Roberts v. FCI Berlin

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Phillip Roberts
v. 	Case No. 20-cv-618-SE
Warden, FCI Berlin
REPORT AND RECOMMENDATION
The Warden of the Federal Correctional Institution in
Berlin, New Hampshire (“FCI Berlin”) moves to dismiss, see
Resp’t’s Mot. to Dismiss (Doc. No. 14), Phillip Roberts’s 28
U.S.C. § 2241 petition for a writ of habeas corpus (Doc. Nos. 1,
5)1 on the grounds that it fails to state a claim for relief.
Mr. Roberts, who is incarcerated at FCI Berlin and is proceeding
pro se, objects. 	See Pet’r’s Resp. to Warden’s Mot. to Dismiss
(hereinafter “Resp. to Mot. to Dismiss”) (Doc. No. 15). 	In his
petition, Mr. Roberts challenges a Bureau of Prison (“BOP”)
disciplinary proceeding and the penalties imposed against him
for committing an infraction under the BOP Prohibited Acts Code
1 Mr. Roberts initially requested relief under Federal Rule of
Civil Procedure 60(b). 	See Doc. No. 1. 	He filed a motion
asking the court to construe his filing as a petition for a writ
of habeas corpus under 28 U.S.C. § 2241. 	Doc. No. 3. 	The court
granted that motion and directed the case to proceed accordingly
for all purposes. 	Mr. Roberts filed his completed § 2241
petition, Doc. No. 5, attaching his original petition and
accompanying documents to that filling, Doc. No. 5-1. 	The court
considers Doc. No. 5, including the attachments thereto, to be
the operative § 2241 petition in this case.
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(“Code”), 28 C.F.R. § 541.3 tbl.1. 	As discussed herein, the
district judge should grant the Warden’s motion, as the BOP
proceedings and sanction did not violate Mr. Roberts’s due
process rights.
I. 	Motion to Dismiss Standard
To defeat a Rule 12(b)(6) motion to dismiss, “the facts
alleged in the complaint, taken as true by the court, which also
draws all inferences in the pleader’s favor, ‘must state a
plausible, not merely conceivable, case for relief.’”
Cebollero-Bertran v. P.R. Aqueduct & Sewer Auth., 4 F.4th 63, 69
(1st Cir. 2021) (quoting Sepúlveda-Villarini v. Dep’t of Educ.,
628 F.3d 25, 29 (1st Cir. 2010)). 	The court must, however,
“isolate and ignore statements in the complaint that simply
offer legal labels and conclusions or merely rehash cause-of-
action elements.” 	Lyman v. Baker, 954 F.3d 351, 360 (1st. Cir
2020) (quoting Schatz v. Republican State Leadership Comm., 669
F.3d 50, 55 (1st Cir. 2012)).
In ruling on a Rule 12(b)(6) motion, the court’s assessment
of plausibility “is ‘a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.’” 	Cebollero-Bertran, 4 F.4th at 70 (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009)); accord Lyman, 954 F.3d at 360.
The court “may also consider ‘facts subject to judicial notice,
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implications from documents incorporated into the complaint, and
concessions in the complainant’s response to the motion to
dismiss.’” 	Breiding v. Eversource Energy, 939 F.3d 47, 49 (1st
Cir. 2019) (quoting Arturet-Vélez, R.J. Reynolds Tobacco Co.,
429 F.3d 10, 13 n.2 (1st Cir. 2005)). 	The court liberally
construes the pleadings of a pro se petitioner. 	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)).
II. 	Background
Mr. Roberts challenges a discipline hearing officer (“DHO”)
decision finding him guilty of violating Code 299 in a manner
most like Code 224 while incarcerated at FCI Berlin. 	See Pet.
for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (hereinafter
“Pet.”) (Doc. No. 5 at 2 ¶ 6); Pet’r’s Fed. R. Civ. P. 60(b)
Mot., Pet. Attachs. (hereinafter “Pet. Attachs.”) (Doc. No. 5-1
at 2). 	Code 299 prohibits:
Conduct 	which 	disrupts 	or 	interferes 	with 	the 	security
or orderly running of the institution or the [BOP] most
like another High severity prohibited act. 	This charge
is to be used only when another charge of High severity
is not accurate. 	The offending conduct must be charged
as “most like” one of the listed High severity prohibited
acts.
