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Neil Rosenstein v. Donna Zickefoose

May 3, 2011

NEIL ROSENSTEIN,
PETITIONER,
v.
DONNA ZICKEFOOSE, RESPONDENTS.



The opinion of the court was delivered by: Bumb, District Judge

NOT FOR PUBLICATION

OPINION

Neil Rosenstein, an inmate incarcerated at FCI Fort Dix in New Jersey, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 seeking restoration of good conduct time forfeited as a disciplinary sanction for possession of a narcotic or drug. Respondents filed an Answer, together with the declaration of Tara Moran and relevant documents. Petitioner filed a Reply. For the reasons expressed below, the Court will dismiss the Petition with prejudice.

I. BACKGROUND

Petitioner challenges the loss of 40 days of earned good conduct time imposed by the Bureau of Prisons ("BOP") as a disciplinary sanction while Petitioner was confined at FCI Fort Dix.*fn1 Petitioner argues that the BOP violated Due Process and should be estopped from enforcing the sanction. Respondents filed an Answer, arguing that the BOP did not abuse its discretion or violate federal law.

The material facts are undisputed. On October 30, 2008, Judge William H. Walls sentenced Petitioner to a 51-month term of incarceration based on his plea of guilty to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).*fn2 See United States v. Rosenstein, Crim. No. 08-0325 (WHW) judgment (D.N.J. Nov. 6, 2008). On January 5, 2009, Petitioner self-surrendered at FCI Fort Dix. At the time of intake, Petitioner turned over to BOP official Syjongtian four prescribed medications that Petitioner had obtained a few days before from an outside pharmacy, i.e., prozac (20 mg., one capsule 2 X/day), lipitor (20 mg., one tablet daily), alprazolam (0.5 mg., one tablet at bedtime as needed), and zolpidem tartrate (10 mg., one tablet at bedtime as needed). (Docket Entry #9-2, p. 59.) The next day, January 6, 2009, Syjongtian informed Petitioner that Dr. Chung had verbally authorized Petitioner to continue to receive these medications at pill line until Dr. Chung had completed an evaluation. The following administrative note was entered in Petitioner's medical record by Mr. Syjongtian and cosigned by Dr. Chung on January 6, 2009:

As per EMT patient presented to HSU for his pill line medication. Patient is a self-surrender and brought medications from the "streets." Unit MD consulted and verbally ordered to give medications on the pill line until he will be fully evaluated in the clinic by him. Pharmacy notified about this verbal order by Unit MD. (Docket Entry 9-2, p. 34.)

From January 7, 2009, through January 12, 2009, at approximately 5:00 p.m. each day, an unspecified prison official gave Petitioner that day's dosage of each of these previously prescribed medications. Thus, on each of these six days, a prison official gave Petitioner one alprazolam tablet. According to Petitioner, the alprazolam tablets "were not required to be consumed at the pill line in the presence of the pharmacist and were prescribed to be 'taken at bedtime as needed.'" (Docket Entry #1, p. 1.) Because Petitioner did not need the alprazolam on three out of the seven days he received a tablet, Petitioner took each of the three unconsumed alprazolam tablets back to his cell and stored them in an empty pill container which he kept in his secure locker. On January 12, 2009, Dr. Chung evaluated Petitioner and informed him that alprazolam and zolpidem were not part of the BOP's National Drug Formulary, and "Dr. Chung withdrew the order for the Petitioner to continue receiving the sleep aids (alprazolam and zolpidem tartrate). However, the Petitioner had received these sleep aid medications, one tablet daily from January 7th through January 12, for six days - hence he was issued six tablets each of the alprazolam and zolpidem tartrate from the pill line, under the direct verbal order of Dr. Chung on January 6th." (Docket Entry #10, p. 8) (emphasis in original).

Respondent does not dispute Petitioner's contention that "at no time was the petitioner ordered or instructed to consume or ingest the subject alprazolam at the pill line, when the instructions for the medication state it was to be taken at bedtime, as needed." (Docket Entry #10, p. 11.) Nor does Respondent dispute Petitioner's contention that no official verbally informed "Petitioner that he was refrained or not allowed to retain or store any unused medications within his secured storage locker." Id.

In June 2009, during a search of Petitioner's locker, Correctional Officer Maresca "discovered an orange pill bottle with the label removed. Inside the bottle, were three orange colored pills marked (G3720)."*fn3 (Docket Entry #9-2, p. 19.) Officer Maresca prepared and served Petitioner with an Incident Report charging him with disciplinary infractions. Id.

Disciplinary Hearing Officer Boyce conducted the first disciplinary hearing on July 20, 2009. On August 5, 2009, Boyce issued a Discipline Hearing Officer Report finding Petitioner guilty of violating code 112, possession/use of narcotics not prescribed for the individual by the medical staff. (Docket Entry #9-2, p. 23.) The following sanctions were imposed: 30 days in disciplinary segregation, suspended pending 180 days clear conduct; loss of 40 days good conduct time; loss of 30 days of phone and commissary privileges from July 20, 2009 to August 18, 2009; and loss of visitation for 12 months, suspended pending 180 days of clear conduct. Id. p. 25.

Petitioner appealed to the Warden and then the Northeast Region, both of which upheld the sanctions. He appealed to the Central Office, and on June 2, 2010, Harrell Watts, National Inmate Appeals Administrator, denied the appeal as follows:

You appeal the July 20, 2009, decision of the Discipline Hearing Officer (DHO) in which you were found to have committed the prohibited act Use [or Possession] of Any Drugs Not Prescribed for the Individual by the Medical Staff (code 112).

We reviewed the disciplinary proceeding . . . We concluded the DHO considered all relevant evidence, relying upon its greater weight . . . to support the decision. You admitted stashing medication issued to you at pill line. Such medication is intended for immediate use, otherwise it would not be doled out dose by dose. Based on the evidence presented, the ...


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