Rivera v. Ryall et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Felix Dominguez Rivera
v. 	Case No. 20-cv-918-JL
Warden, Federal Correctional
Institution Berlin, et al.
REPORT AND RECOMMENDATION
The Warden of the Federal Correctional Institution in
Berlin, New Hampshire (“FCI Berlin”) has moved for summary
judgment (Doc. No. 11) on Felix Dominguez Rivera’s 28 U.S.C.
§ 2241 petition for a writ of habeas corpus (Doc. No. 1)
challenging a disciplinary decision punishing Rivera with loss
of good-time credit for possessing contraband. 	Rivera contends
that the Bureau of Prison’s (“BOP”) disciplinary decision
violated his due process rights because prison officials
presented no evidence that Rivera possessed, or was aware of,
the contraband discovered in the table of his shared cell. 	The
Warden disagrees, arguing that the disciplinary decision
satisfies due process as the presence of contraband in Rivera’s
shared cell, by itself, constituted “some evidence” that he was
in constructive possession of the prohibited items. 	As
discussed below, this evidence was sufficient to satisfy due
process. 	Accordingly, the district judge should grant the
Warden’s motion and enter judgment against Rivera’s petition.
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I. 	Undisputed Facts
Rivera – an inmate currently serving a 168-month sentence
for distribution and possession of drugs and being a felon in
possession of a firearm, see Hampton Decl. (Doc. No. 11-1, ¶ 4)
– challenges a disciplinary hearing officer (“DHO”) decision
finding Rivera guilty of possessing drugs (marijuana) and a
hazardous tool (cellular phones), in violation of BOP Prohibited
Codes 108 and 113, while Rivera was incarcerated at the Federal
Correctional Institution in Fort Dix, New Jersey (“FCI Fort
Dix”). 	On September 28, 2019, about two-and-one-half months
after Rivera arrived at FCI Fort Dix, a correctional officer
announced a search of Rivera’s cell, which he shared with eleven
other inmates. 	See Rivera’s Obj. to Mot. for Summ. J. (Doc. No.
12, at 1); Sept. 28, 2019 Incident Report (Doc. No. 11-3, at 1).
During the search, the officer found three cellular phones, one
phone battery, and thirty-two “dime-sized” bags of a green leafy
substance — later confirmed as marijuana — in one of the legs of
the shared cell’s table. 	See Rivera’s Obj. to Mot. for Summ. J.
(Doc. No. 12, at 1); Sept. 28, 2019 Incident Report (Doc. No.
11-3, at 1). 	In light of this discovery, the searching officer
charged Rivera (and the rest of Rivera’s cell mates) with the
above-referenced offenses, “as per [the prison handbook], it is
the responsibility of all inmates to keep their area clear and
free of contraband.” 	Sept. 28, 2019 Incident Report (Doc. No.
11-3, at 1).
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On October 10, 2019, a disciplinary officer conducted a
hearing on the charges against Rivera. 	At that hearing, Rivera
denied the charges, arguing that he was never in possession of
the contraband. 	DHO Report (Doc. No. 11-6, at 10). 	The DHO
assessed these denials against the counterweighing evidence,
including the searching officer’s incident report, photographs
of the discovered contraband items, and substance-test reports
confirming a chain of custody for, and the presence of marijuana
among, the contraband items. 	Id. 	at 9-10. 	The DHO ultimately
found, “based on the greater weight of facts/evidence,” that
Rivera (and his other cellmates) had been in “constructive
possession” of the drugs and cellular phones and therefore had
“committed the prohibited acts as charged.” 	Id. at 10
(explaining that “[i]n general, a person has constructive
possession if they knowingly have ownership, dominion, or
control over the contraband itself or over the premises in which
the contraband is located” (emphasis in original)).
Thereafter, Rivera filed administrative appeals
unsuccessfully challenging the DHO’s decision and resulting
sanctions, which included the loss of good-time credit and other
privileges. 	Hampton Decl. (Doc. No. 11-1, ¶¶ 13-14) 	The
Warden concedes that, in doing so, Rivera exhausted his
administrative remedies. 	Warden’s Mot. for Summ. J. (Doc. No.
11, at 3).
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II. 	Applicable Legal Standard
Summary judgment is appropriate when the moving party shows
that “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” 	Fed. R.