28 C.F.R. § 541.3 tbl.1. 	Code 224 forbids “[a]ssaulting any
person (a charge at this level is used when less serious
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physical injury or contact has been attempted or accomplished by
an inmate).” 	Id.
The disciplinary charges at issue stem from a May 17, 2019
incident involving Mr. Roberts and two other prisoners, Terry
Scott and Steven Bugni. 	Incident Report, Pet. Attachs. (Doc.
No. 5-1 at 17 ¶ 11). 	According to the Incident Report, Mr.
Bugni “assaulted" Mr. Scott “in Gym A of the Inside Recreation
Department,” and Mr. Roberts “was present and observed this
assault . . . .” 	Id. 	According to an internal BOP Special
Investigative Supervisor (“SIS”) investigation, Mr. Roberts, as
“the local leader of the Black Disciples street gang, . . .
instructed . . . Bugni (also a Black Disciple) to perform this
assault.” 	Id. 	The SIS investigation also determined that,
prior to Mr. Bugni assaulting Mr. Scott, Mr. Roberts had
“exchanged emails with” another individual, identified as “John
Rucker,” “who told . . . Roberts[,] ‘Be careful with dude
(Scott) he working with the feds don’t tell none of your
business (sic).’” 	Id.
The Incident Report, dated June 6, 2019, describes what
transpired on May 17, 2019 and includes the findings of the SIS
investigation conducted between May 17, 2019 and June 6, 2019,
when the SIS Office became “aware of the closure of [the]
investigation” at 9:00 a.m. 	Id. 	BOP staff signed the Incident
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Report ten minutes later at 9:10 a.m., id., and Mr. Roberts
received a copy at 12:01 p.m., id. at ¶ 16.
Prior to the commencement of the DHO hearing, a BOP staff
member advised Mr. Roberts of his rights on June 10, 2019. 	See
DHO Report, Pet. Attachs. (Doc. No. 5-1 at 18 ¶ I(C)). 	Mr.
Roberts waived his right to staff representation and did not
request to call any witnesses at the hearing. 	Id. at ¶¶ II(A),
III(C)(1). 	Eleven days later, on June 21, 2019, the DHO
conducted a hearing on the Code 299 most like 224 offense charge
levied against Mr. Roberts. 	Id. at ¶ I(B). 	The DHO summarized
the charges: “Conduct Which Disrupts or Interferes with the
Security or Orderly Running of the Institution Most Like
Assaulting Any Person.” 	Id. at 18 (“Summary of charges”).
Mr. Roberts denied the charges against him. Id. at
¶ III(A). 	He offered the following statement:
First things first, when I turned (sic) 35, I’m retiring
from 	this. 	Kelley2 	interviewed 	me. 	I 	said 	if 	you’re
S.I.S. 	you 	know 	where 	we 	sit 	and 	I’m 	not 	on 	gang 	time.
I’ve 	been 	staying 	out 	of 	trouble, 	over 	three 	years. 	I
have no authority.
Id. at ¶ III(B). 	The DHO asked Mr. Roberts why Mr. Bugni
assaulted Mr. Scott after Mr. Roberts emailed Mr. Rucker about
Mr. Scott, id., and ascertained that Mr. Scott was cooperating
with the federal government, Incident Report at 17 ¶ 11. 	Mr.
2 Neither the Incident Report nor the DHO Report identifies
Kelley’s official role.
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Roberts replied, “I don’t know. 	[Mr. Bugni] could get this info
on his own.” 	DHO Report at ¶ III(B). 	The DHO then asked Mr.
Roberts, “Why were you conversing with Bugni and then go with
him to stand by while Bugni assaulted Scott?” 	Id. 	Mr. Roberts
said, “I went there to see that the dude” — understood by the
DHO as Mr. Bugni — “didn’t hurt [Mr. Scott].” 	Id.
In addition to taking Mr. Roberts’s statement at the
hearing, the DHO, in reaching its decision,
considered the following documents: Inmate Investigative
Report, 	Memorandum 	from 	G. 	Koppel, 	SIS 	Technician,
TRULINCS 	Email 	from 	inmate 	Robert’s 	account, 	Inmate
Names 	Roster, 	Clinical 	Encounter 	and 	Imaging
Interpretation of inmate Scott . . ., Video Footage and
Still 	Photos 	of 	video 	footage 	and 	written 	statement
submitted by inmate Roberts.
