The opinion of the court was delivered by: William W. Caldwell United States District Judge
On December 14, 2006, the pro se petitioner, Steven C. Fernandes, Jr., filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the loss of 141 days' good-time credit as the result of four disciplinary actions taken against him while he was residing at the Coolidge House Residential Re-Entry Center ("RRC"), in Boston, Massachusetts. As part of the sanction on the last disciplinary action, Petitioner was returned to USP-Lewisburg, Lewisburg, Pennsylvania.
Fernandes makes the following due-process claims. First, he did not receive the incident reports within twenty-four hours of the time staff became aware of his involvement in the incidents, as required by the appropriate program statement. He asserts he was prejudiced as a result because the RRC staff had more time to shore up the reports and he had less time to prepare a defense. Also, for several of the reports he was moved back to Lewisburg before being served with them. Second, his hearing was before RRC staff and not the prison discipline hearing officer (DHO), a violation of Bureau of Prison (BOP) regulations and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Third, Petitioner was not given a record of the RRC hearing or of the DHO hearing. Fourth, Petitioner was not given a copy of the DHO reports nor were they placed in his file as required by BOP regulations. Fifth, Petitioner was denied his right to an administrative appeal and in fact his appeal was denied when taken. Sixth, Petitioner lost good-time credits without notice or an opportunity to appeal. Seventh, Petitioner was denied access to the courts because without an appeal he could not exhaust his remedies and then come into court. As relief, Fernandes requests the incident reports be expunged from his record and all good conduct time be restored.
For inmates in federal custody, disciplinary charges are resolved by the process found at 28 C.F.R. § 541.2-541.22, but for an inmate at a community corrections center, like an RRC, such charges are resolved under Program Statement 7300.09, the "Community Corrections Manual"; Program Statement 5270.07, dealing with "Inmate Discipline and Special Housing Units"; and the RRC's "Statement of Work."*fn1
A significant difference is that when BOP rules require a hearing before a DHO, who imposes sanctions, the RRC shall have a hearing before the Center Discipline Committee (CDC) which shall send a report to the DHO and recommend sanctions. The DHO reviews the report and then makes the final decision on sanctions.
As detailed in Respondent's brief at pp. 21-24, the process begins with an incident report. The inmate has to be served with the report within twenty-four hours of the time staff became aware of the inmate's involvement in the incident, and the CDC hearing must be held within three days of the date staff became aware of the inmate's involvement in the incident. If an infraction is found, a CDC report is sent to the DHO, providing the evidence relied upon, the decision, and the reasons for the recommendations. (Doc. 21-3, p. 10). The DHO has three days to review the report and to impose sanctions. The inmate must be given a copy of the report within three to five working days after the DHO sends his report to the RRC. The inmate can appeal through the Administrative Remedy Program.
While he was at the RRC, Petitioner received four incident reports. On July 24, 2006, after a cell phone was found in his room, he was charged with Possession of Anything Not Authorized for Retention or Receipt by an Inmate, and not Issued to him Through Regular Channels. On August 2, 2006, he was charged with Violating a Condition of Programming by not being present at his job site when a spot check was performed. On August 3, 2006, he was charged with Refusing to Provide a Urine Sample or to Take Part in Other Drug-Abuse Testing. On or about August 14, 2006, he was charged with escape from the RRC.
It appears that with the exception of some violations of deadlines for the escape charge, the procedure outlined above was substantially followed, especially for the more important procedural rights. For all charges, Petitioner was timely notified before a hearing took place (or waived such notice), he was given a hearing before the CDC, and was allowed to present evidence. After the CDC submitted its report to the DHO, the DHO imposed, among other sanctions, the loss of good-time credits on each charge, respectively as follows: ten days, five days, sixty-seven days and fifty-nine days.
Respondent concedes that there was a delay between the date the reports were sent to Petitioner and his receipt of them, so he was allowed a late appeal. The sanctions were affirmed at the regional level. See 28 C.F.R. § 541.19. Petitioner's one appeal to the central office on the escape charge was dismissed on a procedural defect.
As Respondent argues, due process in this context requires that "the prisoner [be] given the following three rights: '(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.'" Griffin v. Spratt, 969 ...