Chavis v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Johnny Lee Chavis
v. Civil No. 19-cv-488-LM
Opinion No. 2020 DNH 038
Robert Hazlewood, Warden, Federal
Correctional Institution, Berlin
O R D E R
Johnny Lee Chavis, an inmate at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”), has filed a
petition for a writ of habeas corpus (doc. no. 1) under 28
U.S.C. § 2241, seeking to have a disciplinary record for
possessing a “hazardous tool” (a cellphone) expunged, and to
restore the good conduct time he lost as a sanction for that
violation. Before the court is the respondent FCI Berlin
Warden’s motion for summary judgment (doc. no. 8). Mr. Chavis
has filed an objection (doc. no. 10) to that motion, along with
an exhibit to that objection, see Decl. of Johnny Lee Chavis,
Feb. 20, 2020 (doc. no. 16) (“Chavis Decl.”).
Summary Judgment Standard
“Summary judgment is appropriate when the record shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Walker v.
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President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir.
2016) (citations and internal quotation marks omitted). In
general, the evidence is “viewed in the light most favorable to
the nonmoving party . . . and all reasonable inferences must be
taken in that party’s favor.” Harris v. Scarcelli (In re Oak
Knoll Assocs.), 835 F.3d 24, 29 (1st Cir. 2016). As petitioner
is proceeding pro se, his pleadings are construed liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
To obtain summary judgment, “the moving party must
affirmatively demonstrate that there is no evidence in the record
to support a judgment for the nonmoving party.” Celotex Corp. v.
Catrett, 477 U.S. 317, 332 (1986). Once the moving party makes
the required showing, “‘the burden shifts to the nonmoving party,
who must, with respect to each issue on which [it] would bear the
burden of proof at trial, demonstrate that a trier of fact could
reasonably resolve that issue in [its] favor.’” Flovac, Inc. v.
Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016) (citations
omitted).
“This demonstration must be accomplished by reference to
materials of evidentiary quality,” and that evidence must be
“‘significantly probative,’” and “more than ‘merely colorable.’”
Id. (citations omitted). The nonmoving party’s failure to make
the requisite showing “entitles the moving party to summary
judgment.” Id.
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Undisputed Facts
On August 9, 2018 at approximately 6:10 p.m., a corrections
officer at FCI Fort Dix in New Jersey conducted a search of the
cell Mr. Chavis shared with eleven other inmates, while Mr.
Chavis was not there. See Pet. (Doc. No. 1, at 5, 7); Chavis
Decl. (Doc. No. 16, at 2). Behind the locker assigned to Mr.
Chavis, the officer found a cellphone and charger plugged into an
outlet on the wall. Pet. (Doc. No. 1, at 5, 7). The phone was
magnetized to the back of Mr. Chavis’s locker and was concealed
by hanging shirts.1 Id.
Mr. Chavis learned about the cellphone’s discovery from his
cellmate Dereck Berryan when Mr. Chavis returned to his cell.
Chavis Decl. (Doc. No. 16, at 2). Mr. Berryan said, in the
presence of another cellmate, Darnell Dubose, that Mr. Berryan
would take ownership of the phone. Id. Mr. Chavis told the
investigating officer that the phone was Mr. Berryan’s. Id. Mr.
Berryan, whose end-of-sentence release date was scheduled for
August 16, 2018 -- one week after the cellphone’s discovery --
1The respondent’s motion for summary judgment asserts, as
part of an argument regarding the sufficiency of the evidence,
that the clothes covering the cellphone were Mr. Chavis’s.
Resp’t’s Mot. for Summ. J. (Doc. No. 8, at 3). This court does
not deem that assertion to be undisputed for purposes of ruling
on the motion for summary judgment, as neither respondent’s
statement of undisputed facts, nor the disciplinary hearing
record, contains any assertion or finding regarding who owned
the shirts that had been hung over the cellphone.
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hand-wrote a statement which states that he left the phone to
charge behind the locker when Mr. Chavis was out. See Ex. to
Bureau of Prisons (“BOP”) Incident Report (Doc. No. 8-1, at 7).
Surmising, in light of Mr. Chavis’s risk of being transferred to
another facility and Mr. Berryan’s imminent release, that Mr.
Chavis and Mr. Berryan had colluded to assign responsibility for
the phone and the incident report to Mr. Berryan, the
investigating officer charged Mr. Chavis with possessing a
“hazardous tool” (the cellphone), in violation of the prison’s
rules. See BOP Incident Report (Doc. No. 8-1, at 6). Mr. Chavis
has filed a sworn statement indicating he asked for an
examination of the cellphone’s contents to prove that the phone
could not be associated with him, see Chavis Decl. (Doc. No. 16,
at 3), but there is no record suggesting that such an examination
occurred.
