Izlar v. FCI Berlin, Warden

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Izlar, Jr.
v. 	Case No. 21-cv-393-SE
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Before the court is James Izlar, Jr.’s petition for a writ
of habeas corpus under 28 U.S.C. § 2241 (hereinafter “Pet.”)
(Doc. No. 1), challenging a Bureau of Prisons (“BOP”)
disciplinary proceeding. 	Mr. Izlar is incarcerated at the
Federal Correctional Institute in Berlin, New Hampshire. 	Pet.
at 1. 	The matter is here for preliminary review to determine
whether the petition is facially valid and may proceed. 	See
Rule 4 of the Rules Governing Section 2254 Cases (hereinafter
“§ 2254 Rules”); § 2254 Rule 1(b) (applying § 2254 Rules to
§ 2241 petitions); LR 4.3(d)(4)(A).
“Federal courts are authorized to dismiss summarily any
habeas petition that appears legally insufficient on its face.”
McFarland v. Scott, 512 U.S. 849, 856 (1994). 	Because Mr. Izlar
proceeds pro se, the court construes his pleadings liberally.
See Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 75–76 (1st
Cir. 2014) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam)).
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I. 	Background
Mr. Izlar challenges the decision of a BOP discipline
hearing officer (“DHO”), finding him guilty of violating BOP
Prohibited Acts Code (“Code”) 217, 28 C.F.R. § 541.3 tbl.1. 	See
Pet. at 3 ¶ 9. 	Code 217 forbids “[g]iving money to, or
receiving money from, any person for the purpose of introducing
contraband or any other illegal or prohibited purpose.” 	28
C.F.R. § 541.3 tbl.1. 	Mr. Izlar contends that the DHO should
have classified his behavior as a Code 328 violation, Pet. at 2
¶ 6, which prohibits “[g]iving money or anything of value to, or
accepting money or anything of value from, another inmate or any
other person without staff authorization,” § 541.3 tbl.1.
The disciplinary action at issue arose from a phone call on
March 11, 2020 at 2:53 PM between another prisoner, Joseph
White, and “a male listed as his sibling, Andrew White[,] on his
contact list.” 	Incident Report, Mar. 31, 2020 (Doc. No. 1 at 5
¶ 11). 	According to the March 31, 2020 Incident Report, Joseph
White asked Andrew White to send Mr. Izlar money in order to
protect Joseph in general population housing. 	See id. 	Video
footage of the phone area identifies Mr. Izlar in the background
while Mr. White is making his call and captures Mr. Izlar
providing Mr. White with his register number. 	Id.; see DHO
Report (Doc. No. 1 at 7 ¶ III(D)).
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According to the Incident Report, Mr. Izlar was “well aware
of money being placed into his account by another inmate’s
family,” based on a February 13, 2020 recorded telephone call
that captured Mr. White “tell[ing] his brother that [Mr.] Izlar
says the money still isn’t there.” 	Incident Report at 5 ¶ 11.
The Incident Report further states that prisoner account records
showed that, between November 17, 2018 and March 11, 2020,
Andrew White deposited a total of $1,444.98 into Mr. Izlar’s
prisoner account. 	See id.
BOP staff provided Mr. Izlar with a copy of the Incident
Report on March 31, 2020. 	Id. at ¶¶ 13–16. 	Based on the
conduct described therein, the BOP charged Mr. Izlar with
violating Code 217, and he appeared before the DHO at a
disciplinary hearing on that charge on April 15, 2020. 	DHO
Report at 6 ¶ I(B).
Prior to the hearing, the DHO advised Mr. Izlar of his
rights. 	Id. 	Mr. Izlar requested and received staff
representation, id. at ¶ II(B), and denied the charges, id. at
¶ III(A). 	He also requested that the DHO call Joseph White as a
witness. 	Id. at ¶ III(C)(3). 	The DHO did not call Mr. White,
however, for two reasons: first, Mr. White’s DHO hearing on his
disciplinary charges stemming from this incident took place at
the same time as Mr. Izlar’s, and second, COVID-19-related room
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occupancy limitations prevented Mr. White from sharing the
hearing room with Mr. Izlar. 	See id. at ¶ III(C)(4).
Mr. Izlar made a statement at his hearing about receiving
money from Andrew White, saying, “I deny that it is extortion,
but I admit to taking money to help [Mr. White] go to commissary
because he had no commissary. 	I was wrong. 	I did wrong.” 	Id.
at 6 ¶ III(B); 8 ¶ V. 	The DHO pointed out that “receiving money
from inmate White’s family for the purpose of buying commissary
items for inmate White while he was on restriction” amounted to
doing so for “a prohibited purpose” in violation of Code 217.
Id. at 8 ¶ V. 	The DHO also considered Mr. White’s “statement
made during his DHO hearing on April 15, 2020,” which stated, in
part, “I get my family to send money in to others so I can shop
because I lost my commissary.” 	Id.