Id. at ¶ III(D). 	The DHO also relied on the Incident Report.
Id. 	Where the DHO Report allows the DHO to record its
consideration of confidential information not revealed to the
prisoner, the DHO wrote “N/A.” 	Id. at ¶ III(E).
After the hearing, the DHO found Mr. Roberts committed the
offense charged “based on the greater weight of evidence, that
being the written account of the incident and evidence
provided.” 	Id. at 21 ¶ V. 	The DHO then imposed the following
penalty: disallowance of twenty-seven days of good time credit,
disciplinary segregation for twenty-eight days suspended pending
180 days clear conduct, and loss of commissary privileges for
six months. 	Id. at ¶ VI. 	Mr. Roberts received a copy of the
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DHO Report seven days after the hearing, on June 28, 2019. 	Id.
at ¶ IX. 	Subsequently, Mr. Roberts filed administrative appeals
challenging the DHO’s decision and resulting sanctions; his
appeals were unsuccessful. 	See Pet. at 2 ¶ 7(a), 3 ¶ 8(a); see
also BP-11 Filing, Pet. Attachs. (Doc. No. 5-1 at 26); Admin.
Remedy No. 984558-A1, Part B – Response (Oct. 31, 2019), Pet.
Attachs. (Doc. No. 5-1 at 16) (denying central appeal).
III. Discussion
A. 	Legal Standard
Mr. Roberts contends that the DHO’s disciplinary
proceedings against him, resulting in the revocation of good
time credit, violated his Fifth Amendment due process rights on
two grounds. 	See Pet. at 6 ¶ 13; Pet. Attachs. at 3, 9. 	He
argues that the BOP failed to notify him in a timely fashion of
the charges against him, contrary to BOP regulation and policy
(Ground Two), see Pet. at ¶ 6; Pet. Attachs. at 3–8, and the DHO
lacked enough reliable evidence to find him guilty of violating
Code section 299 most like 224 (Ground One), Pet. at ¶ 6; see
also Pet. Attachs. at 9–14.
“[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
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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), 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).
After a hearing, when a DHO disallows good time credit as a
penalty for a Code violation, due process requires the support
of that decision by “some evidence in the record.” 	Hill, 472
U.S. at 454. 	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. Robert’s Claims
1. 	Timely Notice of the Charges
In Mr. Roberts’s view, the BOP failed to (1) provide him
with a copy of the Incident Report within five business days of
BOP staff becoming aware of Mr. Roberts’s involvement in the
incident at issue and (2) document the delay as discussed by BOP
Program Statement 5270.09. 	Pet. Attachs. at 3–5. 	Specifically,
Mr. Roberts argues that BOP staff falsely claimed in the
Incident Report that they became aware of the incident involving
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Mr. Roberts on June 6, 2019, whereas the DHO Report reflects —
accurately – that staff were aware of the incident on May 17,
2019, the day of the assault on Mr. Scott. 	Id. at 4.3
The court “defer[s] to [an] agency’s interpretations of
regulations of its own creation unless the agency’s position is
‘plainly erroneous or inconsistent with the regulation.’”
Castro-Soto v. Holder, 596 F.3d 68, 72 (1st Cir. 2010) (quoting
Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir.
2008)); accord City of Taunton v. U.S. Env’t Prot. Agency, 895
F.3d 120, 126–27 (1st Cir. 2018) (quoting Auer v. Robbins, 519
U.S. 452, 461 (1997)). 	The relevant BOP regulation indicates
that a prisoner “will ordinarily receive the incident report
within 24 hours of staff becoming aware of [the prisoner’s]
3 The Warden, in his motion to dismiss, argues that Mr.
Roberts failed to exhaust his administrative remedies on the
timeliness issue before filing his petition for a writ of habeas
corpus in this court. 	Resp’t’s Mot. to Dismiss at 1–2. 	Mr.
Roberts asserts that he filed the appropriate administrative
appeals, resulting in exhaustion of his claims, and if he did
not raise the timeliness issue effectively in his administrative
appeals, then the court should construe his administrative
appeals liberally. 	Resp. to Mot. to Dismiss at 1–2. 	The court
may deny a habeas petition on the merits, despite the
petitioner’s failure to exhaust his administrative remedies.