On August 12, 2018, three days after the cellphone was
found, another corrections officer, inventorying Mr. Chavis’s
clothes, found a pair of shorts that had been altered to contain
a sewn-in pouch in the crotch. Email, Aug. 12, 2018 (Doc. No. 8-
1, at 20). The officer referred to that alteration as a “phone
pouch” in an email that was made part of the record in Mr.
Chavis’s disciplinary proceedings. Doc. No. 8-1, at 20. Mr.
Chavis has stated, without any evidentiary support, that the
pouch was 2” x 2”, a size he considered to be too small to hide a
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phone, and that he used it for stamps. Pet’r’s Obj. to Summ. J.
(Doc. No. 10, at 3).
The cellphone possession charge was referred for further
proceedings before a disciplinary hearing officer (“DHO”). See
BOP Incident Report (Doc. No. 8-1, at 5). Mr. Chavis received
prior notice of his rights to present evidence, call witnesses,
and have a staff representative assist him at that hearing. Id.
Mr. Chavis declined staff representation.
At the disciplinary hearing on August 15, 2018, Mr. Chavis
testified that the cellphone was Mr. Berryan’s, and he presented
the hand-written statement of Mr. Berryan as evidence. See DHO
Report, Aug. 15, 2018 (Doc. No. 8-1, at 14-15). Mr. Chavis also
called his cellmate, Mr. Dubose, as a witness; Mr. Dubose
testified that he had heard Mr. Berryan say it was Mr. Berryan’s
phone. Id.
The DHO found that Mr. Chavis violated prison rules by
possessing the cellphone. The DHO based this conclusion on:
where the cellphone was found, behind Mr. Chavis’s locker and
covered by shirts; each inmate’s responsibility to ensure that
his or her assigned area is free of unauthorized items, leading
the DHO to conclude that Mr. Chavis was aware of the cellphone;
the contemporaneous discovery that Mr. Chavis’s belongings
included shorts with a sewn-in pouch that could conceal
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contraband; and Mr. Chavis’s disciplinary history of having
possessed a cellphone in violation of prison rules in the year
before the incident in question. Id. at 16. The DHO refused to
credit as true the inmates’ testimony about Mr. Berryan owning
the phone, and the DHO did not find Mr. Berryan’s handwritten
confession to be persuasive on that issue, finding that, facing
imminent release, Mr. Berryan had “nothing to lose” by taking
responsibility for the incident report, while Mr. Chavis, at risk
of a transfer to a higher security prison, had “everything to
lose” if he were found guilty of the rules violation. Id. at 15.
The DHO imposed a sanction upon Mr. Chavis of forty-one days loss
of good conduct time, upon finding that the cellphone was a
safety risk which could be used to circumvent security protocols.
Id. at 16.
Mr. Chavis’s declaration states that he asked to have the
cellphone’s contents analyzed, and that the DHO told him that the
phone would be “sent out,” Chavis Decl. (Doc. No. 16, at 3). The
DHO Report does not record that those statements were made. It
is undisputed that a record of the phone’s contents was not
produced, obtained, or reviewed in connection with the pertinent
disciplinary proceedings. See Pet’r’s Surreply (Doc. No. 14, at
2).
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Discussion
I. Due Process and Disciplinary Proceedings
The minimum due process requirements for prison
disciplinary hearings affecting good time credits are: written
notice of the charge, the ability to call witnesses and present
documentary evidence (when doing so is consistent with
institutional safety and correctional concerns), a hearing
before an impartial decisionmaker, and a written statement as to
the evidence relied on and the reasons for the DHO’s decision.
See Surprenant v. Rivas, 424 F.3d 5, 16 (1st Cir. 2005); see
also Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974). In
addition, due process requires that the decision be supported by
“some evidence”; the relevant question “is whether there is any
evidence in the record that could support the [DHO’s]
conclusion.” Superintendent, Mass. Corr. Inst. v. Hill, 472
U.S. 445, 455-56 (1985). “[J]udicial review in a habeas case
must not amount to a reevaluation of the prison’s disciplinary
determination, but is limited ‘to ensur[ing] that federal
constitutional guarantees of due process are observed in the
proceedings.’” Cipriano v. Fed. Bureau of Prisons, No. 17-
377WES, 2017 U.S. Dist. LEXIS 215112, at *24, 2018 WL 400768, at
*8 (D.R.I. Dec. 6, 2017) (citation omitted), R&R approved, 2018
U.S. Dist. LEXIS 6013, 2018 WL 400768, at *1 (D.R.I. Jan. 12,
2018).
