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Almanzar v. Hollingsworth

United States District Court, D. New Jersey

October 2, 2017

ROGER JOSE ALMANZAR, Petitioner,
v.
J. HOLLINGSWORTH, Respondent.

          ROGER JOSE ALMANZAR, Petitioner pro se

          CAROLINE A. SADLOWSKI, AUSA, IRENE E. DOWDY, AUSA, Attorneys for Respondent J. Hollingsworth

          CHRISTINA SAETTA CLARK Senior Attorney Advisor Federal Bureau of Prisons Of Counsel

          OPINION

          JEROME B. SIMANDLE U.S. District Judge.

         I. INTRODUCTION

         This matter comes before the Court on Roger Jose Almanzar's petition for writ of habeas corpus challenging a disciplinary proceeding conducted by the Bureau of Prisons ("BOP"). Petition, Docket Entry 3. Respondent J. Hollingsworth opposes the petition. Answer, Docket Entry 5. The petition is being decided on the papers pursuant to Fed. R. Civ. Pro. 78(b). For the reasons set forth below, the petition is denied.

         II. BACKGROUND

         Petitioner, a convicted and sentenced federal prisoner, was incarcerated at USP Canaan, Pennsylvania on January 6, 2015. Petition at 2. According to Incident Report 2668415, a staff member searched Petitioner's assigned locker, 003 Upper, around 8:05 a.m. Incident Report, Declaration of Tara Moran ("Moran Dec") Exhibit 4 § 11. During the search, the staff member discovered "a plastic bottle containing an unknown substance." Id. He tested the substance using Alco-Sensor III device number 1213955.[1]The device "produced a reading of .061 indicating the presence of alcohol." Id. The bottle was secured. Petitioner was charged with a violation of Code 113, possession of intoxicants.[2]Id. §§ 9-10. Lieutenant Hagemeyer delivered a copy of the incident report to Petitioner at 9:00 a.m. and read Petitioner his legal rights. Id. §§ 14, 23. Petitioner stated: "It's not mine." Id. § 17. The report was ultimately referred to Discipline Hearing Officer ("DHO") Marc Renda for a hearing. Id. § 20. Petitioner did not request that any witnesses or evidence be presented. Id. § 25. He refused to sign the Inmate Rights Form. Moran Dec. Exhibit 5.

         The hearing was originally scheduled for January 16, 2015 but was postponed when Petitioner asked for a staff representative. A. Rivera, Cook Supervisor, agreed to serve as Petitioner's representative and acknowledged his obligations. The hearing was rescheduled for January 21, 2015. DHO Report, Moran Dec. Exhibit 8 § I.A. Petitioner appeared at the hearing with Mr. Rivera and denied possessing alcohol. Petitioner testified "that his fingerprints would not be present on the plastic bottle which contained tomato sauce, which he was going to cook with. He further admitted that he had obtained the tomato sauce from the 'warehouse.' He stated that he planned to cook with said tomato sauce." Brief in Support at 3. He also stated "If you get finger prints mine won't be on it. You can breathalyze me. If you check the cameras maybe you can see who put it there. I had one bottle outside my locker which had tomato sauce in it." DHO Report § III.B. Petitioner indicated he did not know how the bottle got in his locker, who would have put it there, or why someone would have done so. Id.

         The DHO considered Petitioner's testimony, the Incident Report, and the photograph of the bottle and Alco-Sensor reading and found that the greater weight of the evidence indicated Petitioner had committed the offense of possessing an intoxicant. Id. §§ III.D, IV. The DHO determined Petitioner's testimony "fail[ed] to exculpate him of the charge." Id. § V. Although Petitioner did not ask prison officials to test the bottle for fingerprints prior to the hearing, the DHO found that fingerprinting the bottle was neither required nor necessary because Petitioner was responsible for the contents of his assigned area[3] even if his fingerprints were not on the bottle. Id. The DHO further concluded a breathalyzer test "would be equally nugatory and unavailing" because the charge did not depend on Petitioner imbibing the alcohol but "whether a substance testing positive for intoxicants was [discovered] in [Petitioner's] assigned living area." Id. The DHO noted that Petitioner's admission that he took a bottle of tomato sauce from the warehouse to cook with was an admission of stealing and/or possession of stolen property. Id. The DHO also rejected Petitioner's request to review the cameras in the living area because under the doctrine of constructive possession, "even if it was demonstrated another inmate placed the bottle in [Petitioner's] locker it would be immaterial. [Petitioner] also has a responsibility to keep his living area free of contraband." Id.

         The DHO sustained the charges against Petitioner and sanctioned him by disallowing 40 days of good credit time in order to "demonstrate the seriousness of [Petitioner's] actions" and to deter Petitioner and other inmates in the future. Id. § VII. Petitioner purportedly received a copy of the DHO Report on January 22, 2015. Id.

         III. ANALYSIS

         Petitioner argues he was denied due process of law in the course of his disciplinary hearing because the evidence was insufficient to support the charges.[4]

         A. Exhaustion of ...


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