See Martinez v. Davis, 393 F. App’x 570, 571 (10th Cir. 2010)
(“[I]t is not inconsistent with § 2241 . . . to follow the
policy of § 2254(b)(2) and deny the petition on the merits
without considering exhaustion.” (internal punctuation omitted)
(quoting Montez v. McKinna, 208 F.3d 862, 866 (10th Cir.
2000))); see also Thompson v. Ricci, 326 F. App’x 116, 118 (3d
Cir. 2009); cf. 28 U.S.C. § 2254(b)(2). 	Accordingly, the court
declines to address the exhaustion issue here and instead rules
on the merits of the claims in the petition.
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involvement in the incident.” 	28 C.F.R. § 541.5(a). 	“Courts
have consistently held,” however, that this regulation, “by its
terms is not mandatory, and, in any event, does not ‘create an
enforceable right.’” 	Cipriano v. Fed. Bureau of Prisons, C.A.
No. 17-377-WES, 2017 WL 6942439, at *7; 2017 U.S. Dist. LEXIS
215112, at *21 (D.R.I. Dec. 6, 2017) (citations omitted), R&R
approved, 2018 WL 400768, at *1; 2018 U.S. Dist. LEXIS 6013, at
*1 (D.R.I. Jan. 12, 2018); see also Millhouse v. Warden
Lewisburg USP, 785 F. App’x 931, 934 (3d Cir. 2019) (“[T]he
[BOP] regulations do not mandate that timing, and neither does
Wolff.”).
Furthermore, unlike BOP regulations, “the BOP’s Program
Statements ‘are merely internal agency guidelines and may be
altered by the [BOP] at will.’” 	De La Cruz v. Grondolsky, No.
12-40015-RGS, 2012 WL 3059431, at *2; 2012 U.S. Dist. LEXIS
104487, at *5 (D. Mass. July 27, 2012) (citation omitted).
“Interpretive rules do not have the force and effect of law and
are not accorded that weight in the adjudicatory process.” 	Id.;
2012 U.S. Dist. LEXIS 104487, at *5 (alterations omitted)
(quoting Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99
(1995)). 	BOP Program Statement 5270.09 also elaborates on the
subsection of the regulation, § 541.5(b)(1), that details the
investigation that transpires after the incident report issues.
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The 	Investigating 	Officer 	provides 	a 	copy 	of 	the
incident 	report 	to 	the 	inmate 	at 	the 	beginning 	of 	the
investigation, 	unless 	there 	is 	good 	cause 	for 	later
delivery, 	such 	as 	absence 	of 	the 	inmate 	from 	the
institution 	or 	a 	medical 	condition 	that 	argues 	against
delivery. 	If the investigation is delayed, an employee
may deliver the charge(s) to the inmate. 	The reason for
the 	delay 	must 	be 	documented 	in 	the 	discipline 	record.
The 	incident 	report 	should 	be 	delivered 	to 	the 	inmate
within 	24 	hours 	of 	the 	time 	staff 	become 	aware 	of 	the
inmate’s 	alleged 	misconduct. 	. 	. 	. 	(The 	five-day 	time
frame for a [Unit Disciplinary Committee] review starts
when the incident report is released for administrative
processing.)
U.S. Dep’t of Just., BOP Inmate Discipline Program, Program
Statement 5270.09 at 18–19 (July 8, 2011), available at
https://www.bop.gov/policy/progstat/5270_009.pdf (last viewed
Mar. 16, 2022). 	As an interpretive rule, however, this timeline
“do[es] not have the force and effect of law” and, therefore, is
“not accorded that weight in the adjudicatory process.” 	See De
La Cruz, 2012 WL 3059431, at *2; 2012 U.S. Dist. LEXIS 104487,
at *5 (granting motion to dismiss prisoner’s claim against BOP
alleging a violation of due process based on BOP’s failure to
follow Program Statement). 	Accordingly, neither the BOP’s
regulation, § 541.5(a), nor its Program Statement 5270.09
provide Mr. Roberts with a due process right to have an Incident
Report delivered to him within the timelines suggested by those
rules. 	See Wallace v. Fed. Detention Ctr., 528 F. App’x 160,
162–63 (3d Cir. 2013) (denying relief to a prisoner who argued
that “his right to due process was infringed” when “prison
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officials did not present him with charges within 24 hours of
the conduct in violation of 28 C.F.R. § 541.5(a)” and instead
“presented [him] with notice of the disciplinary charges against
him two months after” the incident).
