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Thomas v. Ortiz

United States District Court, D. New Jersey

February 27, 2019

LAMAR C. THOMAS, Petitioner,
v.
DAVID ORTIZ, Respondent.

          OPINION

          ROBERT B. KUGLER UNITED STATES DISTRICT JUDGE.

         Petitioner, Lamar C. Thomas, is a federal prisoner currently incarcerated at FCI Schuylkill, in Minersville, Pennsylvania. He is proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Respondent filed an Answer opposing relief (ECF No. 4). Additionally, before the Court are Petitioner's unopposed motions for an evidentiary hearing and to expand the record (ECF Nos. 6 & 7). For the reasons set forth below, the Court will grant in part the motion for an evidentiary hearing and hold the hearing after determining whether Petitioner qualifies for the appointment of counsel. The Court will also terminate Petitioner's motion to expand the record, pending resolution of the evidentiary hearing.

         I. BACKGROUND

         This case arises from a disciplinary hearing during Petitioner's incarceration at FCI Schuylkill. In February of 2016, the prison issued an incident report charging Petitioner with possession of a hazardous tool, in violation of Bureau of Prisons Code 108. Earlier that year, officials recovered a number of cell phones at the prison. One of the phones contained several phone numbers from Petitioner's approved phone list, in addition to one phone number that was only on Petitioner's approved phone list, out of all of the inmate lists.

         Initially, officials suspended the incident report pending referral to the Federal Bureau of Investigation (“FBI”) for possible prosecution, but on February 17, 2016, the FBI determined that the incident did not meet the criteria for referral. Later that day, prison officials reissued the incident report to Petitioner and advised him of his rights.

         At the conclusion of the investigation, prison officials referred the incident report to the Unit Disciplinary Committee (“UDC”) for an initial hearing, and an officer again advised Petitioner of his rights. At the initial hearing on February 20, 2016, Petitioner declined to make a statement or call any witnesses, and the UDC referred the matter to Discipline Hearing Officer (“DHO”) Kevin Bittenbender, “because the appropriate sanctions were not available at the UDC level for a Code 108 violation.” (ECF No. 4, at 6). Petitioner then received notice of, and reviewed, his rights for the pending hearing, declined to list any witnesses, and waived his right to a staff representative.

         The hearing before DHO Bittenbender took place on February 29, 2016, and the parties dispute the chain of the events that took place. The parties contest whether DHO Bittenbender asked Petitioner to sign for a monetary sanction, before starting the hearing. According to Petitioner, before DHO Bittenbender sat down, the officer “slid a document across the table.” (ECF No. 1, at 11). In response to Petitioner's request to identify the document, DHO Bittenbender allegedly said “[i]t's for a monetary fine forfeiture and authorization to have $295.00 withdrawn from your account. It's part of the sanctions I'm giving you.” (Id. at 12). Petitioner then stated, “I'm not going to sign that because we haven't even started the hearing yet.” (Id.).

         Thereafter, DHO Bittenbender again advised Petitioner of his rights. Petitioner stated that he understood those rights and waived his right to a staff representative, to call any witnesses, or to make a statement at the hearing. In addition to the incident report and investigation, DHO Bittenbender considered the following:

a photograph taken of the cell phone, dated January 15, 2016; the Chain of Custody Log, dated January 15, 2016; the BOP TRUVIEW Report, dated February 13, 2016 (indicating telephone numbers on Petitioner's list); a BOP TRUFONE Report, dated February 13, 2016, of monitored calls associated with telephone numbers found on the cell phone; and the forensic analysis report of the cell phone, dated February 11, 2016.

(ECF No. 4, at 7 (citing Ex. 8, § III)).

         Ultimately, DHO Bittenbender concluded that the greater weight of the evidence supported a finding that Petitioner committed the act of possessing or introducing a hazardous tool, in violation of Code 108. (Id. (citing Ex. 8, § V)). Petitioner then received the sanctions of “90 days of disciplinary segregation; disallowance of 41 days of good conduct time; forfeiture of 471 days of good conduct time; and a 2-year loss of telephone, e-mail, and visiting privileges.” (Id. (citing Ex. 8, § VI)). According to DHO Bittenbender, he imposed such sanctions because:

possession of a cellular telephone is considered a threat to the security and orderly running of the institution and considered a hazardous tool due to the ability to make unmonitored telephone calls. This tool is described as a hand held portable telephone capable of transmitting messages undetected and unmonitored by staff. This poses a significant security concern since this device can be utilized to have contraband introduced as well as to arrange escapes.

(Id. (citing Ex. 8, § VII)).

         Petitioner appealed DHO Bittenbender's decision to the Bureau of Prison's Northeast Regional Office and then to the Central Office, arguing that DHO Bittenbender was biased and that the sanctions were too severe. At each level of appeal, the Regional Director and Administrator respectively found that DHO Bittenbender based his decision on the weight of the evidence and that the sanctions were not disproportionate to Petitioner's misconduct. Neither decision, however, directly addressed the allegation that DHO Bittenbender ...


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