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Bermudez v. Holt

January 4, 2010

RICHIE BERMUDEZ, PETITIONER
v.
RONNIE HOLT, WARDEN, RESPONDENT



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Presently before the court is a petition for writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2241 filed by petitioner, Richie Bermudez ("Bermudez"), who, at the time, was incarcerated at the Federal Prison Camp at Canaan, Waymart, Pennsylvania.*fn1 Bermudez contends that respondent violated his due process rights and the Administrative Procedure Act in the context of a disciplinary hearing. (Doc. 1, at 1.) The petition is ripe for disposition and, for the reasons that follow, will be denied.

I. Background

On September 4, 2008, Bermudez received an incident report charging him with "Use of telephone for abuses other than criminal activity" in violation of Code 297 based on the following:

While [E. Barrett, Senior Officer Specialist] was monitoring recorded phone calls from 8-30-08, [he] listened to a call made by I/M Bermudez, Richie #56531-054 from unit GA, staion [sic] #7424 at 6:38 p.m. During this call I/M Bermudez called a male at [redacted text] and the male said, "I'm talking to Remmy on the computer", "I/M asked male to ask Remmy what the house number is, or call his cell phone and hurry up I only got five minutes left." "I/M asked male to ask Remmy when he is coming to the city." "Male tells I/M he is not picking up but he is still on the computer." "Male said Tatiana is also on-line." I/M said ask her what her house number is". "Male said Remmy told me she ain't home and I/M said ask him what her house number is". "Male said I'm waiting for a response, I got it [redacted text]". "I/M told male to ask Remmy why she ain't answering and then the I/M said call him on his cell phone and I'll call you in a half-hour.["] (Id.) During his interview with the investigating officer, Bermudez stated that "[t]his was just my nephew calling my other nephew to get the number." (Doc. 7-2, at 19.) Upon completion of the investigation, it was concluded that "[d]ue to the cooborating [sic] and detailed information provided by Officer Barrett and inmate Bermudez [sic] admission he circumvented telephone procedres [sic], it is recommended this report be forwarded to UDC for further hearing. This type of behavior is not consistent with the safe and orderly running of an institution and will not be tolerated at FPC Canaan." (Id.) The UDC reviewed the matter and referred it to the Disciplinary Hearing Officer ("DHO") based on the severity level of the incident and the applicable sanctions.

On September 5, 2008, after being advised of the rights associated with the process, Bermudez signed the Inmate Rights at Discipline Hearing form. (Doc. 7-2, at 21, 23.) He chose not to call witnesses, but did exercise his right to have either staff representative Mr. Roberts or Mr. Mercado assist him at the hearing. (Id. at 23.) Mr. Roberts agreed to serve as the staff representative. (Id. at 25.)

The hearing commenced on September 16, 2008. (Doc. 7-2, at 27.) During his inmate statement, Bermudez stated that the "phone call was taken out of context" and alleged that he made the following comment during the conversation: "What are you trying to get me in trouble." (Id. at 28.) Consequently, the DHO suspended the hearing "to monitor the recorded conversation with Bermudez' elective staff representative." (Id.) According to the DHO, "[b]oth Bermudez's staff representative and I listened to the recording in SPC Canaan's Message Center after attempts to listen to the call in the Case Manager's office failed. Since keys, bed books, staff radios, and other equipment are stored in the Message Center, inmates are not permitted entry. Given the need to preserve institutional security, Bermudez could not be granted entry to the Message Center." (Doc. 7-2, Declaration of Disciplinary Hearing Officer Marc Renda ("DHO Renda Decl."), at 6, ¶ 18.) "Bermudez never stated he wanted to personally listen to the recording." (Id.)

When the hearing resumed, the staff representative represented that he met with Bermudez prior to the hearing to discuss the case and review all relevant documents. (Doc. 7-2, at 27.) He noted no discrepancies in the disciplinary process. (Id.) Bermudez disputed the charge against him stating that both parties involved in the conversation were on his approved telephone list. (Doc. 7-2, at 27.) He also made the following statements:

"I called to obtain a number from a family member. As a coincidence he was also talking to my other niece (Tatiana)."

"I told him to ask him when he's coming to the city" "I said call him on his cell-phone and I'll call back in a half hour." "Ask Remmy what the house number is, or call his cell phone and hurry up I only got five minutes left." (Doc. 7-2 at 28.)

After considering all of the evidence, the DHO found based on the greater weight of the evidence that "the prohibited act of the Use of Telephone for Abuses Other Than Criminal Activity (Code 297) was committed." (Id. at 29.) In arriving at this conclusion, he considered the account of the reporting officer, Bermudez's argument that the individuals with whom he was communicating were on his approved telephone list, the recording of the telephone call, and Bermudez's statements during the investigation and hearings. The DHO specifically found that:

Even if Bermudez's claim [that] the unapproved parties were on his approved visiting list was substantiated it would not exculpate him of the act of communicating, attempting to communicate, or share information, fact or data via an approved party on the I[nmate] T[telephone] S[ystem]. Secondly, both the DHO and staff representative monitored the recorded conversation which corroborates the reporting staff members account of the incident, nor was it conveyed the approved parties actions were prohibited. Bermudez is informed and conscious of the fact the approved party is communicating or attempting to communicate with other(s) on a computer and on a cell-phone. Regardless of the message conveyed, the approved party is acting as a medium to share information from other unapproved parties through unauthorized avenues. (Doc. 7-2, at 29.) In sanctioning him with disallowance of 27 days of good conduct time, a suspended 15 day sentence for disciplinary segregation, and loss of telephone privileges, the DHO reasoned as follows:

The use of a telephone while incarcerated is a privilege, not a right. It is an important part of the institution's security that inmates only be allowed to contact those persons authorized. Not only is this an internal security matter but the Bureau of Prisons has an obligation, to the public at large, to ensure that inmates are not using the telephone to contact unauthorized persons, for criminal activity, drug transactions, conducting businesses or to threaten ...


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