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Cipriano v. Federal Bureau of Prisons

United States District Court, D. Rhode Island

December 6, 2017



          WILLIAM E. SMITH, Chief Judge.

         On December 6, 2017, Magistrate Judge Patricia A. Sullivan filed a Report and Recommendation (“R&R”) (ECF No. 7) recommending that Norman Cipriano's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Petition”) (ECF No. 1) be denied. Having closely reviewed the R&R and the relevant papers, and having heard no objections, the Court ACCEPTS the R&R (ECF No. 7) and adopts its recommendations and reasoning. Accordingly, the Petition (ECF No. 1) is DENIED.

         IT IS SO ORDERED.

          PATRICIA A. SULLIVAN, United States Magistrate Judge.


         This matter is before the Court on the Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, brought by Petitioner Norman Cipriano (ECF No. 1). In 2014, Petitioner was sentenced by this Court to fifty months' imprisonment, followed by three years of supervised release. During 2015 and 2016, he was assigned to a Federal Correctional Institution (“FCI”) in Berlin, New Hampshire, where he was housed in a minimum security dormitory. Currently, Petitioner remains in the custody of Respondent Federal Bureau of Prisons (“BOP”), residing at the Houston House, a residential re-entry facility located in Rhode Island. The petition alleges that Petitioner was denied the due process required by the Fifth Amendment of the United States Constitution in connection with discipline imposed on him by BOP while he was at FCI Berlin, resulting in the loss of forty-one days' good conduct time.

         Having exhausted all available appeal rights, Petitioner initiated this action on August 6, 2017. His petition asks the Court to conduct an expeditious hearing, to expunge the Incident Report underlying the discipline from his record and to restore the lost good conduct time. In compliance with the Court's order, Respondent filed its reply to the petition on September 29, 2017. The petition and reply have been referred to me. Having thoroughly reviewed them, together with all of the attached written material, including the Incident Report and the Discipline Hearing Officer (“DHO”) Report, and mindful of the need to resolve the matter with all due speed, [1] I find that BOP's discipline procedures were consistent with the requirements of the Fifth Amendment's Due Process clause. Specifically, I find that:

(1) Petitioner received advance written notice of the violation that was adequate for due process purposes;
(2) Petitioner was afforded an opportunity to call witnesses and present evidence, but declined to do so; and
(3) Petitioner was provided a detailed and specific written statement describing the evidence considered and the reasons for imposing discipline.

         Further, I find that the DHO decision was supported by considerably more than the constitutionally-required “some evidence, ” even if evidence to which he claims he was denied access is disregarded. Based on these findings, I recommend that the petition be denied.

         I. BACKGROUND[2]

         On the evening of March 22, 2016, a woman called the FCI Berlin control center, and identified herself as Petitioner's wife, Jamie Cipriano. This female caller explained that she was in the midst of divorcing Petitioner, and complained that he was texting her and sending her photographs. She said he was texting her at the same time that she was speaking to the control center but then stopped while she was still on the line. She provided her own phone number, which corresponded to the number Petitioner had supplied to FCI Berlin as the contact for his wife, as well as the number from which the texts had been coming. See generally ECF No. 1-1 at 1-3.

         Within minutes, correctional officers were dispatched to search Petitioner and his bunk area. When they arrived, they told Petitioner that his “ex-wife” had called and said he was texting her; Petitioner denied he had an “ex-wife” and denied that he had a phone. The search resulted in the discovery of a cell phone hidden on the underside of the desk in the cubicle occupied by Petitioner and one other prisoner. Petitioner denied that the phone was his, and stated (falsely) that he had just moved to that area of the dormitory; his cellmate also denied ownership of the phone. The officers photographed and seized the phone. See generally ECF No. 1-1 at 1-3.

         BOP sent the phone to its forensic lab for analysis, and turned the matter over to the Office of the United States Attorney, Department of Justice (“DOJ”), for possible criminal prosecution. Pending the outcome of this referral, BOP's Incident Report was suspended. ECF No. 1-1 at 2. One month later, on April 21, 2016, the DOJ reported that it would not prosecute Petitioner. ECF No. 5-1 at 15-16. The next day, the BOP received the forensic lab report, which corroborated that the number of the cell phone was the same as that reported by the female caller. Meanwhile, BOP officials confirmed that Petitioner had lied when he said he had just moved to the cubicle where the phone was found; in fact, he had been there for several months. In addition, when questioned further, Petitioner admitted that he and his wife were in the midst of a divorce and that he believed she had called “to get him in trouble so she could win their divorce.” ECF No. 5-1 at 5.

