United States District Court, D. New Jersey
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
L. HILLMAN, U.S.D.J.
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.
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.).
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
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
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.
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.
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.” 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
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.
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