Due process only demands “written notice of the charges at
least twenty-four hours in advance of the hearing,” Surprenant,
424 F.3d at 16 (citing Wolff, 418 U.S. at 564); see Wallace, 528
F. App’x at 163. 	Mr. Roberts received a copy of the Incident
Report, which provides him with written notice of the
disciplinary charges against him, on June 6, 2019. 	Incident
Report at 17 ¶ 16. 	The hearing took place on June 21, 2019.
DHO Report at 18 ¶ I(B). 	Mr. Roberts, therefore, received
“written notice of the charges at least twenty-four hours in
advance of the hearing,” Surprenant, 424 F.3d at 16 (citing
Wolff, 418 U.S. at 564), which provided Mr. Roberts the due
process required by the Fifth Amendment.
2. 	Sufficiency of the Evidence
Mr. Roberts claims that the DHO violated his due process
rights because the DHO lacked credible evidence that Mr. Roberts
violated Code 299 most like 224. 	Cf. Pet. at 5 ¶ 13.
Specifically, Mr. Roberts challenges the reliability of witness
statements from individuals identified in the DHO Report only as
Witness A and Witness B and argues that the DHO failed to
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provide Mr. Roberts with a sufficient opportunity to confront
those witnesses. 	See Pet. Attachs. at 9–14. 	Mr. Roberts also
challenges the DHO’s finding to the extent it was based on Mr.
Roberts’s written statement regarding the incident, as Mr.
Roberts “denies writing” or ever seeing it. 	Pet. Attachs. at
12. 	These arguments also lack merit.
A DHO’s decision that a prisoner committed a disciplinary
offense must be supported by “some evidence in the record.”
Hill, 472 U.S. at 454. 	That standard is satisfied when “any
evidence in the record” exists “that could support the
conclusion reached” by the DHO. 	Id. at 455–56. 	A DHO may find
that a prisoner has committed a charged disciplinary offense
where there is no direct evidence of the prisoner’s guilt. 	See
id. at 457. 	Even “meager” evidence will suffice. 	See id. 	A
court, in ascertaining whether the DHO has satisfied that
standard, need not examine the entire record, independently
assess the credibility of witnesses, or weigh the evidence. 	See
Hill, 472 U.S. at 455.
First, Mr. Roberts’s assertions that certain evidence
before the DHO may have been fabricated are entirely
speculative. 	Although the DHO Report refers to Mr. Roberts’s
written statement, Mr. Roberts did not reproduce or attach such
a statement to the forms he submitted to the Court; the DHO’s
reference to this statement may have been in error. 	Cf. DHO
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Report at 20–21 ¶ V (stating, “The DHO relied on [Mr. Robert’s]
written statement,” followed by a colon and blank space, but not
reproduced statement). 	Further, that two unidentified witnesses
may have written statements does not necessarily mean the
statements were fabricated or that they are unreliable.
Regardless, the court accepts as true Mr. Roberts’s allegations
in his petition and its attachments when considering the motion
to dismiss. 	See Cebollero-Bertran, 4 F.4th at 69.
Where, as here, the DHO considers information from
confidential informants in finding the petitioner guilty of a
disciplinary offense, if “there is other evidence supporting the
disciplinary decision, due process is satisfied ‘without
determining the reliability of the confidential informant’ or
the institutional reasons for non-disclosure.” 	Ned v. Tatum,
No. 15-cv-178-LM, 2017 WL 3822736, at *5; 2017 U.S. Dist. LEXIS
139885, at *12 (D.N.H. May 16, 2017) (quoting Espinoza v.
Peterson, 283 F.3d 949, 952 (8th Cir. 2002)). 	Accordingly, the
court reviews the evidence in the DHO Report to determine
whether “some evidence” supports the DHO’s decision, excluding
the statements of Witness A and Witness B and, similarly, the
written statement attributed to Mr. Roberts. 	The remaining
evidence is as follows:
• 	On May 13, 2019, Mr. Roberts emailed his cousin, Mr.
