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Jones v. Ortiz

United States District Court, D. New Jersey

January 31, 2019

BYRON JONES, Petitioner,
DAVID E. ORTIZ, Respondent.

          BYRON JONES, Petitioner Pro Se

          CRAIG CARPENITO, By: ANNE B. TAYLOR, Attorney for Respondent David Ortiz




         This matter comes before the Court on Byron Jones' (“Petitioner”) petition for writ of habeas corpus challenging a disciplinary proceeding. [Petition, Docket Entry 1]. Respondent David Ortiz opposes the petition. [Answer, Docket Entry 4]. The parties have submitted supplemental briefing at the request of the Court on the issue of the denial of Petitioner's request for a polygraph test in connection with defending disciplinary charges. [Docket Entries 7 & 12]. The petition is being decided on the papers pursuant to Fed.R.Civ.P. 78(b). For the reasons set forth below, the petition is granted in part. Preliminarily, the Court determines that the BOP did not violate any due process right by denying a polygraph examination. The Court vacates the stealing charge, while the Court upholds the insolence charge, and accompanying sanction of loss of 14-days of good credit time and remands the matter to the Bureau of Prisons for recalculation of Petitioner's sentence and correction of Petitioner's record.


         Petitioner is a convicted and sentenced federal prisoner. He now challenges the result of a disciplinary proceeding conducted by the Federal Bureau of Prisons (“BOP”) at USP Lewisburg, Pennsylvania, [1] finding him guilty of violating Code 219 (Stealing) and Code 312 (Insolence towards a staff member). See also 28 C.F.R. § 541.3 (Table 1). The reporting officer described the incident as follows:

On [August 5, 2015] at approximately 10:40 AM, inmate Jones, Byron #09702-058 was exiting the LEC food service and was attempting to remove food service items by concealing food service items. These items were 1 banana, 1 peach, and 2 pieces of bread. I then ordered the inmate to place the food items in the trash or eat the items in food service. Inmate Jones then proceeded to exit the dining hall with these items and loudly stated “In fucking policy states 1 piece of fruit is allowed.” There is currently a sign placed at the exit of the LEC food service that states No Food Service Items Allowed Out Of Food Service. This Inmate continued to be disruptive and challenge my direct order in front of other inmates during main line until he was placed in the R&D holding cell.

         [Incident Report, Docket Entry 1-2 at 2 § 11]. Petitioner was charged with violating Codes 307 (refusing to obey an order) and 305 (possession of anything not authorized) as well as stealing and insolence. [Id. §§ 9-10]. The matter was referred to the Unit Discipline Committee (“UDC”). The hearing took place 24 hours later on August 6, 2015. [Id. § 21].

         Petitioner argued before the UDC that the charges were retaliatory for pointing out a discrepancy between the posted signs and the policy in the inmate handbook. [Id. § 17]. He stated that he “left the kitchen with a banana in [his] hand [and] noticed that C.O. Sheets was taking bananas as people were leaving food service by the bulletin board area.” [Id.]. He asserts that once he gave Officer Sheets the banana, he informed Officer Sheets that he understood the policy to be that inmates were permitted to take one piece of fruit from Food Services. [Id.]. Officer Sheets showed Petitioner the sign stating that all food was to remain in the food service area, and Petitioner asserted that he told Officer Sheets: “I understand what the sign says but policy says something else and I'm going to the computer to print it off.” [Id.]. According to Petitioner, Officer Sheets came over to him at the computer and began to write up the charges. [Id.].

         The UDC determined that Petitioner had committed the prohibited acts based on Officer Sheets' account. [Id. § 19]. It referred the matter to the Disciplinary Hearing Officer (“DHO”) for a further hearing. [Id. § 20].

         The hearing occurred on August 12, 2015. Petitioner requested three inmate witness to appear on his behalf: Rasheed Harrell, Keon Lovelady, and David Colon. [DHO Report, Docket Entry 1-2, § III.C.2]. He waived his right to a staff representative. [Id. § II.A]. At the hearing, Petitioner testified on his own behalf and argued that he was given the food as part of his religious diet accommodation. [Id. § III.B]. He stated that “‘the only part of the incident report that is true is that I had one banana, one peach, and two pieces of bread.'” [Id.]. According to the report, Petitioner testified that he had the banana in his hand and kept the peach in his shirt pocket and the bread in his pants pocket. [Id.]. He asserted he handed the banana to the officer when confronted at the Food Services door with the sign that no food was to be removed from Food Services. [Id.]. He stated he told the officer that prison policy permitted inmates to remove one piece of fruit from the hall but denied raising his voice to the officer or using foul language. [Id.]. Petitioner testified “he removed the bread from Food Services to ‘feed the animals' . . ., and ‘the peach wasn't ripe yet, I was going to eat that later.'” [Id.]. He presented signs from around the prison about feeding the wildlife in support of his argument that it was common knowledge that inmates fed the animals. [Id.]. See also [Petitioner's Exhibit F, Docket Entry 1-2 at 14-15 (“Please do not put cat food on the sidewalk . . . . Instead place any food in the grass away from the building!); (“Do not feed the animals (or at least not right here! - place it on the grass)”)].

         Petitioner's witnesses testified as to Petitioner's encounter with Officer Sheets. [Id. § III.C.2]. Harrell denied hearing Petitioner argue with Officer Sheets and described Petitioner's tone as “‘completely respectful.'” On the other hand, Lovelady testified that Petitioner and Officer Sheets were speaking to each other in raised voices. “‘It was a confrontation.'” [Id. (emphasis in original)]. He denied hearing Petitioner use any profanity. Colon described Petitioner's tone as “‘heated'” but also denied hearing Petitioner use any profanity. [Id. (emphasis in original)].

         The DHO found that the greater weight of the evidence supported a finding that Petitioner had committed the prohibited acts of attempted stealing and insolence towards a staff member. [Id. ยง V]. He credited the testimony of inmates Lovelady and Colon who testified that Petitioner raised ...

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