The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Presently before the Court is Germaine Greene's petition for a writ of habeas corpus [ECF No. 5], which he filed pursuant to 28 U.S.C. § 2241. He challenges a disciplinary action taken when he was incarcerated at the Federal Correctional Institution ("FCI"), Fort Dix, New Jersey, in connection with Incident Report No. 2042304, issued on July 18, 2010. He was charged with Possession of a Hazardous Tool and Assaulting Any Person (Minor), in violation of Codes 108 and 224, respectively. Greene alleges that he was not permitted to present witness statements in his own defense, the evidence relied upon by the Discipline Hearing Officer ("DHO") did not support the charge, and the DHO was not impartial. He also challenges the Bureau of Prisons' (the "BOP's") classification of cell phones as "hazardous tools" and contends, inter alia, that the BOP violated the Administrative Procedures Act, 5 U.S.C. § 551, et seq. ("APA") when it instituted the rule that classified cell phones as "hazardous tools." As relief, he seeks an order reversing the decision of the DHO so that he may receive sentencing credits that he claims he is entitled.
On June 25, 2007, Greene was sentenced in the U.S. District Court for the Central District of California to 78 months of imprisonment, with a five year term of supervised release to follow, for Transportation of a Minor with Intent That the Minor Engage in Prostitution, in violation of 18 U.S.C. § 2423(A). His current projected release date is in October 2011, assuming he receives all good conduct time available.
During the events in question, Greene was incarcerated at FCI Fort Dix. Inmates there are notified that if they are found in possession of electronic communication devises, including a cell phone, they "will be charged with a violation of Code 108, Possession, Manufacture, or Introduction of a Hazardous Tool. (ECF No. 13-3 at 4, 6).*fn2 At the time that the incident at issue in this case occurred, Code 108 read:
Possession, manufacture, or introduction of a hazardous tool (Tools most likely to be used in an escape or escape attempt or to serve as weapons capable of doing serious bodily harm to others; or those hazardous to institutional security or personal safety; e.g., hack-saw blade)
See 28 C.F.R. § 541.13, Table 3 (July 2010).*fn3 Greene claims that he did not receive the FCI Fort Dix memoranda notifying inmates that cellular phones are considered to be hazardous tools. There is no dispute, however, that he was on notice that Code 108 prohibited the possession of any tool likely to be used in an escape or escape attempt. A cell phone falls within that broad definition.
On July 18, 2010, Incident Report Number 2042304 was issued charging Greene with Possession of a Hazardous Tool and Assaulting Any Person, in violation of Codes 108 and 224, respectively. (ECF No. 13-2 at 3-7). Therein, Security Officer C. Cole reported:
On 7/18/2010, while conducting random shakedowns [cell searches] of the 2nd floor of building 5752, I smelled what appeared to be cigarette smoke coming out of the bathroom on the 2nd floor (by room 234). I walked out of the stall. I looked over top of the stall and observed an inmate texting on a cellular phone. The phone was red in color. I stepped away from the stall and radioed for a compound officer to come to the second floor in [building] 5752 immediately. The inmate stood up in the stall at which time he was given a direct order to remain in the stall. At this time, the inmate opened the stall door at which time, a second direct order was issued. At this time the inmate started in my direction as I was standing in the doorway. At this time the inmate was warned that if he did not stop and made contact with me I would utilize my body alarm. The inmate refused to obey any direct orders. At this time the inmate struck me in the chest in an attempt to move me out of the way. At this time a physical altercation began in which the inmate struck me in my throat in an attempt to get away. The inmate and I continued to struggle in the hallway. After approximately 3 minutes of trying to hold the inmate and wait for responding staff the inmate broke free and took off down the steps. At this time the inmate raced across the first floor. The inmate stopped by the trash can in the leisure room (pool room) briefly before running upstairs and disappearing. The unit was immediately locked down. In the trash can by the leisure room a red in color, Virgin Mobil, cell phone and battery were recovered. A lock down census was performed, at which time, it was discovered the inmate in question was GREEN[E], Germaine 32662-112. (ECF No. 13-2 at 4).
Lieutenant J. Tucker delivered the Incident Report to Greene on July 19, 2010. He advised Greene of his right to remain silent during the disciplinary process. After the Incident Report was read to him, Greene stated that he understood the charges against him. (ECF No. 13-2 at 6). Greene denied the charges and stated that he was not involved in the incident in question. He said that he was in the laundry room washing his clothes when it occurred. (Id.)
