claim is denied.
c. Late receipt of DHO decision
Cook also complains that he did not receive a written copy of
the DHO's decision within the ten days prescribed under the
rules. He contends that this delay was intended to frustrate his
appeal process. Cook further claims that the delay caused
prejudice because if he had been granted a new hearing, many of
his witnesses were no longer at FCI Fort Dix.
The record shows that the Regional Office accepted Cook's
representation that he did not receive the DHO decision until
October 17, 2003. However, Cook's administrative appeal was rejected as untimely because the Regional Office did not receive
the appeal within 20 days after October 17, 2003, not July 31,
2003 when the decision was actually prepared. Thus, Cook's claim
that there was a delay to frustrate appeal is baseless.
Furthermore, this Court finds no prejudice to Cook from the
delay with respect to the inability to call witnesses because
Cook has never identified any witnesses and had previously stated
there were no witnesses to the alleged prohibited conduct of May
14, 2003. Therefore, this ground for habeas relief is denied as
2. There Was Sufficient Evidence to Support the Charge
The Supreme Court has held that procedural due process is not
satisfied "unless the findings of the prison disciplinary board
are supported by some evidence in the record." Superintendent v.
Hill, 472 U.S. 445, 454-55 (1985); Young v. Kann,
926 F.2d 1396, 1402-03 (3d Cir. 1991). The Supreme Court has stated:
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 456 (internal citations omitted).
Moreover, the Court stated: "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." Id. at 457.
Here, there is sufficient evidence noted by the DHO in reaching
his determination. The DHO's Report demonstrates that, after an
investigation and the DHO's consideration of all the relevant
evidence, the DHO found that the greater weight of evidence
supported a finding that Cook did commit the prohibited act in
violation of Code 297. This evidence included petitioner's
admission that he made the third party call. It also included the
FCI Fort Dix Handbook, the FDC Philadelphia handbook, and the
signed acknowledgment of receipt form, which showed that Cook did
have actual notice that such three way calls were prohibited acts
in federal prison facilities.
Therefore, based upon this evidence as relied upon by the DHO,
the Court finds that Cook's right to due process was not violated
by the determination of the DHO. The procedures enunciated in
Wolff, supra, were complied with, and there was "some
evidence", in accordance with Hill, supra, to support the
DHO's finding of guilt. 3. Code 297 Was Not Unconstitutionally Vague
"It is a basic principle of due process that a law is void for
vagueness if its prohibitions are not clearly defined." Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972). In the context of
prison regulations, "[d]ue process undoubtedly requires certain
minimal standards of specificity in prison regulations, but we
reject the view that the degree of specificity required of such
regulations is as strict in every instance as that required of
ordinary criminal sanctions." Meyers v. Aldredge, 492 F.2d 296,
310 (3d Cir. 1974). Thus, "vagueness principles must be applied
in light of the legitimate needs of prison administration." Id.
at 311. Because "legalistic wrangling" over the meaning of prison
rules "may visibly undermine the [prison] administration's
position of total authority," federal courts have deferred to the
interpretation of those rules by prison authorities "unless fair
notice was clearly lacking." Hadden v. Howard, 713 F.2d 1003,
1008 (3d Cir. 1983) (quoting Meyers, 492 F.2d at 311).
Here, Code 297 prohibits telephone activities constituting
"third-party calling". 28 C.F.R. § 541.13 Table 3. In the
circumstances presented here, there can be no doubt that the
language of Code 297 and § 541.13 are sufficient to provide "fair notice," to an inmate that third party calls are
prohibited.*fn2 Cook is not entitled to relief on his
Based upon the foregoing, Cook's petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2241, will be denied for lack of
merit. Furthermore, because the Court has determined that the §
2241 petition is without merit, petitioner's motion for discovery
will be dismissed as moot. An appropriate Order accompanies this
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