United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge.
Nobrega, an inmate currently confined in the United States
Penitentiary, Yazoo City, Mississippi, filed this pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. Petitioner claims that his due process
rights were violated during the course of a prison
disciplinary hearing held on April 10, 2014, at Canaan United
States Penitentiary ("USP-Canaan"), Waymart,
Pennsylvania, when he was found guilty of the prohibited act
of Possession of any Narcotic, Marijuana, Drugs, Alcohol,
Intoxicants or Related Paraphernalia not Prescribed for the
Individual by Medical Staff, a violation of Disciplinary Code
Section 113. Specifically, he claims "that the purple
liquid recovered had not ever been tested by a
Toxicologist." (Doc. 1, petition). For relief,
Petitioner seeks the expungement of the incident report and
sanction, and restoration of his forfeited good conduct time.
Id. The petition is ripe for disposition and, for
the reasons that follow, will be denied.
March 19, 2014, Petitioner was served with Incident Report
No. 2561034 charging him with "Introduction or Making of
any Narcotic, Marijuana, Drugs, Alcohol, Intoxicants or
Related Paraphernalia not Prescribed for the Individual by
Medical Staff, a Code 111 violation. (Doc. 5-1, Ex. C,
Incident Report). The incident report, which was written by
M. McColligan, reads as follows:
On March 19, 2014, at 12:50 p.m., I was conducting a routine
random cell search of cell 221 in unit F-l which is occupied
by Inmate Nobrega (06915-036) and another inmate. While
searching the upper locker, belonging to inmate Nobrega
06915-036, 1 found a soda bottle containing a dark purple
liquid in it. When tested by the unit flashlight (passive
alcohol screening serial number 0215 102295), it registered
as containing alcohol. Inmate Nobrega admitted that it
belonged to him and claimed that it was for a religious
service. I confiscated the bottle and notified compound
officers. Compound Officer Everitt took the substance to the
lieutenant's office and tested it with Alcosensor 3
serial number 1222816. It had a positive reading of .105.
Id. On March 20, 2014, Petitioner appeared before
the Unit Discipline Committee ("UDC"). (See
Id., Committee Action). The UDC referred the charge
to the Discipline Hearing Officer ("DHO").
Id. During the UDC hearing, staff member, D. Palmer,
informed Nobrega of his rights at the DHO hearing and
provided him with a copy of the "Inmate Rights at
Discipline Hearing" form. (Id. at 56, Inmate
Rights at Discipline Hearing).
March 20, 2014, Nobrega was provided with a "Notice of
Discipline Hearing before the (DHO)" form. (Id.
at 59). Nobrega requested staff representatives, Senior
Officer Specialists Everitt and Alogna. Id. He also
requested three inmate witnesses, Lawrence Johnson, Shawn
Peterkin, and Jamalda Redish. Id.
April 10, 2014, Petitioner appeared for a hearing before DHO,
Marc A. Renda. (Doc. 5-1, Ex. D, DHO Report). During the DHO
hearing, Petitioner was again read his rights, and he
indicated that he understood them. Id. The DHO
confirmed that Nobrega received a copy of the incident
report. Id. The DHO denied Nobrega's request for
Senior Officer Specialists Alogna and Everitt to be his staff
representative because they were significantly involved in
the March 19, 2014 incident. Id. Nobrega elected to
proceed with his disciplinary hearing with Lieutenant Rosier
as a staff representative. Id. Staff representative,
W. Rosier, Lt., noted no discrepancies in the discipline
process and was disclosed all documentation in reference to
Petitioner's case. Id. Further, he met with
Nobrega in advance of the hearing to discuss the case.
Id. He stated for the record "Whether or not
intent was there, he possessed a substance which tested
positive for intoxicants." Id.
DHO Renda permitted Nobrega a continuation to present three
character witnesses. Id. Inmates Johnson and
Peterkin both asserted that Nobrega was Jewish and had the
bottle containing the intoxicants in his possession.
Id. They each asserted he initially obtained this
bottle through his religious practices. Id. While
both inmates believed Nobrega would not get involved with
intoxicants, each independently acknowledged Nobrega's
possession of the bottle containing the contents that tested
positive for alcohol on March 19, 2014. Id.
final character witness was not housed at USP-Canaan on the
date of his disciplinary hearing and, as such, he was not
called as a witness. Id. Moreover, as DHO Renda
noted, inmate Redish was only being called as character
witness, and therefore, his testimony wasn't necessary.
offered the following statement on his behalf:
"We're here because of procuring actual illegal
contraband. There was no intent to make it illegal. The
defendant was practicing his religion. He got the juice in
that bottle on that Saturday after religious practices. After
Saturday, the bottle was left in the cell until the next
Saturday, the 19th. The defendant harbored grape
juice because they are not giving religious services to the
Jewish nation on Saturday which is our Shabbat. They're
not letting us eat our meals in front of candles. We have to
have grape juice."
When further interrogatories were posed by the DHO the manner
in which religious services purportedly provided him grape
juice, he replied: "There was a grape juice box Lt.
Rosier was given to him by Officer Everitt. I don't
remember the date on the box." When questioned regarding
the liquid substance in the soda bottle as depicted in
photographic evidence, NOBREGA responded "I had a bottle
and had an empty box of grape juice. Yes, that was my bottle.
It was less than an ounce", and stated "I asked
them to do a proper toxicology test." NOBREGA also
testified "If you stick anything in a bottle it can
accidently turn bad, " acknowledged being provided grape
juice in a box not a soda bottle, and sated "We're
supposed to consume it [grape juice] Friday, Saturday and
Sunday. No, they don't give it to us to hold."
Lastly, NOBREGA admitted stating to the investigator
"Exempt from levee except as value, returned as a
contract for settlement. Contract due upon signature of
agent, value $1000.00". When questioned about the
significance of said statement he stated "They were
short-handing me" and when questioned about the
reference to "Contract due upon signature of agent value
$1000.00", he replied "It had to do with a contract
when you got a name, you have to use capital letters."
No procedural issues were cited. Documentary evidence was
provided for consideration to the DHO. Specifically, NOBREGA
adduced from "The Aleph Institute",
"Institution Handbook of Jewish Practice and
Procedure", pages 4-1, 4-2, 4-3 and 4-5; and a hand
written statement. In part he requested "Charictor
Witness", cited "Tools of Truth Finding", and
"Evidence Needed". He requested 20cc of
"Sodiumpenthenol", "Polygraph Tester",
and the "grape juice box that was given to Lt. W. Rosier
on 3-19-2014, that showed the juice was given to the
defendant bad or out of date (i.e. left in the
defendant's possession after a shakedown as a bad product
in February). This will show that this is a miscarriage of
justice and plain error also a hayness charge."
addition to the Incident Report and Investigation, the DHO
considered the following documentary evidence in making his
determination: (1) a photograph depicting plastic soda
bottle; (2) liquid substance and Alco-Sensor III reading of
.105; and (3) Memorandum dated March 19, 2014 from A.
Everitt, Senior Officer Specialist. I ...