United States District Court, D. Maryland
J. HAZEL United States District Judge
confined at the Federal Correctional Institution
("FCI") in Cumberland, Maryland, Brandon Lee
Caudle, a U.S. Bureau of Prisons ("BOP") inmate,
filed a self-represented 28 U.S.C. § 2241 Petition
challenging his April 2014 disciplinary report, which was
issued while he was incarcerated at the Federal Correctional
Institution in Elkton, Ohio. In the April 2014 report, he was
charged with a Code violation for "Use of the Telephone
for Abuses Other Than Criminal Activity" and, after his
Disciplinary Hearing Officer ("DHO") hearing, he
was found guilty and sanctioned to 360 days disciplinary
segregation, with 300 days suspended, 180 days loss of
commissary, 180 days impounding personal property, and the
loss of 40 days of good conduct time ("GCT"). ECF
contends that his due process rights were violated when (1)
DHO Montgomery failed to notify Caudle that he was increasing
the severity of the incident report from a Code 297 to a Code
197; (2) Staff Representative D. Smith failed to object to:
(a) the increase of the severity of the incident report, (b)
DHO Montgomery's failure to consider evidence presented,
and DHO Montgomery's failure to allow Caudle to present
testimony from his father as a witness; and (3) DHO
Bittenbender: (a) failed to conduct a full rehearing on the
incident report, (b) did not allow Caudle to have a staff
representative, (c) failed to allow Caudle to present
evidence in his defense; (d) failed to permit Caudle to call
his father as a witness, and (d) amended the DHO report on
January 7, 2015, without giving him a copy. ECF No. 1.
pending before the Court is Respondent's Motion to
Dismiss or, in the Alternative, for Summary Judgment filed by
Respondent on June 1, 2017. ECF No. 4. The Motion has been
fully briefed and is ready for disposition; a hearing is
unnecessary. See Local Rule. 105.6 (D. Md. 2016).
For reasons set forth below, Respondent's Motion,
construed as a Motion for Summary Judgment, is granted.
is currently serving an 89-month sentence following his
December 2013 convictions for mail fraud and aggravated
identity theft in the United States District Court for the
Eastern District of Virginia. ECF No. 4-2 at 3; see also
United States v. Caudle, Criminal No. HEH-13-0154 (E.D.
Va.). On March 31, 2014, FCI Elkton mailroom staff received a
package addressed to Caudle which appeared suspicious because
the postal tag did not match the return address. Id.
The return address was "Parker Publications" in New
York, New York, and had an incomplete zip code of
"1001." The postal tag showed that the package was
shipped from zip code 28027 in North Carolina. Inside the
package was a hardcover book entitled "The Jersey
investigation by FCI Elkton staff revealed that Caudle's
father lives in North Carolina. Id. Respondent
maintains that telephone calls between Caudle and his father
were monitored and on March 25, 2014, approximately six days
before the package arrived, Caudle was overheard asking his
father to send him a copy of "The Jersey Sting."
Id. His father complained about the cost of sending
books and Caudle instructed his father to send the book by
"media mail" because it was cheaper, but to make
sure it was from a publisher. Id. at 3-4, 14.
April 10, 2014, Caudle received an incident report charging
him with violating Disciplinary Code 297. "Use of the
Telephone for Abuses Other Than Criminal Activity."
Id. at 4, 14. On April 17, 2014, a Unit Discipline
Committee ("UDC") reviewed the incident report and
due to the severity of the incident, referred the incident
report to the DHO. Id. Caudle received a copy of his
rights and requested Counselor D. Smith as a staff
representative, but declined to request any witnesses.
Id. at 4, 18-20.
April 21, 2014, Caudle was informed that DHO Timothy
Montgomery, the DHO at FCI Elkton, was considering a higher
offense of a Code 197 violation, "Use of a Telephone to
further Criminal Activity (Attempted), " instead of a
Code 297 violation, and that Caudle would have at least 24
hours before the hearing to prepare his case. Id. at
hearing before DHO Montgomery occurred on April 23, 2014.
Id. at 4. Caudle appeared with a staff
representative. Montgomery found that Caudle had committed
the prohibited act of a Code 197 violation and sanctioned him
to the loss of 40 days good conduct time ("GCT"),
360 days of disciplinary segregation (300 days suspended
pending 180 days of clear conduct), 180 days loss of
commissary privileges, and the impounding of personal
property for 180 days. Id. at 4, 22-25.
appealed the decision to the BOP Regional Office, which, on
November 7, 2014, remanded the case for further review of the
level of severity of the offense and for rehearing.
Id. at 5; see also ECF No. 1-5. Caudle
transferred from FCI Elkton to FCI Allenwood on November 10,
2014. Bittenbender. the DHO at Allenwood, conducted the
rehearing on December 4, 2014. Id. Caudle was
verbally advised of his rights, including his right to a
staff representative and witnesses, but did not request
either. Id. Bittenbender denies telling Caudle that
no rehearing was necessary or that neither a staff
representative nor witnesses were necessary. Id.
Caudle was given and took advantage of the opportunity to
present evidence at the DHO rehearing that he believed was
exculpatory. Id. at 35.
Bittenbender took information from Caudle's original
hearing and "imported it into a new form, noting his
amendments in bold type." Id. at 5.
Bittenbender reviewed all the evidence anew, including
photographs showing that a package containing the book
"The Jersey Sting" was sent to Caudle from North
Carolina but bearing a false New York return address.
Id. at 6. Bittenbender examined the description of
tie telephone call between Caudle and his father, who resides
in North Carolina where the package originated, asking him to
send "The Jersey Sting" by media mail. He
additionally considered that prison staff had conducted an
internet search for the name of the publisher with the return
address on the package, but no such publisher existed.
Id. Bittenbender considered Caudle's exculpatory
documentation, specifically a Wells Fargo Account Activity
Log listing an Amazon purchase of $27.69, but which contained
no descriptive information of the item purchased. The DHO
found that based upon the greater weight of evidence, Caudle
committed a lower level offense of a Code 331 violation, the
"Attempted Introduction of Non-Hazardous Contraband,
" for having a hard back book delivered into the
institution through his father when hardback books are only
allowed into the institution directly from publishers.
Id. In light of the reduced offense, Bittenbender
disallowed 13 days of GCT and credited Caudle back the 27
days that had been disallowed by the original DHO. All other
sanctions (disciplinary segregation time, loss of commissary
time, and the impounding of property) remained tine same.
Id. at 6, 22-25.
January 7, 2015, Bittenbender amendec the DHO report to
clarify the sanctions section to note that Caudle had already
served 60 cays of his disciplinary segregation sentence.
Id. at 7, 39-41. None of the DHO findings and
sanctions entered in the previous December 4, 2014 decision
were changed. Bittenbender affirms that to the best of his
recollection, Caudle was provided a copy of the amended
report. Id. at 7.
appealed his December 4, 2014 DHO rehearing decision to the
Regional and Central Office levels of the BOP. Both appeals
were denied. Id:, see also ECF No. 1-9. Caudle
subsequently filed this action. On June 2, 20" 7,
Respondent filed the now-pending ...