Stegemann v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Joshua G. Stegemann
v. 	Case No. 17-cv-397-SM
Warden, FCI-Berlin
REPORT AND RECOMMENDATION
Joshua Stegemann, a federal prisoner housed at the Federal
Correctional Institution in Berlin, New Hampshire, has
petitioned this court for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. 	See Doc. No. 1. 	The petition challenges a
decision of the Bureau of Prisons (“BOP”) to rescind twenty-
seven days of Stegemann’s good-time credits, pursuant to a
January 20, 2017, disciplinary offense. 	Respondent has moved to
dismiss, or, in the alternative, for summary judgment. 	See Doc.
No. 15). 	Respondent’s motion has been referred to the
magistrate judge for a report and recommendation. 	See LR 72.1.
For the reasons that follow, it is recommended that the
respondent’s motion should be granted.
Legal Standard
At the summary-judgment1 stage, the court “view[s] the facts
in the light most favorable to the non-moving party” and
“draw[s] all reasonable inferences in the nonmovant’s favor . .
1Stegemann has included affidavits with his objection to the
respondent’s motion. Accordingly, the court treats the motion as
one for summary judgment. See Fed. R. Civ. P. 12(d).
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. .” 	Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d 307, 312
(1st Cir. 2016) (citation and quotation marks omitted). 	The
court may only grant summary judgment if the moving party “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” 	Fed. R.
Civ. P. 56(a). 	The moving party has the initial burden of
“identify[ing] for the district court the portions of the record
that show the absence of any genuine issue of material fact.”
Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016).
If the movant does so, “the burden shifts to the nonmoving
party, who must, with respect to each issue on which [s]he would
bear the burden of proof at trial, demonstrate that a trier of
fact could reasonably resolve that issue in [her] favor.” 	Id.
(citation omitted). 	As petitioner is proceeding pro se, the
court construes his pleadings liberally. 	See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Background
In January 2017, Stegemann was charged with a prison
disciplinary violation for engaging in or encouraging a group
demonstration. 	The charge was related to a disturbance that
took place after Stegemann returned from a recreation period and
became upset at the condition of his cell, after prison
officials conducted a shakedown in his – and the other
prisoners’ – absence. 	After a hearing, a disciplinary hearing
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officer (“DHO”) found that Stegemann violated the group
demonstration rule and penalized him by, inter alia, stripping
him of twenty-seven days of good-time credit. 	After exhausting
his administrative appeals, Stegemann petitioned this court for
expungement of the disciplinary report and restoration of the
rescinded good-time credit, arguing that the disciplinary
finding was not supported by the evidence presented at the
hearing.
Discussion
A prison DHO’s decision that results in the loss of good-
time credit must be supported by “some evidence in the record.”
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454
(1985). 	“Ascertaining whether this standard is satisfied does
not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of the
evidence.” 	Id. at 456. 	The ultimate question for a reviewing
court “is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board.” 	Id.
at 455. 	This evidentiary standard may be met by indirect
evidence. 	Ned v. Tatum, No. 15-cv-178-LM, 2017 WL 3822736, at
*6, 2017 U.S. Dist. Lexis 139885 (D.N.H. May 16, 2017), R & R
approved by 2017 WL 3772656, 2017 U.S. Dis. Lexis 139426 (D.N.H.
Aug. 29, 2017) (citation omitted)). 	The standard may also be
met by “evidence . . . [that] might be characterized as meager.”
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Id. (quoting Hill, 472 U.S. at 457). 	“All that is necessary is
that ‘the record is not so devoid of evidence that the findings
of the disciplinary board were without support or otherwise
arbitrary.’” 	Ned, 2017 WL 3822736, at *6, 2017 U.S. Dist. Lexis
139885 (quoting Hill, 472 U.S. at 457).
The evidence described in the DHO’s report, a document
Stegemann attached to his petition, is sufficient to support the
DHO’s conclusion that Stegemann committed the prohibited act of
engaging in or encouraging a group demonstration. 	The hearing
officer referred specifically to a written report from a prison
staff member which contained the following description of
events:
On January 20, 2017 at approximately 11:35 am, I was
monitoring unit A3 as they returned from recreation.
Unit A3 inmates returned to their cells and an unknown
inmate started yelling [“G]et me a BP-8; I want a BP-
8.[“] 	Due to this inmate's actions other inmates
began yelling for BP-8's also known as an informal
resolution. 	The inmate now known as [Stegemann]
slammed his cell door and proceeded down the stairs
towards the officer's station. 	A large grouping of
inmates proceeded behind him in an aggressive nature
and stopped near the counselor's office. Inmate
Stegemann led the inmates in shouting for BP-8's and
inciting them to refuse staff orders to return to
their cells. Inmates were given direct orders to
return to their cells and the grouping of
approximately 50 - 60 inmates stated "fuck that give
me a BP-8 and then I'll return to my cell." Due to
inmate Stegemann inciting the other inmates a staff
assistance call was made and the unit was locked in
their cells for safety of staff and the institution.
Doc. No. 1, 7. 	Stegemann does not contest this factual
narrative, but focuses instead on his lack of intent to incite.
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This argument ignores that “engaging in” a group demonstration
is also prohibited. 	Moreover, as the hearing officer noted
after viewing a video recording of the incident, “You are
displayed as stating something to the staff members in a very
animated manor [sic]. 	Due to your actions, other inmates moved
up to the staff members and it was apparent they were engaging
in the same activity and or discussion joining you.” 	(Id. at
8).
That evidence is sufficient to satisfy the “some evidence”
standard, in that there was some evidence before the DHO
supporting the DHO’s decision. 	Because Stegemann has failed to
provide evidence to counter the existence of “some evidence”
supporting that decision, he has failed to meet his burden on
summary judgment to demonstrate the presence of a genuine
dispute of material fact. 	The district judge should, therefore,
grant respondent’s motion for summary judgment (Doc. No. 15) and
direct that judgment should be entered in respondent’s favor.
Conclusion
For the reasons stated herein, the district judge should
grant respondent’s motion to dismiss or for summary judgment
(Doc. No. 15), close this case, and direct entry of judgment in
this matter. 	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 objection period
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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).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 23, 2019
cc: 	Joshua G. Stegemann, pro se
Seth R. Aframe, AUSA
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