After the hearing, the DHO found, “based on the greater
weight of evidence, that being the written account of the
incident, evidence provided, inmate White’s statement, and [Mr.
Izlar’s] statement during the DHO hearing,” that Mr. Izlar
“committed the prohibited act of [C]ode 217 . . . .” 	Id. 	The
DHO imposed the following penalty: disallowance of twenty-seven
days of good credit time, loss of commissary and email
privileges for three months, and monetary restitution of $200.
Id. at ¶ VI. 	Mr. Izlar received a copy of the DHO Report on
April 21, 2020. 	Id. at 9 ¶ IX. 	Subsequently, Mr. Izlar
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unsuccessfully challenged the DHO’s decision and resulting
sanctions through the BOP administrative appeal process. 	See
BP-10 Filing and Response (Doc. No. 1 at 11–13) (regional office
appeal and denial); Extension of Time for Response (Doc. No. 1
at 14) (acknowledging central office appeal).1
II. 	Discussion
A. 	Due Process for Disciplinary Proceedings
“[D]ue process requires procedural protections before a
prison inmate can be deprived of a protected liberty interest in
good time credits.” 	Superintendent v. Hill, 472 U.S. 445, 453
(1985) (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). 	For a
BOP disciplinary hearing, these due process procedural
protections include “written notice of the charges at least
twenty-four hours in advance of the hearing,” Surprenant v.
Rivas, 424 F.3d 5, 16 (1st Cir. 2005) (citing Wolff, 418 U.S. at
564), “the ability to call witnesses and present documentary
evidence,” id. (citing Wolff, 418 U.S. at 566), “an impartial
decisionmaker,” id. (citing Wolff, 418 U.S. at 570–71), and “a
1 Although Mr. Izlar filed some administrative appeal documents
with his petition, he did not file a response from his central
office appeal. 	Cf. Pet. at 11–14. 	The court construes Mr.
Izlar’s pleadings liberally, see Foley, 772 F.3d at 75–76
(citing Erickson, 551 U.S. at 94), and assumes, for the limited
purpose of this preliminary review, that he has exhausted his
administrative remedies.
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written statement by the factfinder of the evidence relied on
and the reasons for the disciplinary action,” Hill, 472 U.S. at
454 (citing Wolff, 418 U.S. at 563–67).
After a hearing, when a DHO disallows good time credits as
a penalty for a Code violation, due process requires the support
of that decision by “some evidence in the record.” 	Id. 	The
DHO’s decision satisfies this standard when “any evidence in the
record” exists “that could support the conclusion reached
. . . .” 	Id. at 455–56.
B. 	Mr. Izlar’s Claim
The sole claim presented by Mr. Izlar in his § 2241
petition is that he is not guilty of a Code 217 violation. 	Pet.
at 3 ¶ 9. 	Instead, Mr. Izlar suggests that the DHO should have
charged with him a Code 328 violation. 	Pet. at 2 ¶ 6. 	Implicit
in Mr. Izlar’s claim is an argument that the DHO lacked
sufficient evidence to find him guilty under Code 217, which
carries a more severe penalty – the potential disallowance of
thirty days more in good time credits – than Code 328. 	See id.;
see also § 541.3 tbl.1 (providing for the loss of “up to 50% or
up to 60 days, whichever is less” of good time credits for high
severity offenses, like Code 217, and “up to 25% or up to 30
days, whichever is less” of good time credits for moderate
severity offenses, such as Code 328).
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Mr. Izlar correctly points out that, “where, as here, a
prison disciplinary action may result in the loss of good
conduct time, a prisoner is entitled to limited due process
protections.” 	Pet. at 2 ¶ 8. 	As discussed below, the court
finds that Mr. Izlar received the limited due process
protections owed to him. 	First, BOP staff provided Mr. Izlar
with “written notice of the charges” against him when they gave
him a copy of the Incident Report on March 31, 2020. 	See
Incident Report at 5 ¶ 15; see also Surprenant, 424 F.3d at 16
(citing Wolff, 418 U.S. at 564). 	In compliance with due process
requirements, BOP staff delivered the report to Mr. Izlar “at
least twenty-four hours in advance” of the April 15, 2020 DHO
hearing. 	DHO Report at 6 ¶ I(A)–(B); see also Surprenant, 424
F.3d at 16 (citing Wolff, 418 U.S. at 570–71).
Second, Mr. Izlar had “the ability to call witnesses and
present documentary evidence.” 	See DHO Report at 6 ¶ III(C)(1);
see also Surprenant, 424 F.3d at 16 (citing Wolff, 418 U.S. at
570–71). 	He requested that the DHO call Mr. White as a witness;
however, Mr. White
was not called due to [his] receiving an incident report
as 	he 	was 	directly 	involved 	in 	the 	same 	case 	and 	was
being seen by the DHO on the same day. 	Also, due to the
precautions for COVID-19, he would not have been in the
same room at the same time.