Lt. Tucker investigated the matter further. On July 26, 2010, he obtained a Memorandum from Lieutenant E. Blount, in which Blount wrote:
On July 18, 2010, a body alarm was announced by the East Control in Unit 5752. Upon arrival to the unit, Officer Cole stated an inmate ran and hit him when he caught him on a phone. I asked Officer Cole if he could identify the inmate and he said yes and that the inmate lived in his unit. Upon recalling all inmates to the unit, a search of all inmates was completed. Officer Cole stated he was not quite sure but thought inmate Greene was the suspect due to his size. I told Officer Cole he had to be 100% sure if he was going to write an incident report for assault. Inmate Greene did not have any apparent injuries and was escorted to the Lieutenants' Office. I returned to my duties as the Administrative Lieutenant. (ECF No. 13-2 at 8). In addition, Lt. Lampley explained in a Memorandum dated August 3, 2010, that:
On July 18, 2010, inmate Greene was identified as the person that assaulted [O]fficer Kole [sic] in housing unit 5752. Officer Kole went on to say that he was 99% sure that he has the right inmate when question[ed]. However [O]fficer Kole did pick out three other[ ] inmates that fit the description of the inmate that did this minor assault. With fu[r]ther questioning of [O]fficer Kole he stated he can not be hundred percent sure that inmate Greene 32662-112 was the individual. (ECF No. 13-2 at 10). Lt. Tucker also obtained a Memorandum from Officer Cole, who described the incident again and wrote in conclusion: "A lock down census was performed, at which time, it was discovered the inmate in question was GREEN[E], Germaine 32662-112." (ECF No. 13-2 at 9).
At the conclusion of his investigation, Lt. Tucker referred the Incident Report to the Unit Discipline Committee ("UDC") for an initial hearing. (ECF No. 13-2 at 6). On July 19, 2010, the UDC convened for an initial hearing. Greene stated that he was in the laundry room when the incident occurred and that he did not commit the charged misconducts. At the conclusion of the hearing, the UDC referred the Incident Report to the DHO for final disposition. The UDC recommended that if Greene was found to have violated the prohibited acts charged in the Incident Report, that he be sanctioned to loss of good conduct time ("GCT"), non-vested ("NV") GCT, and recommend disciplinary transfer. (ECF No. 13-2 at 5).
That same date, Greene was advised of his rights at the DHO Hearing. (ECF No. 13-2 at 12). He requested that Lt. Lampley and Lt. Blount appear at the hearing because they could testify that Lt. Cole had told them that he was not 100 percent sure of the identity of the inmate who had assaulted him. He also requested that Counselor Byram serve as his staff representative at the hearing. (ECF No. 13-2 at 14).
Greene's hearing took place on or around August 11, 2010, before DHO A. Boyce.*fn4 The DHO advised Greene that Counselor Byram either declined or could not appear. Greene was given the option of postponing the hearing to obtain another staff representative, but he declined and waived his right to one. (ECF No. 13-2 at 18).
In his defense, Greene told the DHO:
The whole time I was at the laundry room. When they did the census count in the room they pulled everyone out of the building. We all lined up. They told us pull our shirts out. I told the Lieutenant that I did not fight with anyone. I get to the Lieutenant's Office. Two weeks go by and the Captain said they think it is you. I have been having problems with the unit team. I did go into the bathroom to smoke but, I didn't use that bathroom. He grabbed a bunch of guys that look like me. (Id.) Neither Lt. Lampley nor Lt. Blount appeared, and the DHO hearing report incorrectly stated that Greene did not request any witnesses. (Id.)
In addition to the Incident Report and Greene's statement, the DHO considered the following:
(1) Lt. Blount's July 26, 2010, Memorandum, Lt. Lampley's August 3, 2010, Memorandum, and Officer Cole's August 1, 2010, Memorandum, each of which have been discussed above;
(2) Memorandum from Captain J. Fitzgerald, dated July 18, 2010 (ECF No. 13-2 at 22), in which he explained that Officer Cole had stated to him that he was "pretty sure" that Greene was the inmate who had assaulted him;
(3) Memorandum from Lt. Lampley dated July 18, 2010 (ECF No. 13-2 at 23), in which he described the bed count and upper body checks that occurred after the incident, during which time Officer Cole ...