The opinion of the court was delivered by: Hon. Renee Marie Bumb
Christopher Bouchard, a federal inmate confined at FCI Fairton in New Jersey, 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 the reasons expressed below and because the face of the Petition and attachments show that Petitioner is not entitled to relief, this Court will summarily dismiss the Petition.
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.
Petitioner executed the Petition on June 2, 2011. The Clerk received it on June 7, 2011. Petitioner asserts the following facts:
On or about April 30, 2010 the reporting officer J. Ellis signed an Incident Report (I/R) No. 2009791 that concluded that Petitioner possessed a hazardous tool a cell phone charger a code 108 violation in the Federal Bureau of Prisons (F.B.O.P.) a Greatest Severity Level violation . . . . Petitioner never admitted that the contraband was His . . . . That resulted in the Petitioner losing 108 days of non vested good time and the disallowance of 40 days GCT among other sanctions. The Petitioner was charged with one Act, Possession of a Cell phone. (Docket Entry #1, pp. 3-4.)
Petitioner further asserts that he exhausted the BOP's three-step Administrative Remedy Program. Attached to the Petition are the following documents: (1) Incident Report dated April 30, 2010; (2) Discipline Hearing Officer Report; (3) Regional Director's Response to Petitioner's appeal of the sanction, dated July 23, 2010; and (4) receipt dated January 6, 2011, indicating that the Administrative Remedy Coordinator of the BOP's Central Office received Petitioner's appeal on December 1, 2011, and that the response is due on January 10, 2011. (Docket Entry #1-1, pp. 1-6.)
The Incident Report charges Petitioner with a violation of Code 108, Possession, Manufacture, or Introduction of a Hazardous Tool: "On April 30, 2010 at approximately 7:10 pm while conducting a shake down of inmate Bouchards 03754-049 secure wall locker I located a samsung cell phone charger. The charger was altered with other wires and another connection. The phone charger was found inside of a sock on the top shelf of his locker." (Docket Entry #1-1, p. 1.)
After conducting a hearing on May 7, 2010, the Disciplinary Hearing Officer found Petitioner guilty of code 108. Petitioner appealed, and on July 23, 2010, J.L. Norwood, Regional Director, denied the appeal as follows:
You appeal the May 7, 2010 decision of the Discipline Hearing Officer (DHO) at FCI Fort Dix, finding you committed the prohibited act of Possessing a Hazardous Tool (cell phone charger), Code 108, Incident Report No. 2009791. You contend the Bureau of Prisons (BOP) is misinterpreting Code 108, which is clearly defined and does not include a cell phone. You state the BOP has circumvented the Administrative Procedures Act and there is insufficient notice of this violation. You argue that you are being denied equal protection by having greater sanctions imposed than for a code 305, the more appropriate charge.
In your appeal, you do not deny that a Samsung cell phone charger was found in your secured wall locker, hidden inside a sock on April 30, 2010. At the DHO hearing, you stated you keep your locker unlocked all the time and implied someone put the charger in your locker. The DHO also considered staff memoranda and a photograph of the charger.
You are responsible for securing your personal property and for all contraband found in your assigned areas. You did not present any evidence the cell phone charger belonged to someone else and the DHO reasonably determined you possessed contraband hazardous to institution security. Although you believe you were charged with the wrong offense code, by memorandum dated December 28, 2009, the Warden at FCI Fort Dix advised the inmate population than an inmate found in possession of electronic communication devices or related equipment such as cellphones, chargers, video equipment, etc., may be charged with a violation of Code 108. We concur with this decision and find you were appropriately charged and sanctioned.
The record in this case reflects substantial compliance with Program Statement 5270.08, Inmate Discipline. The decision of the DHO was based upon the greater weight of the evidence and the sanctions imposed were consistent with the severity level of the prohibited act. The sanctions imposed: 60 days disciplinary segregation, disallow 40 days god conduct time, forfeit 108 days non-vested good conduct time, 18 months loss of telephone privileges and 90 days loss of commissary and ...