Cummings v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Armani Cummings
v. 	Case No. 21-cv-876-LM
Robert Hazlewood, Warden, Federal
Correctional Institution, Berlin
REPORT AND RECOMMENDATION
Armani Cummings, 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 violation expunged
from his record, and to have the good conduct time he lost as a
sanction for that disciplinary violation restored. 	The matter
is here for preliminary review to determine whether Mr. Cummings
has asserted facially valid claims of a violation of his federal
rights. 	See 28 U.S.C. § 2243; Rule 4 of the Rules Governing
Section 2254 Cases (“§ 2254 Rules”); § 2254 Rule 1(b)
(authorizing court to apply § 2254 Rules to petitions filed
under § 2241); LR 4.3(d)(4).
Preliminary Review Standard
Pursuant to § 2254 Rule 4, a judge is required to examine a
petition for habeas relief and, if “it plainly appears from the
petition and any attached exhibits that the petitioner is not
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entitled to relief in the district court, the judge must dismiss
the petition.” 	Id. 	“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).
The court construes [petitioner]’s pleadings liberally,
considering his pro se status. 	See Dutil v. Murphy, 550 F.3d
154, 158 (1st Cir. 2008).
Background
On December 3, 2020, Mr. Cummings was incarcerated at the
Federal Correctional Institution in Loretto, Pennsylvania (“FCI
Loretto”), where he shared a cell with Reynaldo Colon. 	On that
date, a case manager in an office near their cell asked FCI
Loretto Case Manager H. Gottshall, who was walking by, to check
on commotion she could hear coming from Mr. Cummings’s and Mr.
Colon’s cell. 	Mr. Gottshall prepared a disciplinary report,
stating that he looked into the cell and could see Mr. Cummings
on top of Mr. Colon and saw Mr. Cummings’s “arms wrapped around
[Mr. Colon’s] neck in a choke hold.” 	Jan. 12, 2021 Discipline
Hr’g Officer Report (“DHO Report”) (Doc. No. 1-1, at 2). 	After
Mr. Gottshall opened the cell door, Mr. Cummings released Mr.
Colon, and Mr. Gottshall brought them both to the Special Housing
Unit. 	Both inmates underwent a clinical examination which
disclosed no apparent injuries.
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Mr. Gottshall prepared a disciplinary report on the date of
the incident, charging Mr. Cummings with violating Federal Bureau
of Prisons (“BOP”) Code 224, “Assaulting Another Person without
Serious Injury.” 	See DHO Report (Doc. No. 1-1, at 1). 	The next
day, December 4, 2020, Mr. Colon signed a witness statement
stating that he had not been the victim of an assault, and that
he did not know what Mr. Gottshall had seen, but what really
happened is that he had fallen over while leaning back in a
chair, and that Mr. Cummings was helping him up by lifting him up
from under his armpits. 	See Dec. 4, 2020 Reynaldo Colon
Statement (Doc. No. 1-1, at 5-6).
The December 3, 2020 incident was referred for an
investigation. 	Mr. Cummings has asserted that the Special
Investigative Supervisor concluded that he was “innocent of the
charged incident.” 	See Dec. 29, 2020 Inmate Req. to Warden (Doc.
No. 1-1, at 8).
The disciplinary charge proceeded to a hearing before a
disciplinary hearing officer (“DHO”). 	See Dec. 29, 2020 Resp.
(Doc. No. 1-1, at 7). 	Mr. Cummings declined staff representation
at the hearing. 	See DHO Report (Doc. No. 1-1, at 1).
At the January 5, 2021 hearing, Mr. Cummings testified that
he was helping Mr. Colon up from a fall, with his arms underneath
Mr. Colon’s underarms, when Mr. Gottshall entered the cell. 	Mr.
Cummings called Mr. Colon as a witness, who disputed Mr.
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Gottshall’s statement that he saw Mr. Cummings’s arms around his
neck, and whose testimony was essentially consistent with and
generally corroborated Mr. Cummings’s testimony about Mr.
Cummings helping him up from a fall, and about the consensual
nature of the incident.
Crediting the charging officer’s incident report as true;
assigning little weight to the inmates’ testimony, who he
concluded had a motive to lie; and considering the absence of any
injuries to either inmate, the DHO found that Mr. Cummings was
guilty of the charged disciplinary violation. 	DHO Report (Doc.
No. 1-1, at 2). 	The DHO Report explains that the charging staff
member had “no obvious reason to fabricate a statement” about
seeing a chokehold where none existed, while both of the inmates
had a “reason to lie” about what happened to avoid the imposition
of sanctions on Mr. Cummings. 	DHO Report (Doc. No. 1-1, at 2).
The DHO imposed a sanction on Mr. Cummings of a 27-day loss of
good conduct time; a 90-day loss of visiting privileges; as well
as 14 days of disciplinary segregation, suspended for 180 days.
DHO Report (Doc. No. 1-1, at 3).
Mr. Cummings appealed the January 2021 decision of the DHO.
His administrative appeals were denied at each level. 	See, e.g.,
Aug. 19, 2021 Central Office Resp., Admin. Remedy No. 1069500-A1
(Doc. No. 1-1, at 11); Mar. 30, 2021 Reg’l Office Resp., Admin.
