Scroggins v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher J. Scroggins
v. 	Case No. 	1:21-cv-870-JL
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Christopher J. Scroggins, a prisoner incarcerated at the
Federal Correctional Institution in Berlin, New Hampshire1 (“FCI
Berlin”), filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 (Doc. No. 1) challenging a Bureau of Prisons
(“BOP”) disciplinary decision. 	Before the court is the Warden’s
motion for summary judgment (Doc. No. 10) asserting that Mr.
Scroggins failed to properly exhaust BOP’s administrative
remedies and that, irrespective of exhaustion, Mr. Scroggins
received adequate due process. 	Mr. Scroggins objects (Doc. Nos.
12, 13). 	As explained below, the district judge should grant
the Warden’s motion because the undisputed facts demonstrate
that Mr. Scroggins failed to properly exhaust certain claims and
received adequate due process as to his remaining claims.
1 The incident and related disciplinary proceeding that are
the subjects of Mr. Scroggins’s petition occurred while he was
housed at the United States Penitentiary in Yazoo City,
Mississippi (“USP Yazoo City”) and prior to his arrival at FCI
Berlin.
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Summary Judgment Standard
“Summary judgment is appropriate when the moving party
shows that ‘there is no genuine dispute as to any material fact
and the mov[ing party] is entitled to judgment as a matter of
law.’” 	Baum-Holland v. Hilton El Con Mgmt., LLC, 964 F.3d 77,
87 (1st Cir. 2020) (quoting Fed. R. Civ. P. 56). 	“A genuine
dispute is ‘one that must be decided at trial because the
evidence, viewed in the light most flattering to the [party
opposing summary judgment], would permit a rational factfinder
to resolve the issue in favor of either party.’” 	Id. (quoting
Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990)). 	The party opposing summary judgment “must adduce
specific facts showing that a trier of fact could reasonably
find in his favor,” Johnson v. Johnson, 23 F.4th 136, 141 (1st
Cir. 2022) (internal quotation marks omitted) (quoting Brader v.
Biogen Inc., 983 F.3d 39, 53 (1st Cir. 2020)), and “cannot rely
on ‘conclusory allegations, improbable inferences, and
unsupported speculation’” id. (quoting Brader, 983 F.3d at 53;
Medina-Muñoz, 896 F.2d at 8).
When considering summary judgment motions, to “determin[e]
if a genuine dispute of material facts exists,” Taite v.
Bridgewater State Univ., Bd. of Trs., 999 F.3d 86, 93 (1st Cir.
2021), the court “‘look[s] to all of the record materials on
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file, including the pleadings, depositions, and affidavits’
without evaluating ‘the credibility of the witnesses or weighing
the evidence,’” id. (alterations omitted) (quoting Ahmed v.
Johnson, 752 F.3d 490, 495 (1st Cir. 2014)). 	When reviewing
these materials, the court “read[s] the facts in the light most
favorable to the [party opposing summary judgment] and grant[s]
all reasonable inferences in his favor.” 	Lachance v. Town of
Charlton, 990 F.3d 14, 20 (1st Cir. 2021).
Background
In his petition, see Pet. (Doc. No. 1), Mr. Scroggins
challenges a BOP Disciplinary Hearing Officer’s (“DHO”)
decision, finding him guilty of violating BOP Prohibited Acts
Code (“Code”) 203. 	28 C.F.R. § 541.3, tbl.1. 	Code 203
prohibits “[t]hreatening another with bodily harm or any other
offense.” 	28 C.F.R. § 541.3, tbl.1. 	The DHO’s decision
resulted in the disallowance of 27 days of Mr. Scroggins’s good
conduct time, seven days of disciplinary segregation, and a six-
month loss of commissary. 	Pet. (Doc. No. 1, at 10).
According to the incident report prepared by BOP Counselor
J. Boone, Mr. Scroggins’s disciplinary violation occurred on
January 27, 2021 when Ms. Boone warned Mr. Scroggins that he
would receive an incident report if he continued to hit an
emergency button for non-emergency reasons. 	BOP Incident
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Report, Jan. 27, 2021, Pet. Ex. A (Doc. No. 1-1, at 1). 	In
response, Mr. Scroggins stated: “[I do] not give a [f]uck about
an incident report.” 	Id. 	When Ms. Boone informed Mr. Scroggins
that the oncoming officer would be aware of this warning, Mr.