Civ. P. 56(a). 	“The party moving for summary judgment bears the
initial burden of showing that no genuine issue of material fact
exists.” 	Feliciano-Munoz v. Rebarber-Ocasio, 970 F.3d 53, 62
(1st Cir. 2020) (internal citation omitted). 	Then, “[the
nonmoving party] must respond to a properly supported motion
with sufficient evidence to allow a reasonable jury to find in
its favor with respect to each issue on which [it] has the
burden of proof.” 	Id. (quoting Prado Álvarez v. R.J. Reynolds
Tobacco Co., 405 F.3d 36, 39 (1st Cir. 2005)) (alteration in
original). 	In ruling on such motions, the district court must
“constru[e] the record in the light most favorable to the
nonmoving party and resolv[e] all reasonable inferences in that
party’s favor.” 	Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301
(1st Cir. 2014). 	“The plain language of Rule 56(c) mandates the
entry of summary judgment . . . against a party who fails to
make a showing sufficient to establish . . . an element
essential to that party’s case” or defense on which “that party
will bear the burden of proof at trial.” 	Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
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III. Discussion
Rivera contends that the DHO’s findings against him
violated his due process rights, as prison officials “failed to
present evidence” that he had “power or control” over the
contraband or otherwise knew the contraband was concealed in the
leg of his shared cell’s table. 	Rivera’s Obj. to Mot. for Summ.
J. (Doc. No. 12, at 1). 	In Rivera’s view, his testimony, in
which he denies knowing of the contraband’s presence inside his
shared cell’s table, is the only competent evidence as to
whether he knowingly exercised ownership, dominion, or control
over the contraband or over the premises in which it was
located. 	Id. 	This position underestimates what constitutes
competent and sufficient evidence for purposes of satisfying due
process.
To comport with the minimal requirements of due process, a
prison DHO’s decision resulting in the loss of an inmate’s good-
time credit must be supported by “some evidence in the record.”
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454
(1985). 	“Ascertaining whether this standard is satisfied does
not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of the
evidence.” 	Id. at 456; see also Chavis v. Hazlewood, No. 19-CV-
488-LM, 2020 WL 1290355, at *3, 2020 U.S. Dist. LEXIS 46290, at
*7 (D.N.H. Mar. 18, 2020) (“[J]udicial review in a habeas case
must not amount to a reevaluation of the prison’s disciplinary
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determination, but is limited ‘to ensur[ing] that federal
constitutional guarantees of due process are observed in the
proceedings.’” (internal citation omitted)). 	The ultimate
question for a reviewing court “is whether there is any evidence
in the record that could support the conclusion reached by the
disciplinary board.” 	Hill, 472 U.S. at 455. 	To satisfy this
inquiry, “[a]ll that is necessary is that ‘the record [be] not
so devoid of evidence that the findings of the disciplinary
board were without support or otherwise arbitrary.’” 	Ned v.
Tatum, No. 15-cv-178-LM, 2017 WL 3822736, at *6, 2017 U.S. Dist.
Lexis 139885 (D.N.H. May 16, 2017) (quoting Hill, 472 U.S. at
457), R&R adopted, 2017 WL 3772656, 2017 U.S. Dis. Lexis 139426
(D.N.H. Aug. 29, 2017). 	In the context of this case, all that
is necessary is that the record contain some evidence – even
evidence that could be considered “meager” — showing that Rivera
exercised constructive possession over the discovered contraband
by virtue of having ownership or control over the shared table
where the contraband was located. 	See id.
As noted by this Court in Chavis v. Hazlewood, federal
courts that have considered this question “have uniformly held
that the discovery of contraband in a shared cell constitutes
‘some evidence’ of possession sufficient to uphold a prison
disciplinary sanction against each inmate in the cell, including
depriving that inmate of his or her liberty interest in good
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time credits.” 	2020 WL 1290355, at *3, 2020 U.S. Dist. LEXIS
46290, at *8-9 (quoting Denny v. Schultz, 708 F.3d 140, 145 (3d
Cir. 2013)) (internal quotation marks omitted); see also Flowers
v. Anderson, 661 F.3d 977, 980–81 (8th Cir. 2011) (concluding,
under a collective responsibility theory, that two of eight
cellmates were culpable for contraband found in their shared
living area “that could be accessed by standing on a locker”);
Hamilton v. O’Leary, 976 F.2d 341, 345–46 (7th Cir. 1992)
(finding “some evidence” sufficient to uphold loss of good time
where weapons were found within a cell “under the control of
[the petitioner] and his three cellmates,” giving rise to a “25%
chance of guilt”). 	This is because “each prisoner in a shared
cell has an affirmative responsibility to keep the entire cell,
and all other space accessible from within the cell,” — all of
which are “equally accessible to each prisoner housed” therein —
“free of contraband.” 	Denny, 708 F.3d at 146; see also BOP
Program Statement 5270.09, App. C (advising inmates that it is
their responsibility to keep their area “free of contraband”).
