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Billy Preston Forbes, Jr v. Warden J.F. Caraway

April 22, 2013

BILLY PRESTON FORBES, JR.,
PETITIONER
v.
WARDEN J.F. CARAWAY,
RESPONDENT



The opinion of the court was delivered by: Deborah K. Chasanow United States District Judge

MEMORANDUM OPINION

Billy Preston Forbes, Jr., is a U.S. Bureau of Prisons ("BOP") inmate currently confined at the Federal Correctional Institution at Cumberland, Maryland ("FCI-Cumberland"). On July 25, 2012, he filed this 28 U.S.C. § 2241 Petition for Habeas Corpus relief, seeking to expunge his adjustment proceedings and to have his good conduct credits restored. ECF No. 1. Forbes claims that the evidence relied upon by the Disciplinary Hearing Officer ("DHO") was insufficiently reliable to satisfy due process. Forbes claims that the "Alco-Sensor" test used to determine whether contraband he had in his cell contained alcohol was inaccurate and unreliable. Id.

Respondent John F. Caraway, Warden of the FCI-Cumberland, by his counsel, moves for dismissal or, in the alternative for summary judgment. ECF No. 6. Petitioner has responded. ECF Nos. 8 & 16. Respondent has replied. ECF No. 10. Petitioner has filed Surreplies.*fn1 ECF Nos. 11 & 12. After consideration of these submissions, the court deems a hearing unnecessary to resolve the issues. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, summary judgment will be entered in favor of Respondent and against Petitioner.

Fed.R.Civ.P. 56(a) provides that the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

"A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir.2003) (quoting Fed.R.Civ.P. 56(e)). The court should "view the evidence in the light most favorable to .... the non-movant, and draw all reasonable inferences in [the non-movant's] favor without weighing the evidence or assessing the witness' credibility." Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639, 645 (4th Cir.2002). The court must, however, also abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir.1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).

The BOP has the authority to provide for the protection, instruction, and discipline of all persons convicted of offenses against the United States. See 18 U.S.C. § 4042(a)(3). The rules concerning inmate discipline, found in 28 C.F.R. §§ 541.1 et seq., provide for an exhaustive review process. If staff believe that an inmate has violated a BOP regulation, an incident report is prepared and the inmate is provided a written copy of the charges. Ordinarily this occurs within 24 hours of the staff's becoming aware of the incident. See 28 C.F.R. § 541.5(a).

An investigating officer will then advise the inmate of the charges against him, request a statement from the inmate, and advises him of his rights. After the investigation is completed, the matter may be informally resolved and the matter closed, or materials are forwarded to the Unit Disciplinary Committee ("UDC") for an initial review, which is ordinarily conducted within five working days. See 28 C.F.R. § 541.5(b) & 541.7. The inmate is entitled to be present at the hearing except during the deliberations of the decision makers or when institutional security would be jeopardized by the inmate's presence. The inmate may also make a statement and present documentary evidence on his own behalf. See 28 C.F.R. §§ 541.7(d) & (e).

After considering all of the evidence presented at the hearing, the UDC makes a decision based on the facts and, if there is conflicting evidence, based on the greater weight of the evidence. See 28 C.F.R. § 541.7(e). If the UDC finds that the inmate committed the prohibited act or a similar act as reflected in the incident report and determines that the violation is serious and warrants consideration for non-minor sanctions, the UDC refers the charges, without indication of findings as to the commission of the alleged violation, to the Disciplinary Hearing Officer ("DHO") for further proceedings. See 28 C.F.R. §§ 541.7(a) & (g). The UDC advises the inmate of his rights to be afforded at the hearing before the DHO and asks the inmate to indicate a choice of staff representative, if any, and the names of witnesses he wishes to be called to testify at the hearing and the nature of the testimony they are expected to provide. See 28 C.F.R. §§ 541.7(g) & 541.8.

When appearing before the DHO, the inmate is entitled to: (1) make a statement and to present documentary evidence; (2) submit the names of requested witnesses and have them called to testify; and (3) present documents on his behalf. See 28 C.F.R. §§ 541.8(d), (e) & (f). Witness testimony and documentary evidence may be presented provided the calling of witnesses and disclosure of documents does not jeopardize prison or inmate security. Id.

The DHO makes a determination as to whether or not the inmate committed the charged act(s) or similar act(s) if reflected in the incident report and prepares a record of the proceedings which need not be verbatim. See 28 C.F.R. §§ 548(h). The record documents the advisement of the inmate's rights, the findings and decision of the DHO, and the specific evidence relied on by the DHO, and includes a brief statement of the reasons for the sanctions. Id. A written copy of the DHO's decision and disposition must be provided to the inmate. Id.

In reliance on Forbes's base file and the declaration of Howard Losiewicz, Discipline Hearing Officer at FCI Cumberland, Respondent contends that Forbes's due process rights were not violated during his adjustment review process. He provides the following information:

On October 5, 2009, Forbes was designated to FCI-Cumberland. ECF No. 6, Ex. 1, Att. B. On August 14, 2011, Forbes received Incident Report Number 2198083 charging him with committing a Code 113 offense, "Making, Possessing, or Using Intoxicants" on August 13, 2011 at approximately 4:52 p.m. Id., Ex. 1, Att. C. The report indicated that Senior Officer Hunt conducted a random cell search in cell 214 and discovered a one gallon bag of homemade intoxicants in Forbes's unlocked locker. Hunt tested the contents of the bag with an ...


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