Id. at ¶ III(C)(3). 	A prisoner does not have an “unrestricted
right” to confront and cross-examine witnesses in the prison
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disciplinary hearing context. 	Wolff, 418 U.S. at 566–68.
Rather, prison officials may impose limitations on calling and
making available other prisoners as witnesses, especially in
support of “institutional safety or correctional goals.” Id. at
566–67.
Although not constitutionally demanded, “prison officials
may be required to” provide an explanation for any limitations
placed on the prisoner’s calling of witnesses — either in the
disciplinary hearing record, “or by presenting testimony in
court,” if the prisoner specifically challenges the grounds for
denying his access to desired witnesses. 	Smith v. Mass. Dep’t
of Corr., 936 F.2d 1390, 1399 (1st. Cir. 1991) (quoting Ponte v.
Real, 471 U.S. 491, 497 (1985)). 	“So long as the reasons are
logically related to ‘institutional safety or correctional
goals,’ the explanation should meet the due process requirement
. . . .” 	Id. (quoting Ponte, 471 U.S. at 497).
Here, prison officials provided reasons based on public
health-related “institutional safety” concerns and the
“correctional goal[]” of trying Mr. White for his disciplinary
infraction. 	See DHO Report at 6 ¶ III(C)(3); see also Smith,
936 F.2d at 1399 (quoting Ponte, 471 U.S. at 497). 	Where, as
here, “the disciplinary hearing record reflects a basis for the
denial of [the prisoner’s] request to call” another prisoner as
a witness, the unavailability of the witness does not equate to
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the denial of the prisoner’s due process rights. 	See Smith, 936
F.2d at 1400. 	Further, Mr. Izlar does not challenge the reasons
given by the DHO for not calling Mr. White.
Mr. Izlar denied the charges against him, id. at ¶ III(A),
and gave a statement, id. at ¶ III(B), but did not present any
other documentary evidence. 	Mr. Izlar does not allege that he
was prevented from providing the DHO with documentary evidence,
or that he provided such evidence and the DHO declined to
consider it.
Mr. Izlar does not question the DHO’s impartiality, either.
Cf. Surprenant, 424 F.3d at 16 (citing Wolff, 418 U.S. at 570–
71). 	Lastly, the DHO, serving as factfinder, provided Mr. Izlar
with “a written statement . . . of the evidence relied on and
the reasons for disciplinary action.” 	See DHO Report at 7–8
¶ V; see also Hill, 472 U.S. at 454 (citing Wolff, 418 U.S. at
563–67). 	In addition to the Incident Report and Mr. Izlar’s
statement at his hearing, the DHO considered other evidence,
including: Mr. White’s “statement made during his DHO hearing on
April 15, 2020”; the “[r]ecorded telephone” call made by Joseph
White to Andrew White on March 11, 2020 at 2:53 PM; the “FBOP
Truview Phone Number Center Report for” Mr. White; the “FBOP
Truview Phone Number Center Report dated January 12, 2020 –
March 31, 2020”; the “FBOP Truview Inmate Center Report for
Money Received for [Mr. Izlar] dated June 9, 2017 – March 21,
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2020”; and video recording with a “[s]creenshot of A-3 Dayroom
of phone area dated March 11, 2020, 2:59 pm.” 	Id. at ¶ III(D).
After considering the evidence, the DHO found that “the
greater weight of evidence” merited a finding that Mr. Izlar
“committed the prohibited act of [C]ode 217,” specifically
because Mr. Izlar received money from another person for the
prohibited purpose of purchasing commissary items for Joseph
White while Mr. White was restricted from doing so. 	See id.
The DHO’s decision thus rested on “evidence in the record that
could support the conclusion reached,” Hill, 472 U.S. at 455-56,
satisfying the “some evidence” standard required, id. at 454, to
protect Mr. Izlar’s due process rights.
Mr. Izlar’s petition does not specifically claim that the
disciplinary proceedings against him violated his due process
rights. 	Construed generously, however, to assert a due process
claim alleging that the evidence before the DHO was insufficient
to support a finding that Mr. Izlar violated Code 217, rather
than the less serious Code 328, the petition does not state a
valid claim for relief. 	Cf. § 2254 Rule 4; LR 4.3(d)(4)(A)(i).
III. Conclusion
For the foregoing reasons, the district judge should deny
the § 2241 petition, direct that this case be closed, and direct
that judgment be entered. 	Any objections to this Report and
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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 specific written objections to the Report and
Recommendation 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). 	“Only those issues
fairy raised by the objections to” this Report and
Recommendation “are subject to review in the district court and
those not preserved by such objection are precluded on appeal.”
Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
March 22, 2022
cc: 	James Izlar, Jr., pro se
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