Scroggins told her that her attitude was going to “get [her] ass
whoop up in here” and further stated: “We will see. Watch.” 	Id.
The same day, January 27, 2021, a BOP staff member provided
Mr. Scroggins with a copy of the incident report charging him
with violating Code 203. 	See DHO Report, Mar. 2, 2021, Pet. Ex.
C (Doc. No. 1-1, at 3). 	On February 3, 2021, Mr. Scroggins was
advised of his rights with regard to the disciplinary proceeding
against him, and he appeared at the disciplinary hearing on
March 2, 2021. 	Id. 	During the hearing, Mr. Scroggins denied
the charge of violating Code 203 and represented to the DHO that
he was not the one who made the threatening statements. 	Id.
Mr. Scroggins’s staff representative also appeared during the
hearing. 	Id. 	She viewed the video footage and shared her
observations of Ms. Boone making rounds, approaching Mr.
Scroggins’s cell, turning off a prisoner duress alarm, speaking
to someone in the cell, and after turning away from the cell,
returning to speak to someone in the cell a second time before
walking away. 	Id. 	In addition, at Mr. Scroggins’s request, six
other prisoners, identified in the DHO Report by last name as
Scott, Seay, Burtley, Farris, Kelly, and Jones, provided written
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witness statements. 	Id. at 4. 	All of those witness statements
indicated that the witnesses either had no comment or did not
observe the incident. 	Id.
Ultimately, the DHO found, based on the greater weight of
the evidence, that Mr. Scroggins committed acts prohibited by
Code 203. 	Id. at 4-6. 	The DHO imposed several sanctions for
the violation including disallowance of 27 days of good conduct
time. 	Id. at 5. 	A BOP staff member delivered a copy of the DHO
Report to Mr. Scroggins on March 2, 2021. 	Id. at 6.
Mr. Scroggins filed a timely administrative appeal,
challenging the DHO’s decision and related sanctions. 	Reg’l
Admin. Remedy Appeal (hereinafter “Reg’l Appeal”), Ex. 2C to
Decl. of Christopher Grider (hereinafter “Grider Decl.”) (Doc.
No. 10-17, at 1-2). 	In his appeal, Mr. Scroggins claimed that
he did not make the threatening statements identified in the
incident report, and that the DHO failed to call Mr. Burtley as
a witness. 	Id. 	On March 31, 2021, the Regional Office rejected
the appeal on the basis that “required disciplinary procedures
were substantially followed, the evidence supports the DHO’s
finding, and the sanctions were appropriate for the offense.”
Reg’l Appeal Resp., Ex. 2C to Grider Decl. (Doc. No. 10-17, at
3).
On May 3, 2021, Mr. Scroggins appealed the decision of the
Regional Office. 	Cent. Off. Admin. Remedy Appeal (hereinafter
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“Cent. Off. Appeal”), Ex. 2D to Grider Decl. (Doc. No. 10-18, at
1). 	In this appeal, Mr. Scroggins principally argued that there
was no evidence that he made threatening statements in violation
of Code 203. 	Id. 	The Central Office rejected Mr. Scroggins’s
appeal and found that the DHO’s decision was supported by the
evidence and that the disciplinary process complied with Mr.
Scroggins’s due process rights. 	Cent. Off. Admin. Remedy Resp.,
Ex. 2D to Grider Decl. (Doc. No. 10-18, at 2). 	On November 4,
2021, Mr. Scroggins proceeded with his Section 2241 petition
seeking to expunge the Code 203 violation and related sanctions,
including reinstatement of the 27 days of disallowed good
conduct time. 	Pet. (Doc. No. 1, at 11).
Discussion
The Warden seeks summary judgment on the basis that Mr.
Scroggins failed to exhaust his administrative remedies as to
certain claims raised for the first time in his Section 2241
petition. 	The Warden also asserts that, even if the court were
to find that all of the claims raised in Mr. Scroggins’s
petition were properly exhausted, Mr. Scroggins received
adequate due process as a matter of law. 	In response, Mr.