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II. Claim of Violation of BOP Policy and Equal Protection Rights
Mr. Chavis contends that the DHO and the investigating
officer violated his federal rights and BOP policy, by singling
him out for disciplinary proceedings with respect to contraband
found in an area he asserts all twelve inmates in his cell could
access. The current version of the cited BOP policy states that
inmates are responsible for keeping their assigned areas clear of
contraband. See BOP Program Statement 5270.09, Inmate Discipline
Program, App’x C, Inmate Responsibilities, ¶ 4 (available at
https://www.bop.gov/resources/policy_and_forms.jsp (last visited
Mar. 11, 2020)). Mr. Chavis’s citation to BOP policy appears
intended to challenge the failure of prison officials to make all
of the inmates who shared his cell responsible for possessing the
cellphone found outside his locker. Assuming, without deciding,
that Mr. Chavis raised the issue of multiple inmates having equal
access to the phone’s location as a defense in the disciplinary
hearing, that fact alone does not give rise to a viable due
process challenge to Mr. Chavis’s loss of good conduct time.
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 time credits.
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Denny v. Schultz, 708 F.3d 140, 145 (3d Cir. 2013); see also
Flowers v. Anderson, 661 F.3d 977, 980-81 (8th Cir. 2011)
(relying on collective responsibility theory in concluding 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) (applying probability-based approach to find “some
evidence” sufficient to uphold loss of good time where weapons
were found within a cell “under the control of [petitioner] and
his three cellmates,” giving rise to a “25% chance of guilt,”
while questioning in dicta whether the 3.1% individual
probability of guilt as to contraband found in a vent connected
to a network of cells, to which thirty-two inmates had access,
would amount to sufficient evidence under Hill, 472 U.S. at 457).
The DHO in Mr. Chavis’s case, like the hearing officers in
other cases where contraband has been found within a cell affixed
to the outside of a locker or drawer holding that inmate’s
belongings, specifically found that it was reasonable that Mr.
Chavis was aware of and in fact possessed that phone, in
violation of prison rules, given that there were shirts hanging
over the cellphone, it was attached to the back of Mr. Chavis’s
assigned locker, and prison policy required all inmates to keep
their assigned area free of contraband. See DHO Report (Doc. No.
8-1, at 16); see also Donahue v. Grondolsky, 398 F. App’x 767,
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772 (3d Cir. 2010) (“the fact remains that [the SIM card] was
found taped to the back of [petitioner’s] bottom clothes drawer,”
and the petitioner did not dispute “the reasonableness of the
requirement that inmates keep their assigned area free of
contraband”); Ned v. Tatum, No. 15-cv-178-LM, 2017 WL 3822736, at
*5, 2017 U.S. Dist. LEXIS 139885, at *13 (D.N.H. May 16, 2017)
(“once the weapon was affixed to Ned’s locker, he became
responsible for it”), R&R approved, 2017 WL 3772656, 2017 U.S.
Dist. LEXIS 139426 (D.N.H. Aug. 29, 2017). Those findings in Mr.
Chavis’s case amount to “some evidence” sufficient to satisfy the
due process requirements set forth in Hill, 472 U.S. at 455-56,
particularly when coupled with other evidence cited in the DHO
Report, including that Mr. Chavis’s shorts with a sewn-in pocket
could carry a phone or other contraband, and his relatively
recent prior disciplinary history of cellphone possession.
Mr. Chavis labels his claim of being singled out for
disciplinary proceedings as an equal protection claim, see Pet.
(Doc. No. 1, at 4), but he points to nothing suggesting that,
compared with any similarly-situated inmates, he suffered
discrimination because of his membership in any group or class of
individuals, or because he had exercised his federal rights. See
generally Mulero-Carrillo v. Román-Hernández, 790 F.3d 99, 106
(1st Cir. 2015) (elements of equal protection claim). And he
offers nothing to contradict the DHO Report’s finding that there
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was “no evidence of any animosity toward you,” DHO Report (Doc.
No. 8-1, at 15), or to suggest that malice or bad faith motivated
the disciplinary proceedings. Absent such evidence, the
respondent Warden is entitled to judgment as a matter of law on
that claim, as well.
III. Procedural Due Process Claim Regarding Cellphone Contents
Mr. Chavis contends that his procedural due process rights
were violated when he requested, but did not receive, evidence
regarding the cellphone’s contents. Mr. Chavis argues that the
cellphone’s data would have shown that none of his (known)
contacts, numbers, emails, or pictures were in the phone.2 Mr.
