United States District Court, D. New Jersey
JONES, Petitioner Pro Se
CARPENITO, By: ANNE B. TAYLOR, Attorney for Respondent David
B. SIMANDLE U.S. DISTRICT JUDGE.
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
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,  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
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].
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.
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].
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)”)].
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
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. § V]. He credited the testimony of inmates
Lovelady and Colon who testified that Petitioner raised ...