The opinion of the court was delivered by: Hon. Renée Marie Bumb
Ronald A. Ausberry 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 committing the prohibited act of Possessing a Hazardous Tool (code 108). Copies of the Disciplinary Hearing Officer's Report, the decision of the Bureau of Prisons' ("BOP") Regional Office and the final administrative decision issued by the BOP's Central Office are attached to the Petition. For the reasons expressed below, the Court will dismiss the Petition with prejudice.
Petitioner challenges the loss of 40 days of earned good conduct time imposed by the BOP as a disciplinary sanction for committing the prohibited act of Possessing a Hazardous Tool (code 108).*fn1 Petitioner argues: (1) the BOP violated the APA and Due Process Clause by increasing the severity of the sanctions for possession of an MP3 player without adequate notice, and (2) the BOP abused its discretion by finding him guilty of Possession of a Hazardous Tool because an MP3 player is not a hazardous tool.
On October 20, 2007, while Petitioner was confined at FCI Cumberland, staff member S. Baldwin issued an Incident Report charging Petitioner with Possession of a Hazardous Tool - an MP3 musical player - in violation of code 108, and Possession of Anything Not Authorized in violation of code 305. The Incident Report describes the incident as follows:
While conducting a cell search of G02-152L, I found an MP3 player and accessories in the locker utilized by inmate Ausberry. This was discovered to be inmate Ausberry's locker by finding several items with his initials on it including a tupperware lid with his name spelled out on the lid. (DHO Report dated Nov. 28, 2007, p. 2.)
The DHO conducted the hearing on October 30, 2007. The witnesses were Petitioner and inmate Terrance Orlando Davis. The DHO issued a report on November 28, 2007. Relying on the Incident Report, Petitioner's statement and the testimony of inmate Davis, the DHO found Petitioner guilty of the prohibited Act Possession of a Hazardous Tool, and imposed the following sanctions: 40 days loss of good conduct time, 60 days disciplinary segregation (with 30 days suspended pending 180 days clear conduct), 120 days loss of visitation and commissary privileges, and a disciplinary transfer. (DHO Report dated Nov. 28, 2007.) The DHO Report explains the findings:
The DHO considered Ausberry's denial of responsibility for the MP3 player. However, Ausberry admitted using the locker where this device was found along with containers bearing Ausberry's name or initials. Another music device was also found in Ausberry's living area which Rodriguez admitted possessing. The DHO would suspect if the second MP3 player also belonged to Rodriguez it would be reasonable for him to also admit his responsibility for this one. However, Rodriguez claimed responsibility for an iPod but he does not claim responsibility for the Creative MP3 player. Ausberry admitted using the locker where the MP3 player was found it is reasonable to conclude he would hide contraband electronic devices in such a location so he could deny any responsibility for committing a prohibited act. Therefore, the DHO does not give much weight to Ausberry's denial of responsibility for the Creative MP3 player.
The DHO gives greater weight to the fact the electronic device was found in a locker used by Ausberry to find he committed the prohibited act of the possession, manufacture, or introduction of a hazardous tool. Inmates are responsible for maintaining their living areas free of contraband and are routinely found to have committed a prohibited act when contraband is discovered in their living area. Therefore, as Ausberry admitted using the locker where the MP3 player was found, and no one else has admitted responsibility for this player, the DHO finds, based on the greater weight of the evidence, Ausberry committed the prohibited act of the possession, manufacture, or introduction of a hazardous tool.
The DHO considers an MP3 player to be hazardous tool based on the ability to receive information recorded by others outside of the prison that is unmonitored by staff. These messages could be useful to arrange an escape, assaults or other disruptive behavior within a BOP facility. By reason of the potential to disrupt the security and orderly running of the institution, the DHO categorizes MP3 players as being the equivalent of a hazardous tool, and properly categorizes this offense at a 100 series level offense, the greatest severity level.
The DHO does not find sufficient evidence to find that Ausberry committed the separate and distinct act of the possession of anything not authorized. Accordingly, the DHO orders this charge dismissed from the Incident Report. (DHO Report dated Nov. 28, 2007, pp. 2-3.)
Petitioner appealed to the Regional Director, who denied the appeal on March 13, 2008, as follows:
The DHO found you committed the prohibited act based upon the following. On October 20, 2007, during a search of your cell, the reporting officer stated he found an MP3 Player and accessories in a locker determined being used by you at that time. The DHO also considered a supporting staff memorandum indicating you admitted using the locker and a photograph of the contraband. Throughout the disciplinary process you denied knowledge of the contraband. You told the DHO that you shared the locker with your cell mate, but the MP3 Player was not yours . . . . [I]t is an inmate's responsibility to keep his or her area free of contraband. You admitted using the locker and had access to what was found inside of the locker. There was no evidence presented that the contraband belonged to someone else. Inmates found in possession ...