         Based on these facts, on the next day (April 22, 2016), Petitioner was charged with Possession of a Hazardous Tool, in violation of Code 108 of the Prohibited Acts Code, 28 C.F.R. § 541.3, which classifies hazardous tools as those most likely to be used in an escape attempt. Petitioner was given a copy of the BOP Incident Report the same day, was advised of his right to remain silent and given an opportunity to make a statement. ECF No. 5-1 at 4-6. On April 27, 2016, Petitioner appeared before a Unit Discipline Committee where he stated that the cell phone was not his and he had been set up. ECF No. 5-1 at 4. The Committee determined that the charges were founded and referred the matter to hearing before a DHO. Also on April 27, 2017, Petitioner signed two forms confirming that he had been advised of his rights at the DHO hearing, including the right to have a staff representative, to call witnesses and to present documentary evidence. ECF No. 5-1 at 17-18. One form advised that, subject to institutional safety, if he identified any witnesses, the DHO would call them and, for any that were unavailable, DHO would try to procure written statements from them. Petitioner indicated he did not wish to call any witnesses and signed both forms. See ECF No. 5-1 at 17-18. The DHO hearing was held nine days later, on May 6, 2016.

         Both Petitioner and Respondent have presented the Court with copies of the detailed DHO Report (ECF No. 1-1; ECF No. 5-1) of the May 6, 2016, proceeding. The DHO Report confirms that Petitioner waived his right to be accompanied by a staff representative and did not request that any witnesses be called. In the introduction to the Report, the DHO explained that Petitioner did not receive the Incident Report within twenty-four hours “as established by policy”[3] because of the referral for possible prosecution. ECF No. 1-1 at 2. The DHO Report concludes that this delay did not cause “any undue hardship in your ability to defend yourself, ” pointing out that Petitioner did not raise “any procedural issue, request witnesses, or present written documentation as evidence.” Id.

         The summary of the evidence in the DHO Report indicates that Petitioner identified his wife as Jamie Cipriano and provided her phone number - the same number provided by the female caller, which was the same as the one on file with the BOP office. During the hearing, the DHO reviewed the officers' reports regarding the phone call from the female caller, as well as the photographs of the phone and reports about the search of the common area around Petitioner's bunk. The Report itemizes the evidence considered, including Petitioner's false statement about having just moved into the area and his misleading statement that he did not have an “ex-wife.” It indicates that the DHO and Petitioner both reviewed the report from the forensic lab, which corroborated the information from the female caller about the source of the texts. In response to viewing the forensic lab report, Petitioner is quoted in the DHO Report as saying, “Oh, I didn't know she contacted you recently, I thought it was a while ago.” The DHO Report specifically references Petitioner's description of the area where the phone was located as a “common area.”

         “[B]ased on the greater weight of evidence, ” the DHO found that Petitioner committed the prohibited act. ECF No. 5-1 at 3. Finding that the offense was of the “greatest” severity, the DHO imposed on Petitioner the sanctions of sixty days of disciplinary segregation, three months without commissary privileges, six months without phone privileges and the revocation of forty-one days of good conduct time. ECF No. 1-1 at 3.

         Petitioner appealed the adverse decision to the next administrative level, the Acting Regional Director. His appeal asserted that his wife had served him with divorce papers and was calling the prison to make false accusations. ECF No. 1-1 at 8. He also complained that he did not receive the Incident Report within twenty-four hours of the incident, and that he had not been shown the forensic lab report. Id. On June 22, 2016, the Acting Regional Director issued a written decision, denying the appeal and upholding the sanctions. ECF No. 1-1 at 10-11. Regarding the delayed Incident Report, the Acting Regional Director wrote:

Your contention your due process rights were violated because you did not receive a copy of the incident report within 24 hours is without merit. The record shows the incident report was suspended due to the incident report being referred to FBI/AUSA for criminal prosecution. You received a copy of the incident report within 24 hours of it being released for administrative processing. The DHO adequately ...

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