Here, Rivera concedes there was evidence showing that: “the
contraband was concealed inside the leg of the table” in his 12-
man shared cell; “the 32 baggies of green leafy substance tested
positive for marijuana”; and “the 3 cell phones and the battery
[we]re real functioning devices.” 	Rivera’s Obj. to Mot. for
Summ. J. (Doc. No. 16, at 1). 	Additionally, he does not dispute
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that, under BOP Policy, he had an affirmative obligation to keep
his shared cell clear and free of contraband. 	See id. 	These
factors constitute “some evidence” supporting the DHO’s
findings, specifically that Rivera (and his cellmates)
constructively possessed the contraband discovered in the shared
cell, through his known “ownership, dominion, or control over
. . . the premises in which the contraband was located.” 	See
DHO Report (Doc. No. 11-6, at 10).
Though Rivera denies knowing of the contraband’s existence,
the DHO was not bound to believe Rivera’s testimony or to credit
it over circumstantial inferences of knowledge reasonably drawn
from the evidence presented. 	See, e.g., McCarthy v. Hemingway,
No. 2:20-CV-12846, 2021 WL 927375, at *3, 2021 U.S. Dist. LEXIS
45697, at *8 (E.D. Mich. Mar. 11, 2021) (finding support for DHO
revocation of good-time credits where a petitioner and his
cellmate both denied that the petitioner knew of the contraband,
as “the DHO was not bound to believe them” (internal citation
omitted); DHO Report (Doc. No. 11-6, at 10) (finding that Rivera
provided “inaccurate information in order to not accept ANY
responsibility”). 	Additionally, the DHO’s inference that Rivera
knew of the contraband’s existence, or had provided inaccurate
information as to his knowledge or awareness, was not arbitrary
or unreasonable, given the volume of contraband hidden, the
location where it was hidden (the leg of the shared cell’s
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common table), and Rivera’s affirmative responsibility to keep
his assigned cell free of contraband. 1 	See Santonio House v.
Daniels, 637 F. App’x 950, 951 (7th Cir. 2016) (echoing that
“the possibility that anyone sharing” a 7-person cell “had
overlooked several gallons of alcohol being accessed from a
common light fixture [was] remote”); DHO Report (Doc. No. 11-6,
at 10) (also finding that there was “no information” suggesting
that “the phones belonged to someone other than the occupants of
the cell”).
Given this evidence, the DHO’s conclusion that Rivera
committed the prohibited acts charged did not violate the due
process requirements set forth in Hill. 	Accordingly, the Warden
is entitled to judgment against Rivera as a matter of law.
IV. 	Conclusion
For the foregoing reasons, the district judge should grant
the Warden’s motion for summary judgment (Doc. No. 11), enter
judgment against Rivera on his § 2241 petition for habeas relief
(Doc. No. 1), and close this case. 	Any objections to this
1 In his objection, Rivera notes that the evidentiary record
before the DHO included no “pictures of the table and table
leg.” 	Rivera’s Obj. to Mot. for Summ. J. (Doc. No. 12, at 1).
He asserts that such photos would have been exculpatory. 	Id.
The DHO Report does not show that Rivera raised such an argument
during his disciplinary hearing. 	Additionally, Rivera does not
explain how photographs of the table or table leg would be
exculpatory or otherwise show he did not exercise ownership,
dominion, or control over the table in his shared cell. 	He has
thus failed to develop how the omission of such evidence
prejudiced him or otherwise violated his due process rights.
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Report and Recommendation must be filed within fourteen days of
receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The
fourteen-day period may be extended upon motion. 	Failure to
file objections within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 22, 2021
cc: 	Felix Dominguez Rivera, pro se
Seth R. Aframe, Esq.
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