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Berry v. Kirby

United States District Court, D. New Jersey

April 24, 2019

LARRY LAVONNE BERRY, Petitioner,
v.
WARDEN MARK A. KIRBY, Respondent.

          Larry Lavonne Berry, No. 70372-056 FCI Fairton Petitioner Pro se

          Caroline A. Sadlowski, Esq. John Andrew Ruymann, Esq. Office of the U.S. Attorney District Of New Jersey Counsel for Respondent

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Larry Lavonne Berry (“Petitioner”), a prisoner presently incarcerated at the Federal Correctional Institution (“FCI”) at Fairton in Fairton, New Jersey, filed this Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241, challenging an institutional disciplinary decision that resulted in, inter alia, a loss of good time credits. ECF No. 1. Respondent submitted an Answer, ECF No. 9, and Petitioner submitted his Reply, ECF No. 14. The Petition is now ripe for disposition. For the reasons that follow, the Petition will be denied.

         I. BACKGROUND

         On June 4, 2009, Petitioner was sentenced in the U.S. District Court for the Eastern District of North Carolina to 258 months' imprisonment for several offenses related to armed bank robbery. See No. 08-cr-247 (E.D. N.C. ). Petitioner is presently incarcerated at the Federal Correctional Institution at Fairton in Fairton, New Jersey, and has a projected release date of March 16, 2027. See No. 17-cv-1983, ECF No. 9 at 7 (D.N.J.).

         On February 1, 2016, while Petitioner was incarcerated at the Federal Correctional Institution at Fort Dix in Fort Dix, New Jersey, Incident Report No. 2811071 was issued charging him with “Use of Any Narcotic, ” a violation of Bureau of Prisons (“BOP”) Code 112. See ECF No. 9-2 at 4. The incident report written by Special Investigative Services Officer B. Virgillo provides as follows:

I received written notification from Phamatech Laboratories which stated that specimen number BOP0002433798, which was tested under Suspect, had tested positive for Marijuana metabolite. Specimen number BOP0002433798 was assigned to the urine sample for inmate Berry, Larry #70372-056, who provided it on January 12, 2016 at 10:50. Health Services was notified and provided a memorandum on February 1, 2016, 12:30, stating that medication was not prescribed to inmate Berry which could have caused a positive test for the above mentioned drug.

Id.

         On February 1, 2016, at approximately 2:48 p.m., the incident report was delivered to Petitioner. Id. Petitioner was advised of his right to remain silent during the disciplinary process but stated to the investigating officer that, “I was never order [sic] to give urine sample to the staff member.” Id. at 5. Per the incident report, the investigating staff member referred the incident report to the Unit Discipline Committee (“UDC”) for a hearing due to the seriousness of the infraction. Id.

         On February 5, 2016, the initial hearing was held before the UDC. Id. at 5. At the hearing, Petitioner stated that he understood his rights and that “[t]his place is a set up.” Id. at 4-5. The initial hearing notes provide that Petitioner declined to call any witnesses. Id. The UDC concluded that Petitioner had been appropriately charged with a violation of Code 112 and referred the case to the Discipline Hearing Officer (“DHO”). Id. If Petitioner were found guilty, the UDC recommended a loss of good conduct time and a loss of all privileges for a period of time. Id. Petitioner was advised that day of his rights before the DHO. See id. at 7. Petitioner did not request a staff representative or witnesses in the proceedings before the DHO. See id. at 9.

         On February 26, 2016, the DHO convened the hearing. See id. at 11. At the hearing, Petitioner did not request a staff representative or witnesses and stated that he understood his rights and was ready to proceed. Id. Petitioner denied that he committed the prohibited act. Id. He admitted that he had signed the chain-of-custody form for the urine sample, but claimed that, contrary to his inmate certification on the form, he did not provide a urine sample. The chain-of-custody form contains a section entitled “inmate certification, ” in which Petitioner certified: “I have provided this specimen for the purpose of a drug screen. I acknowledge that the container was sealed with the tamper-proof seal in my presence and that the specimen number provided on this form and on the label affixed to the specimen container are the same.”[1] It does not appear from the DHO report that Petitioner argued that the incident report was issued in retaliation for his refusal to withdraw complaints he submitted under the Prison Rape Elimination Act (“PREA”), an issue he raises for the first time in this Petition. See generally ECF No. 9-2 at 11-12.

         Based on all the evidence, the DHO determined that Petitioner committed the prohibited act as charged. Id. at 12. The DHO relied upon the chain-of-custody form for the urine sample that had been drawn from Petitioner, a report from Pharmatech Laboratories indicating that said urine specimen had tested positive for marijuana, and a memorandum signed by the chief pharmacist at FCI Fort Dix providing that Petitioner had not been prescribed any medication that would cause a false positive. See ECF No. 9-2 at 12 (DHO report), 15 (chain-of-custody form); 16 (lab report); 17 (memorandum). The DHO also noted that he considered Petitioner's statement that he had not provided the urine sample but gave greater weight to the evidence provided by staff. Id. at 12.

         The DHO sanctioned Petitioner with a loss of 40 days of good conduct time and 15 days of disciplinary segregation, which was suspended pending 90 days of clear conduct. Id. at 13. The DHO found that these sanctions were warranted because the use of drugs not prescribed by BOP medical staff demonstrates a disregard for the rules and regulations at FCI Fort Dix and could also result in Petitioner becoming indebted to other individuals for providing drugs, which could lead to physical violence. Id. In addition, the DHO explained that the sanctions were imposed to ...


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