Chavis has submitted a document showing that the BOP has
undertaken such investigations in other cases involving
2Although Mr. Chavis argues that evidence of the phone’s
contents could have proven the phone was not his, such evidence
would not preclude the finding that he violated prison rules by
“possessing” the phone. See Bachelder v. Patton, No. 06-CV-148-
HRW, 2007 WL 108415, at *9, 2007 U.S. Dist. LEXIS 3145, at *24-
*25 (E.D. Ky. Jan. 12, 2007) (inmate’s “possess[ion]” of
cellphone could be found even if his “list of approved telephone
numbers revealed no match to any number dialed to or from the
contraband cell phone found in his area”). See also Donahue v.
Grondolsky, 398 F. App’x 767, 772 (3d Cir. 2010) (contents of
SIM card was not material, exculpatory evidence in disciplinary
hearing regarding charge of unauthorized possession of SIM card,
as “verifying the cellular phone number assigned to it and/or
revealing the list of calls made and received would not have
exonerated [petitioner] of possession of contraband”).
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cellphones. See Ex. to Pet’r’s Obj., BOP Incident Report, May
24, 2019 (Doc. No. 10, at 6).
In Ned, a case like Mr. Chavis’s, an inmate charged with
possession of a weapon that had been found attached to the bottom
of his locker claimed in his disciplinary hearing that he had
been set up by an unknown inmate, and he asserted in his § 2241
petition that he asked the DHO to have the weapon and locker
checked for fingerprints to identify who planted it. The court
found no procedural due process violation in the prison’s failure
to undertake further investigations of the ownership of the
weapon that was found under the inmate’s locker in Ned. See Ned,
2017 WL 3822736, at *3, 2017 U.S. Dist. LEXIS 139885, at *9.
Citing Tenth Circuit cases,3 the court in Ned, 2017 WL 3822736,
at *4, 2017 U.S. Dist. LEXIS 139885, at *9, concluded that the
inmate’s due process claim was unavailing under Wolff and Hill,
472 U.S. at 454.
3Ned quotes Whitmore v. Jones, 490 F. App’x 122, 125 (10th
Cir. 2012), for the proposition that “‘the opportunity to
present documentary and other evidence has never been extended
to require prison officials to gather [review] or preserve
evidence that a prisoner may later find helpful.’” Ned, 2017 WL
3822736, at *4, 2017 U.S. Dist. LEXIS 139885, at *9. Ned also
quotes Abdulhaseeb v. Ward, 173 F. App’x 658, 661 (10th Cir.
2006), which “reject[ed] petitioner’s claim that ‘prison
officials violated his due process rights by failing to . . .
conduct an independent investigation to discover exculpatory and
mitigating evidence on his behalf.’” Ned, 2017 WL 3822736, at
*4, 2017 U.S. Dist. LEXIS 139885, at *9.
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Indeed, in a case in which a prisoner asserted, in a §
2241 petition, “that prison officials erred by failing
to conduct a laboratory test to determine whether the
doctored soda can found in his room was actually used
to smoke marijuana,” Rhatigan v. Ward, 187 F. App’x
889, 890-91 (10th Cir. 2006), the court of appeals
disagreed, holding that “[u]nder Hill, this is not a
due process violation,” id. at 891. So too, here.
Ned, 2017 WL 3822736, at *4, 2017 U.S. Dist. LEXIS 139885, at *9.
Similarly, in Bridgeman v. Ault, No. 98-3681SI, 187 F.3d
640, 1999 U.S. App. LEXIS 13168, 1999 WL 425834 (8th Cir. 1999)
(unpublished table decision), the court considered whether a
petitioner’s procedural due process rights had been violated when
prison officials refused his requests during the disciplinary
proceedings to conduct a polygraph, fingerprint analysis, and
drug test to show that a coffee cup holding marijuana found in
the common area of his cell did not belong to the petitioner. As
in Ned, the court in Bridgeman concluded that the right to
present documentary evidence did not encompass a right to compel
prison officials to conduct those supplemental investigations and
analyses, to generate new evidence at the inmate’s behest. See
Bridgeman, 1999 U.S. App. LEXIS 13168, at *3-*4, 1999 WL 425834,
at *1-*2.
