Digrazia v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Guy Phillip DiGrazia
v. 	Case No. 22-cv-441-JL
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Guy Phillip DiGrazia filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 (Doc. No. 1), challenging a
Bureau of Prisons (“BOP”) disciplinary proceeding. 	The matter
is before the court 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 Ҥ 2254
Rules”); § 2254 Rule 1(b) (applying § 2254 Rules to § 2241
petitions); LR 4.3(d)(4).
“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.
DiGrazia 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)).
Case 1:22-cv-00441-JL Document 3 Filed 12/05/22 Page 1 of 8

2
Background
Mr. DiGrazia is incarcerated at the Federal Correctional
Institute in Berlin, New Hampshire (“FCI Berlin”). 	See Pet.
(Doc. No. 1, at 1). 	In his petition, Mr. DiGrazia challenges a
BOP discipline hearing officer’s (“DHO”) decision, in which Mr.
DiGrazia was found guilty of violating BOP Prohibited Acts Code
(“Code”) 297, 28 C.F.R. § 541.3, tbl.1. 	Pet. (Doc. No. 1, at
1). 	Code 297 prohibits “use of the telephone for abuses other
than illegal activity which circumvent the ability of staff to
monitor frequency of telephone use, content of the call, or the
number called . . . .” 	28 C.F.R. § 541.3, tbl.1.
Mr. DiGrazia’s disciplinary action arises from a telephone
call he made on February 18, 2022 at 11:52 a.m. 	See BOP
Incident Report, Feb. 19, 2022, Pet. Ex. A (Doc. No. 1-1, at 1).
During the call, Mr. DiGrazia asks the individual he contacted
to transfer $250.00 to a particular Cash App account: “[w]e need
you to ASAP $250 there.” 	Id. 	According to the Incident Report,
Mr. DiGrazia first added the telephone number to his contact
list shortly before placing the call, while another inmate,
Leanell Hines, added that same number in April 2021 and
regularly placed calls to the number. 	Id. 	The Incident Report
also identifies other inmates who contacted the same telephone
number and made similar requests for money transfers on behalf
of a third party. 	Id. 	From these telephone calls, an FCI
Case 1:22-cv-00441-JL Document 3 Filed 12/05/22 Page 2 of 8

3
Berlin staff member and reporting employee gleaned that Mr.
Hines was having other inmates, including Mr. DiGrazia, place
calls to this number on his behalf. 	Id.
On February 21, 2022, a BOP staff member provided Mr.
DiGrazia with a copy of the Incident Report, which charged him
with violating Code 297. 	See DHO Report, Pet. Ex. B (Doc. No.
1-2, at 1). 	Mr. DiGrazia was advised of his rights with regard
to the disciplinary proceeding against him, initiated by the
Incident Report, on February 24, 2022, and appeared at the
disciplinary hearing on March 8, 2022. 	Id. 	During the hearing,
Mr. DiGrazia waived his right to a staff representative, as well
as his right to call witnesses. 	Id. 	He also denied the charge
of a Code 297 violation. 	Id. 	When questioned by the DHO as to
whom the telephone number at issue belonged, Mr. DiGrazia stated
“Preston Faulk.” 	Id. 	The DHO then asked Mr. DiGrazia: “[w]hy
do you have the number . . . listed as Brian Gore if you just
told me your friend’s name is Preston Faulk?” 	Id. 	Mr. DiGrazia
responded that he “didn’t know” and that he listed all telephone
numbers on his list with that name. 	Id. 	Mr. DiGrazia further
stated: “I didn’t know I couldn’t do that. I’ve been doing it
for 13 years.” 	Id. 	The DHO pointed out to Mr. DiGrazia that
every time he signs into the BOP’s inmate communication system,
he has to acknowledge and agree that the information he has
Case 1:22-cv-00441-JL Document 3 Filed 12/05/22 Page 3 of 8

4
provided about the individuals on his approved contact list is
“accurate and complete.” 	Id. at 3.
Ultimately, the DHO found, based on the greater weight of
evidence, that Mr. DiGrazia committed an act prohibited by Code
297. 	Id. at 2-5. 	As a sanction for the violation, Mr. DiGrazia
lost 27 days of good conduct time, and he lost his telephone
privileges for three months. 	Id. at 4-5.
On March 15, 2022, Mr. DiGrazia received a copy of the DHO
Report. 	Id. at 5. 	Mr. DiGrazia subsequently filed an
administrative appeal challenging the DHO’s decision and related
sanctions. 	See Admin. Appeal Resp., Pet. Ex. C (Doc. No. 1-3).
The appeal was ultimately denied by a National Inmate Appeals
Administrator. 	Id. 	Mr. DiGrazia now seeks relief in this court
and asks for expungement of the Incident Report, as well as
reinstatement of the 27 days of disallowed good conduct time.
Pet. (Doc. No. 1, at 2).
Discussion
I. 	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
Case 1:22-cv-00441-JL Document 3 Filed 12/05/22 Page 4 of 8