Scroggins contends that he properly exhausted his administrative
remedies and that his due process rights were violated because:
(1) the DHO was biased against him due to a complaint Mr.
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Scroggins made alleging abuse by another BOP staff member; (2)
the DHO improperly excluded witness testimony during Mr.
Scroggins’s disciplinary proceeding and forged written witness
statements; (3) the DHO misrepresented the statement Mr.
Scroggins’s staff representative made at the hearing; (4) Mr.
Scroggins is actually innocent of the violation, and thus the
DHO lacked sufficient evidence to find him guilty; and (5) the
DHO decision improperly impacted Mr. Scroggins’s custody
classification.
I. 	Exhaustion of Administrative Remedies
“In general, a [Section] 2241 petitioner must exhaust
available administrative remedies before [he] can obtain relief
in federal court.” 	Shorter v. Warden, 803 F. App’x 332, 336
(11th Cir. 2020) (per curiam). 	This administrative exhaustion
requirement serves twin purposes: “promoting judicial
efficiency” and “protecting administrative agency authority.”
Anversa v. Partners Healthcare Sys., Inc., 835 F.3d 167, 175
(1st Cir. 2016) (quotation omitted). 	Proper exhaustion requires
prisoners to “provide enough information about the conduct of
which they complain to allow prison officials to take
appropriate responsive measures.” 	Beltran v. O’Mara, 405 F.
Supp. 2d 140, 151 (D.N.H. 2005) (quoting Johnson v. Testman, 380
F.3d 691, 697 (2d Cir. 2004)). 	This “notice pleading” standard
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affords the BOP “time and opportunity to address complaints
internally.” 	O’Mara v. Dionne, No. 08–cv–51–SM, 2009 U.S. Dist.
LEXIS 92817, at *11, 2009 WL 3244742, at *4 (D.N.H. Oct. 5,
2009) (quoting Testman, 380 F.3d at 697). 	In a Section 2241
action, the government bears the burden to raise and prove the
affirmative defense that the petitioner failed to exhaust his
administrative remedies. 	See Acosta v. Daniels, 589 F. App’x
870, 873 (10th Cir. 2014) (citing Jones v. Bock, 549 U.S. 199,
212 (2007)).
As to certain claims raised in his Section 2241 petition,
Mr. Scroggins failed to properly exhaust the administrative
remedies available to him. 	Specifically, in his administrative
appeals to the Regional and Central Offices, Mr. Scroggins never
mentioned, and thus never alerted either Office to claims of,
the DHO’s alleged bias against Mr. Scroggins, the DHO’s alleged
misrepresentation of the staff representative’s statement, or
the effect of the disciplinary decision on Mr. Scroggins’s
custody classification. 	Where the BOP was not afforded an
opportunity to address those claims internally, Mr. Scroggins
failed to exhaust his administrative remedies as to those
claims.2
2 Aside from a vague assertion that he lacked adequate
access to a law library (Doc. No. 12, ¶ 4), Mr. Scroggins does
not raise any exceptions to the issue of exhaustion, and based
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The BOP, however, received notice of Mr. Scroggins’s claims
regarding insufficient evidence to support the DHO’s decision
and missing witness statements. 	Mr. Scroggins expressly argued
in his administrative appeals that the DHO’s decision was
unsupported because Mr. Scroggins did not make the threatening
statements in question, and that his due process rights were
violated because Mr. Burtley was not called as a witness. 	Reg’l
Appeal (Doc. No. 10-17, at 1-2); Cent. Off. Appeal (Doc. No. 10-
18, at 1). 	Thus, the BOP was on notice of Mr. Scroggins’s
claims concerning insufficient evidence and missing witness
testimony. 	Accordingly, this court considers whether there is a
genuine dispute of material fact as to those issues, or whether
judgment may be granted to the Warden as a matter of law.3
II. 	Due Process for Disciplinary Proceedings
“[D]ue process requires procedural protections before a
prison inmate can be deprived of a protected liberty interest in
good time credits.” 	Superintendent v. Hill, 472 U.S. 445, 453
(1985) (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). 	For a
on the record before it, the court finds no basis to excuse
exhaustion sua sponte.