Remedy No. 1069500-R1 (Doc. No. 1-1, at 9). 	In his § 2241
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petition, Mr. Cummings has maintained, as he did in his
administrative appeals, that there was insufficient evidence to
support the finding that he had assaulted Mr. Colon, as his
contacts with Mr. Colon were consensual, did not involve contact
with Mr. Colon’s neck, and were not otherwise consistent with an
assault. 	See Doc. No. 1, at 2-5.
Discussion
I. 	Due Process and Disciplinary Proceedings
The minimum procedural 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 of
the evidence relied on and 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).
Due process further requires that the DHO’s decision be
supported by “some evidence” in the record. 	Superintendent,
Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985).
“Ascertaining whether this standard is satisfied does not
require examination of the entire record, independent assessment
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of the credibility of witnesses, or weighing of the evidence.”
Id.
II. 	Some Evidence
The eyewitness statement of the charging officer, recorded
in an incident report, may suffice as “some evidence” upon which
a decisionmaker could base a finding of a prison disciplinary
violation, even if the incident report is disputed by the
inmate. 	See Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir.
2008); see also Anderson v. Coleman, 649 F. App’x 730, 731 (11th
Cir. 2016); McCarthy v. Warden Lewisburg USP, 631 F. App’x 84,
86 (3d Cir. 2015); Ruelas v. Zuercher, 240 F. App’x 796, 797
(10th Cir. 2007); Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir.
2001); McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999);
Burman v. Warden, FCI Berlin, No. 20-cv-982-JD, 2021 DNH 110,
2021 U.S. Dist. LEXIS 130978 *11-*12, 2021 WL 2953183, at *4
(D.N.H. July 14, 2021).
Here, Mr. Cummings was charged with a BOP Code 224 assault.1
In finding Mr. Cummings guilty of that disciplinary offense, the
DHO relied on Mr. Gottshall’s incident report. 	Although Mr.
1 BOP regulations provide that a Code 224 assault charge is
“used when less serious physical injury or contact has been
attempted or accomplished by an inmate.” 	28 C.F.R. § 541.3,
Table 1, Code 224.
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Colon and Mr. Cummings disputed Mr. Gottshall’s account and
maintained that Mr. Gottshall’s view was obstructed, the DHO
reasonably exercised his discretion in assigning little weight
to their testimony. 	The DHO reasonably concluded that the
inmates had a motive to lie about what had happened to protect
Mr. Cummings from disciplinary consequences, while crediting the
FCI Loretto staff member, who the DHO reasonably found had no
apparent reason to fabricate what he had seen. 	It is within the
discretion of a DHO to make such credibility determinations and
to assign controlling weight to the charging staff member’s
recorded statement, even if it is completely disputed by the
inmate. 	See Ferreira v. Dubois, 963 F. Supp. 1244, 1254 (D.
Mass. 1996); see also Hartsfield, 511 F.3d at 831.
The Federal Constitution does not require
evidence that logically precludes any conclusion but
the one reached by the disciplinary board. 	Instead,
due process in this context requires only that there
be some evidence to support the findings made in the
disciplinary hearing.
Hill, 472 U.S. at 457. 	Mr. Gottshall’s statement, that in
response to another staff member’s complaint about “commotion,”
he saw Mr. Cummings’s arms around Mr. Colon’s neck in a “choke
hold,” reasonably credited as true by the DHO, also gives rise
to a further reasonable inference that the contact was non-
consensual, even if no injuries resulted. 	Accordingly, the
DHO’s finding that Mr. Cummings committed the charged
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disciplinary violation -- an assault that resulted in no serious
injuries -- is supported by “some evidence,” thus satisfying
that requirement of the Due Process Clause.
III. Remaining Due Process Requirements
Mr. Cummings does not dispute that he received prior notice
of his rights to present evidence, to call witnesses, and to have
a staff representative assist him at that hearing. 	He testified,
presented evidence, and called another inmate to testify, and he
received the DHO Report afterwards, which details the DHO’s
reasoning. 	See DHO Report (Doc. No. 1-1, at 1-3). 	Mr. Cummings
was able to appeal the DHO’s decision through several tiers of
BOP administrative review. 	There is no claim of bias in the
petition, and no evidence of bias in the proceedings. 	Cf.
Perotti v. Marberry, 355 F. App’x 39, 43 (7th Cir. 2009) (“an
adjudicator is entitled to a presumption of ‘honesty and
integrity’ absent clear evidence to the contrary” (citing Withrow
v. Larkin, 421 U.S. 35, 47 (1975))).
Upon review of the § 2241 petition and the materials from
the BOP record that Mr. Cummings has attached to the petition as
exhibits, it is apparent that Mr. Cummings is not entitled to any
relief on his due process claims. 	The § 2241 petition is
properly denied at this stage of the case. 	See 28 U.S.C. § 2243;
§ 2254 Rule 4; LR 4.3(d)(4).
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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
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
November 22, 2021
cc: 	Armani Cummings, pro se
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