Rucker, about Mr. Scott; on May 14, 2019, Mr. Rucker
responded that Mr. Scott was working “with the feds,”
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and 	to 	be 	careful 	and 	not 	tell 	Mr. 	Scott 	any 	of 	his
business. 	DHO Report at 19, 20 ¶ V.
• 	Video footage of the May 17, 2019 incident showed:
- Mr. Scott entering Gym A, followed by Mr. Bugni
and Mr. Roberts two minutes later;
- 	Mr. 	Roberts 	and 	Mr. 	Bugni 	then 	talking 	to 	each
other “for approximately eight minutes” in Gym A;
- 	Mr. 	Roberts 	and 	Mr. 	Bugni 	then 	walking 	toward
Mr. Scott, Mr. Roberts standing behind Mr. Scott,
and Mr. Bugni standing to Mr. Scott’s right side;
- 	Inmate 	Bugni 	assaulting 	Mr. 	Scott, 	to 	include:
“punch[ing] 	inmate 	Scott 	several 	times 	and 	as
inmate 	Scott 	was 	lying 	on 	the 	floor 	on 	his 	side,
. . . forcefully stomp[ing] on inmate Scott’s head
thumping if (sic) off the floor”;
- 	Mr. 	Roberts 	“stand[ing] 	close 	the 	entire 	time
and watch[ing] the assault”; and,
- approximately one minute after the assault began,
Mr. Roberts “lift[ing] both of his arms at his side
and 	inmate 	Bugni 	end[ing] 	the 	assault 	and
follow[ing] inmate Roberts out of the area.” 	Id.
at 20 ¶ V.
• 	Mr. Roberts stated at the hearing that he accompanied
Mr. 	Bugni 	to 	the 	assault 	“to 	see 	that 	[Mr. 	Bugni]
didn’t 	hurt 	[Mr. 	Scott],” 	but 	the 	video 	shows 	Mr.
Roberts offered no assistance to Mr. Scott during his
assault. 	Id.
The DHO concluded that, “based on the greater weight of
evidence,” Mr. Roberts committed the offense charged, offering
this reasoning:
[Mr. 	Roberts] 	received 	negative 	information 	about 	a
Terry 	Scott 	in 	lieu 	of 	(sic) 	asking 	an 	outside 	person
(John Rucker) on 5/14/2018 about “Cheerio” which is the
alias 	of 	inmate 	Scott. 	[Mr. 	Roberts] 	admitted 	to 	this
information 	during 	[his] 	S.I.S. 	investigation. 	Due 	to
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[Mr. Roberts] being directly involved in requesting this
information and being in close proximity of the assault
and providing a false defense of claiming to being there
to 	see 	that 	[Bugni] 	didn’t 	hurt 	[Scott], 	[Mr. 	Roberts
was] well aware of the assault that was about to occur.
[Mr. Roberts is] being charged with disruptive conduct,
most like assault due to [his] involvement.
Id. at 21 ¶ V. 	The DHO’s stated basis for finding Mr. Roberts
guilty of the disciplinary offense came entirely from actions
visible on the video, Mr. Roberts’s email exchange with Mr.
Rucker, and Mr. Roberts’s statements during the DHO hearing.
Id. 	The DHO finding, therefore, was based on evidence that Mr.
Roberts has not challenged, and the DHO could have reached this
decision without considering the written statements of Witness A
and Witness B or Mr. Roberts’s purported written statement.
Accordingly, the Court finds that the DHO’s decision that Mr.
Roberts committed the disciplinary offense charged is supported
by “some evidence in the record.” 	See Hill, 472 U.S. at 454;
cf. 	Wallace, 528 F. App’x at 163 (holding that the DHO decision
satisfied the “some evidence” standard when the DHO “relied on
videotaped evidence of the fight and eyewitness testimony,”
despite the prisoner’s assertion “that BOP officials falsified
the incident reports”). 	The DHO based their decision on
sufficient evidence, and so the decision and resulting sanction
did not deprive Mr. Roberts of due process.
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17
IV. 	Conclusion
For the foregoing reasons, the district judge should grant
the Warden’s motion to dismiss (Doc. No. 14), direct that this
case be closed, and direct that judgment be entered. 	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). 	“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 23, 2022
cc: 	Phillip Roberts, pro se
Seth R. Aframe, Esq.
Case 1:20-cv-00618-SE Document 17 Filed 03/23/22 Page 17 of 17