In support of his argument that the phone’s contents should
have been examined, produced, and reviewed in the disciplinary
proceedings, Mr. Chavis cites Lennear v. Wilson, 937 F.3d 257
(4th Cir. 2019), in which the court held that the procedural due
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process right to present documentary evidence under Wolff, 418
U.S. at 566, is applicable to an inmate’s request that prison
officials produce and review a surveillance video in connection
with his or her disciplinary proceedings. See Lennear, 937 F.3d
at 262 (“inmates at risk of being deprived of a liberty interest,
like good time credits, have a qualified right to obtain and
present video surveillance evidence” (citing Wolff)).4 Lennear
is readily distinguishable, however, as that case concerned a
record (a video) which would have been routinely generated and
maintained by the prison for a period of time in the regular
course of its business. To produce and review the video evidence
in the disciplinary hearing, prison officials did not need to
undertake any additional forensic analysis of contraband or
otherwise generate previously unavailable evidence; officials in
that case only had to identify and turn over the pertinent part
of an available existing record that had been in the prison’s
possession. Those facts make Mr. Chavis’s case distinguishable
from Lennear, and comparable to Ned and other cases where the
right to present documentary evidence is not equated with a right
4The Tenth Circuit, in Howard v. U.S. Bureau of Prisons, 487
F.3d 808 (10th Cir. 2007), has also held that the BOP’s “refusal
to produce and review” a potentially exculpatory surveillance
video, upon an inmate’s request during his disciplinary
proceedings, violates the inmate’s “due process right to present
documentary evidence in his own defense.” Id. at 815.
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to compel investigations to generate new evidence, thus
warranting a result here that is the same as that in Ned: namely,
an order granting summary judgment in respondent’s favor on Mr.
Chavis’s procedural due process claim regarding the cellphone
contents.
IV. Remaining Due Process Claims
Mr. Chavis claims that his due process rights were violated
when the DHO did not give due weight to evidence that the
cellphone found in his cell belonged to Mr. Berryan. The
requirement under Hill that the disciplinary conviction be
supported by “some evidence,” however, does not require the
examining court to independently assess the credibility of
witnesses or reweigh the evidence. Hill, 472 U.S. at 455.
“Instead the relevant question is whether there is any evidence
in the record that could support the [DHO’s] conclusion.” Id.
In Mr. Chavis’s case, the DHO had sound reasons for
discrediting the evidence assigning responsibility for the phone
to Mr. Berryan, and for suspecting that the inmates had colluded
–- the relatively low risk of harm to Mr. Berryman that could
result from the incident report as compared to Mr. Chavis, due to
Mr. Berryan’s imminent release date and Mr. Chavis’s risk of
being transferred to a higher security facility. While Mr.
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Chavis argues here that Mr. Berryan put himself at great risk of
loss when he admitted to owning the phone, because he could have
been charged criminally for owning a cellphone in prison, there
is no evidence before this court suggesting that Mr. Chavis
raised that issue before the DHO during the evidentiary hearing.
This court is not required to second-guess the DHO’s credibility
determination on that basis.
Furthermore, even if the DHO had taken as true the evidence
indicating Mr. Berryan owned the phone, there would still be some
evidence in the record before the DHO to support the finding that
Mr. Chavis “possessed” the cellphone. See Ned, 2017 WL 3822736,
at *5, 2017 U.S. Dist. LEXIS 139885, at *13 (because of prison
“policy that makes inmates responsible for keeping their assigned
areas free” of contraband, “once the weapon was affixed to Ned’s
locker, he became responsible for it”). Accordingly, the
respondent Warden’s motion for summary judgment on the due
process/credibility claim is properly granted.
In all other respects, Mr. Chavis has failed to show that
there is a genuine factual dispute as to whether he suffered any
due process violation in the disciplinary proceedings. He
received a written statement of the charges and timely prior
notice of his hearing. He was able to testify, present a written
statement of Mr. Berryan, and call a witness to corroborate that
statement. After the hearing, the DHO issued a written decision
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justifying the loss of good conduct time, in which the DHO
credited the incident report as true and made a reasoned decision
discrediting the evidence suggesting Mr. Berryan owned the phone.
Cf. Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008)
(“report from a correctional officer, even if disputed by the
inmate and supported by no other evidence, legally suffices as
‘some evidence’”).
Conclusion
Judgment is properly entered as a matter of law on each
claim in Mr. Chavis’s § 2241 petition. Accordingly, the court
GRANTS the Warden’s motion for summary judgment (doc. no. 8).
The clerk’s office is directed to enter judgment and close the
case.
SO ORDERED.
______________________________
Landya B. McCafferty
United States District Judge
March 18, 2020
cc: Johnny Lee Chavis, pro se
Seth Aframe, Esq.
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