5
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
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).
When a DHO disallows good time credits as a penalty for a
disciplinary violation after a disciplinary hearing, 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. 	“The evidentiary
requirement in reviewing prison disciplinary actions is met even
when the evidence ‘might be characterized as meager’; it simply
must not be ‘so devoid of evidence as to make the findings of
the institution without support or otherwise arbitrary.’” 	Brown
v. Kallis, No. 21-cv-920 (PJS/ECW), 2022 U.S. Dist. LEXIS 92674
at *27–28, 2022 WL 1652933 at *8 (D. Minn. Apr. 21, 2022)
(quoting Flowers v. Anderson, 661 F.3d 977, 980 (8th Cir. 2011)
(quoting Hill, 472 U.S. at 457)), R&R adopted, 2022 U.S. Dist.
LEXIS 92665, at *1, 2022 WL 1645666, at *1 (D. Minn. May 24,
2022). 	“Ascertaining whether this standard is satisfied does
Case 1:22-cv-00441-JL Document 3 Filed 12/05/22 Page 5 of 8

6
not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of the
evidence.” 	Hill, 472 U.S. at 456.
II. 	Mr. DiGrazia’s Due Process Claim
The sole claim presented by Mr. DiGrazia in his Section
2241 petition is that the DHO lacked sufficient evidence in the
record to find Mr. DiGrazia guilty of a Code 297 violation.1
According to the DHO Report, the DHO found Mr. DiGrazia guilty
of using “the telephone for abuses other than illegal activity
which circumvent the ability of staff to monitor frequency of
telephone use, content of the call, or the number called . . .”
28 C.F.R. § 541.3, tbl.1, when Mr. DiGrazia provided a false
name for an individual on his telephone contact list and
subsequently contacted that individual on behalf of another
inmate, Mr. Hines. 	DHO Report, Pet. Ex. B (Doc. No. 1-2, at 2-
5).
To comport with Mr. DiGrazia’s due process rights, the
DHO’s decision must have been supported with a “written
statement . . . of the evidence relied on” in reaching that
decision. 	See Hill, 472 U.S. at 454 (citing Wolff, 418 U.S. at
1 Mr. DiGrazia does not allege that he was denied any other
due process protections to which he is entitled under Hill,
Wolff, and Surprenant, and the record before the court
demonstrates that he was provided with those protections prior
to and at the DHO hearing.
Case 1:22-cv-00441-JL Document 3 Filed 12/05/22 Page 6 of 8

7
563–67). 	The “evidence relied on” must amount to “some
evidence,” id., a standard met by pointing to “any evidence in
the record” in “support [of] the conclusion reached,” id. at
455–56. 	“Even when there is substantial evidence to the
contrary,” the DHO “may find [an incident] report to be credible
and therefore take disciplinary action.” 	Brown, 2022 WL 1652933
at *8 (internal quotation marks omitted) (quoting Hrbek v. Nix,
12 F.3d 777, 781 (8th Cir. 1993)); Hill, 472 U.S. at 457 (“The
Federal Constitution does not require evidence that logically
precludes any conclusion but the one reached . . . .”).
The DHO’s decision met this standard. 	The issued written
report cites sufficient evidence upon which the DHO could rely
to support the conclusion that Mr. DiGrazia violated Code 297.
DHO Report, Pet. Ex. B (Doc. No. 1-2, at 2-5). 	In particular,
the DHO specified reliance upon the fact that Mr. DiGrazia added
the telephone number at issue to his account on February 17,
2022 and identified the person associated with that number as
“sibling,” while Mr. Hines added the same number to his account
on April 2, 2021 and identified the person associated with that
number as “friend.” 	Id. at 3. 	The DHO also indicated reliance
upon the written account of Mr. DiGrazia’s telephone call in the
Incident Report. 	Id. 	Further, the DHO relied upon Mr. DiGrazia
listing the telephone number as belonging to Brian Gore, yet
subsequently testifying at the hearing that it belonged to
Case 1:22-cv-00441-JL Document 3 Filed 12/05/22 Page 7 of 8

8
Preston Faulk, despite the fact that Mr. DiGrazia had agreed to
provide accurate and complete information for individuals listed
in his contact list in order to place the February 18, 2022
call. 	Id. at 4. 	In sum, the DHO relied upon sufficient
evidence to support the determination that Mr. DiGrazia violated
Code 297. 	Accordingly, the district judge should dismiss Mr.
DiGrazia’s petition as legally insufficient on its face.
Conclusion
For the foregoing reasons, the district judge should deny
Mr. DiGrazia’s Section 2241 petition and direct the clerk to
close the case and enter judgment. 	Any objections to this
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 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).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 5, 2022
cc: 	Guy Phillip DiGrazia, pro se
Case 1:22-cv-00441-JL Document 3 Filed 12/05/22 Page 8 of 8