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Bonner v. Perdue

United States District Court, M.D. Pennsylvania

December 27, 2017

TERRANCE BONNER, Petitioner,
v.
WARDEN R.A. PERDUE, Respondent.

          MEMORANDUM

          Hon. John E. Jones III Judge

         Presently before the Court is a petition for writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2241, filed by Petitioner Terrance Bonner (“Bonner”), a federal inmate housed at the Federal Correctional Institution at Schuylkill, Minersville, Pennsylvania. He alleges that his due process rights were violated in the context of a disciplinary proceeding. The petition is ripe for disposition and, for the reasons that follow, will be denied.

         I. BACKGROUND

         The Federal Bureau of Prisons (“BOP”) disciplinary process is fully outlined in Code of Federal Regulations, Title 28, Sections 541 through 541.8 (2011). These 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. § 541.5(b).

         Following the investigation, the matter is referred to the Unit Disciplinary Committee (“UDC”) for an initial 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.

         Regulations require the Warden to give the inmate advance written notice of the charges no less than 24 hours before the DHO hearing and offer the inmate a full time staff member to represent him at the DHO hearing. Id. at § 541.8 (c) and (d).

         At the DHO hearing, the inmate is “entitled to make a statement and present documentary evidence” and has the right to submit names of requested witnesses and have them called to testify and to present documents. Id. at § 541.8(f). The DHO shall “call witnesses who have information directly relevant to the charge[s] and who are reasonably available.” Id. § 541.8(f)(2). The DHO need not call repetitive witnesses or adverse witnesses. Id. § 541.8(f)(3). The inmate has the right to be present throughout the DHO hearing except during “DHO deliberations or when [his] presence would jeopardize institution security, at the DHO's discretion.” Id. § 541.8(e). The DHO must “consider all evidence presented during the hearing.” Id. § 541.8(f). “The DHO's decision will be based on at least some facts and, if there is conflicting evidence, on the greater weight of the evidence.” Id. The DHO has the authority to dismiss any charge, find a prohibited act was committed, and impose available sanctions. Id. at § 541.8. The DHO must prepare a record of the proceedings sufficient to document the advisement of inmate rights, DHO's findings, “DHO's decision”, specific “evidence relied on by the DHO” and must identify the reasons for the sanctions imposed. Id. at § 541.8(f)(2). A copy must be delivered to the inmate. Id.

         On May 20, 2015, upon conclusion of an investigation conducted by Lieutenant J. Vuksta, Bonner received Incident Report 2676108, charging him with violation of Prohibited Act Code 111, “Introduction of Narcotics” which occurred while Bonner was housed at the Federal Correctional Institution at Elkton (“FCI-Elkton”), Lisbon, Ohio. (Doc. 7-1, pp. 14-15). The Incident Report, authored by Lieutenant Butts, contains the following description of the incident:

(Dated: 1-27-15 Time: 10:00 a.m. Staff became aware of incident)[.] A SIS investigation concluded that on October 5, 2014, inmate Terrence Bonner, Reg. No. 07168-068, introduced a green leafy substance that tested positive for Amphetamines (suspected to be K2). On October 5, 2014, at approximately 11:38 a.m. inmate Bonner was observed putting an object in his mouth in the FCI Elkton visiting room. A review of Bonner's email message revealed a conversation regarding the amount of drugs and money in a coded email. Bonner was placed in an observation cell and provided two 3" tubular balloons containing a green leafy substance that tested positive for Amphetamines.

(Doc. 7-1, p. 14).

         Bonner received written notice of the charges against him on May 20, 2015. Staff advised him of his rights on the same date. (Id. at 15). When questioned about the incident, he responded he had “Nothing to say.” (Id.) The matter was referred for a UDC hearing during which he stated “I'm not guilty of this and never provided 2[, ] 3 inch tubular balloons.” (Id.) The UDC referred the matter to the DHO because “UDC Sanctions not avail. For Code 111.” (Id. at 14).

         On May 22, 2015, Bonner, signed the “Inmate Rights at Disciplinary Hearing” form and “Notice of Discipline Hearing Before the (DHO)” form. (Id. at 16, 17). At that time, he declined representation by a staff member and indicated that he did not wish to call witnesses. (Id. at 17).

         Initially, during the June 1, 2015 disciplinary hearing, the DHO advised Bonner of his rights; Bonner indicated that he understood them and chose to provide the following statement: “[t]hey alleged that I swallowed something and I was placed on dry cell after the visit.” (Id. at 18). The DHO acknowledged that staff provided Bonner with written notice of the charges, that he declined the offer of a staff representative, and chose not to call witnesses. (Id. at 18). Bonner did not raise any procedural issues or submit documentary evidence. (Id.)

         The DHO noted the delay in the commencement of the discipline process due to the incident being referred to the Federal Bureau of Investigations and the United States Attorney's Office for criminal prosecution. (Id.) He also noted that the agency declined ...


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