The opinion of the court was delivered by: Bumb, District Judge
William Ortiz filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 seeking expungement of his record and restoration of 40 days of good conduct time, which had been disallowed as a disciplinary sanction for committing the prohibited act of Possessing a Hazardous Tool (Code 108). Copies of the Bureau of Prisons' ("BOP") List of Prohibited Acts; BOP Proposed Rule Changes; Respondent's Answer in 10-251 (RBK) Hudson v. Zickefoose; an affidavit from Petitioner regarding the handbook; Petitioner's Appeal to the Central Office; and the Disciplinary Hearing Officer's Report are all attached to the Petition. For the reasons expressed below, the Court will deny 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 Due Process
Clause by increasing the severity of the sanctions for possession of a
Bluetooth cellular device without adequate notice; (2) the BOP's
failure to abide by the Administrative Procedure Act (APA) when
changing the rule regarding possession of a cell phone renders the
rule unenforceable; (3) the rule prohibiting cell phones is void for
vagueness; and (4) Petitioner has been treated differently than other
similarly situated prisoners, which violates the Equal Protection
On August 28, 2009, Petitioner, who was an inmate at FCI McKean in Bradford, Pennsylvania at the time, was charged with Possession of a Hazardous Tool, Code 108, and Lying, Code 313.
(Resp.'s Br. Ex. 4.) According to the incident report regarding the event:
On the above date inmate ORTIZ #10731-055 was instructed to get out of bed and leave his assigned living quarters (E04-111) so a random search could be conducted. A Blue Tooth cell phone device was found under the desk. A pair of black Timberland boots were found under the bed. ORTIZ stated "I brought the boots from my last spot." A check of ORTIZ's property form in his central file showed no black boots but the property forms in ORTIZ's possession showed one pair of black boots. Inmate ORTIZ then stated "I found them, somebody left them here." (Id. at § 11.) On August 31, 2009, the initial hearing was held before the Unit Discipline Committee ("UDC"). (Id. at § 21.) At the UDC hearing, Ortiz stated, "My bunkie has nothing to do with it. I take responsibility for the Blue Tooth. I told Chappel [the reporting officer] the boots were mine." (Id. at § 17.) At the conclusion of the hearing, the UDC referred the incident report to the Discipline Hearing Officer ("DHO") for disposition. (Id. at § 20.)
On September 3, 2009, the DHO conducted a hearing. (Resp.'s Ex. 5, § I(B).) At the hearing, Ortiz admitted the Blue Tooth device was his and that his cell-mate had nothing to do with it. (Id. at § III(B).) He stated he felt he was being charged with the wrong code. (Id.) He stated he did not have a cell phone, and should be charged with a Code 305 violation, not a Code 108. (Id.) He also admitted he lied to the Officer about his boots. (Id.) The DHO found that Petitioner was guilty of committing the two offenses and imposed several sanctions: 30 days in disciplinary segregation; visiting restrictions for one year; a recommended disciplinary transfer; disallowance of 40 days good conduct time for Code 108; disallowance of 13 days good conduct time for Code 313. (Id. at § VI.) On November 3, 2009, Petitioner was transferred to FCI Fort Dix. (Resp.'s Ex. 3 at 1.)
On or about November 27, 2009, Ortiz appealed the decision of the DHO to the BOP North East Regional Office. (Resp.'s Ex. 2.) He argued that he should have been charged with a Code 305 violation, because he had a Blue Tooth earpiece, not a cell phone. He also claimed he was treated differently than other inmates, in violation of Equal Protection, but provided no specifics. He did not assert that he was unaware of the increase in the severity level of discipline for being caught with a cell phone or related equipment. (Id.; Declaration of Tara Moran, ¶ 4.) The Regional Director denied Petitioner's appeal because possession of a cell phone or related equipment is a significant security concern, and inmates received notice of the Code change in the inmate handbook. (Resp.'s Ex. 2.)
On or about January 17, 2010, Petitioner submitted an appeal to the Central Office. (Id.) Petitioner again stated that he should have been charged with a Code 305, and that he was treated differently than other similarly situated inmates. He argued that the charging officer must have had something against him, stating his belief that other inmates were charged with a Code 305 offense for this type of act. He also argued that not charging him with a Code 305 offense was malicious prosecution, in violation of the APA. (Id.) The Central Office denied the appeal, agreeing with the determinations made by the Discipline Hearing Officer. (Id.)
On August 16, 2010, Petitioner filed the instant Petition for Writ of Habeas Corpus under 28 U.S.C. §2241. Petitioner argues:
(1) the BOP violated the Due Process Clause by increasing the severity of the sanctions for possession of a Bluetooth cellular device without adequate notice; (2) the BOP's failure to abide by the APA when changing the rule regarding possession of a cell phone renders the rule unenforceable; (3) the rule prohibiting cell phones is void for vagueness; and (4) Petitioner has been treated differently than other similarly situated prisoners, which violates the Equal Protection Clause.
On October 7, 2010, Respondent filed her Answer to the Petition. (Docket Entry No. 5.) Respondent argues that: (1) the claims of lack of notice, violation of the APA, and that Code 108 is void for vagueness, must be dismissed because Petitioner has not properly exhausted his administrative remedies with respect to these issues; (2) the record contains some evidence that Petitioner committed the prohibited act of possessing a hazardous tool which is all that Due Process requires; (3) Petitioner had notice that possession of an electronic communication device or related equipment would be charged as a Code 108 prohibited act; (4) Petitioner's void for vagueness argument lacks merit as there is no requirement that every disciplinary prohibited act be spelled out with exactness; (5) the Equal Protection claim is meritless; and (6) the BOP was not required to follow APA promulgation procedures in making cell phone or related equipment possession a Code 108 hazardous tool offense.