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Nobrega v. Ebbert

United States District Court, M.D. Pennsylvania

January 30, 2017

DAVID J. EBBERT, et al., Respondents


          William J. Nealon United States District Judge.

         Domingos 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.


         On 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).

         Also on 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.

         On 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.

         Additionally, 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.

         Nobrega's 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. Id.

         Petitioner 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."


         In 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 ...

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