United States District Court, M.D. Pennsylvania
John E. Jones III Judge
before the court is a petition for writ of habeas corpus
(Doc. 1) pursuant to 28 U.S.C. § 2241, filed by
Petitioner Orville Rodriguez (“Rodriguez”), a
federal inmate housed at the Federal Correctional Institution
at Allenwood (“FCI-Allenwood”), White Deer,
Pennsylvania. He alleges that his Fifth and Eighth Amendment
rights were violated during two separate disciplinary
proceedings disposing of Incident Reports 2688840 and
2693026. He is seeking expungement of the incident reports,
removal of sanctions, and restoration of Good Conduct Time.
(Doc. 1, p. 8).
petition is ripe for disposition and, for the reasons that
follow, will be denied.
Federal Bureau of Prisons (“BOP”) disciplinary
process is fully outlined in Code of Federal Regulations,
Title 28, Sections 541 through 541.8 (2011).
regulations dictate the manner in which disciplinary action
may be taken should a prisoner violate, or attempt to
violate, institutional rules. The first step requires filing
an incident report and conducting an investigation pursuant
to 28 C.F.R. § 541.5. Staff is required to conduct the
investigation promptly absent intervening circumstances
beyond the control of the investigator. 28 C.F.R. §
the investigation, the matter is then referred to the Unit
Disciplinary Committee (“UDC”) for a hearing
pursuant to 28 C.F.R. § 541.7. If the UDC finds that a
prisoner has committed a prohibited act, it may impose minor
sanctions. Id. If the alleged violation is serious
and warrants consideration for more than minor sanctions, or
involves a prohibited act listed in the greatest or high
category offenses, the UDC refers the matter to a
Disciplinary Hearing Officer (“DHO”) for a
hearing. Id. Greatest Severity category offenses
carry a possible sanction of, inter alia, loss of
good conduct time credits. 28 C.F.R. § 541.3.
Incident Report 2688849
March 3, 2015, while incarcerated at FCI-Allenwood, Rodriguez
received an incident report, 2688849, charging him with
“Use of the telephone for abuses other than criminal
activity, ” in violation of Prohibited Act Code 397.
(Doc. 8-1, p. 12). The incident is described as follows:
“Inmate Rodriguez, Orville register number 17394-055
made a telephone call to phone number 716-768-1232 from phone
station 5803 at 2:58 PM in unit 1B/AB. Inmate Rodriguez had
this individual use their cell phone and conduct a three way
phone call to several people, when the other parties answered
the cell phone inmate Rodriguez was put on speaker phone and
he had conversations with the individuals on the cell phone.
This telephone called [sic] was monitored at 4:50 PM
3/2/15.” (Id.) Shortly thereafter, the
incident was reinvestigated because it was incorrectly
processed as a Code 397. (Id. at 13). On March 6,
2015, Rodriguez received a second copy of the incident report
with the proper code violation, Code 297, “Use of
telephone for abuses other than criminal activity.”
the March 9, 2015, UDC review, Rodriguez commented, “I
did not know I couldn't do this. It was out of the
urgency to find out about my brother. I did not speak
directly with the third person, my brother.”
(Id.) The UDC referred the matter for further
hearing and recommended loss of good conduct time, loss of
phone privileges and imposition of a monetary fine.
(Id. at 12). Rodriguez acknowledged being advised of
his rights and declined the offer of staff representation and
the option to call witnesses at the DHO hearing.
(Id. at 15-16).
disciplinary hearing commenced on March 12, 2015.
(Id. at 17). The DHO advised Rodriguez of his
rights; Rodriquez declined staff representation, chose not to
call witnesses, presented no documentary evidence, and denied
the charges against him. (Id.) The DHO noted no
procedural irregularities, except the delay caused by the
improper code violation being listed in the initial incident
report. (Id.) Rodriquez stated, “I have a
brother who had a seizure and is in a medically induced
coma.” “The report is true.” (Id.)
Upon further questioning, “Inmate Rodriguez . . .
admitted the charge. He elaborated upon his plea by stating,
the report is true.” (Id. at 18).
“believed the information provided by the staff member
involved in this case, as they derived no known benefit by
providing false information.” (Id.) He
concluded, based upon the evidence cited in the incident
report and Rodriguez's admission, that Rodriguez
committed the prohibited act of Use of the telephone for
abuses other than criminal. In imposing sanctions including,
inter alia, disallowance of twenty-seven
days of good conduct time, the DHO stated:
Rodriguez's use of his telephone privileges detracted
from the intent of the Federal Bureau of Prison's
telephone policy. His making of a three-way phone call
threatened the security of the institution by bypassing the
inmate telephone procedures established at FCI-Allenwood.
Accordingly, the Disallowance of Good Conduct Time is
sanctioned to punish Rodriguez for his behavior while the
Loss of Privileges, (Phone and Visit) and Disciplinary
Segregation (Suspend 180 Days pending clear conduct) is
sanctioned in an effort to deter him from it in the future.
The DHO finds the charge for code 297 to warrant the