3 While the court appreciates the parties’ briefing of the
unexhausted claims, it declines to address the merits of any
claims not exhausted through the BOP administrative appeal
process.
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BOP disciplinary hearing, these due process procedural
protections include “written notice of the charges at least
twenty-four hours in advance of the hearing,” Surprenant v.
Rivas, 424 F.3d 5, 16 (1st Cir. 2005) (citing Wolff, 418 U.S. at
564); “the ability to call witnesses and present documentary
evidence,” id. (citing Wolff, 418 U.S. at 566); “an impartial
decisionmaker,” id. (citing Wolff, 418 U.S. at 570–71); and “a
written statement by the factfinder of the evidence relied on
and the reasons for the disciplinary action,” Hill, 472 U.S. at
454 (citing Wolff, 418 U.S. at 563–67).
When a DHO disallows good time credits as a penalty for a
disciplinary violation after a disciplinary hearing, due process
requires the support of that decision by “some evidence in the
record.” 	Id. 	The DHO’s decision satisfies this standard when
“any evidence in the record” exists “that could support the
conclusion reached . . . .” 	Id. at 455–56. 	“The evidentiary
requirement in reviewing prison disciplinary actions is met even
when the evidence ‘might be characterized as meager’; it simply
must not be ‘so devoid of evidence as to make the findings of
the institution without support or otherwise arbitrary.’” 	Brown
v. Kallis, No. 21-cv-920 (PJS/ECW), 2022 U.S. Dist. LEXIS 92674
at *27–28, 2022 WL 1652933 at *8 (D. Minn. Apr. 21, 2022)
(quoting Flowers v. Anderson, 661 F.3d 977, 980 (8th Cir. 2011)
(quoting Hill, 472 U.S. at 457))), R&R adopted, 2022 U.S. Dist.
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LEXIS 92665, at *1, 2022 WL 1645666, at *1 (D. Minn. May 24,
2022). 	“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.” 	Hill, 472 U.S. at 456.
III. Mr. Scroggins’s Due Process Claims
A. Sufficient Evidence
Mr. Scroggins asserts that he did not commit the Code 203
violation, and therefore, the DHO lacked sufficient evidence in
the record to find him guilty of the violation. 	To comport with
Mr. Scroggins’s due process rights, the DHO’s decision must have
been supported with a “written statement . . . of the evidence
relied on” in reaching that decision. 	See Hill, 472 U.S. at 454
(citing Wolff, 418 U.S. at 563–67). 	The “evidence relied on”
must amount to “some evidence,” id., a standard met by pointing
to “any evidence in the record” in “support [of] the conclusion
reached,” id. at 455–56. 	“Even when there is substantial
evidence to the contrary,” the DHO “may find [an incident]
report to be credible and therefore take disciplinary action.”
Brown, 2022 U.S. Dist. LEXIS 92674, at *28, 2022 WL 1652933 at
*8 (internal quotation marks omitted) (quoting Hrbek v. Nix, 12
F.3d 777, 781 (8th Cir. 1993)); see also Hill, 472 U.S. at 457
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(“The Federal Constitution does not require evidence that
logically precludes any conclusion but the one reached . . .”).
The DHO’s decision met this standard, and the issued
written report cites sufficient evidence upon which the DHO
could rely to support the conclusion that Mr. Scroggins violated
Code 203. 	In particular, the DHO found that Mr. Scroggins
threatened Ms. Boone in violation of Code 203 based upon Ms.
Boone’s statement in the incident report, the witness statements
provided by Mr. Scroggins’s witnesses, and the statement by Mr.
Scroggins’s staff representative. 	See DHO Report, Pet. Ex. C
(Doc. No. 1-1, at 4-5). 	Given Ms. Boone’s “experience in
monitoring and detecting inappropriate behavior in a prison
environment,” the DHO credited her statement that Mr. Scroggins
threatened her. 	Id. at 5. 	The DHO also cited video footage of
the incident and the staff representative’s statements
concerning the video footage, which corroborated an exchange
between Ms. Boone and someone in Mr. Scroggins’s cell. 	Id. 	In
addition, the DHO noted that Mr. Scroggins’s requested witnesses
all made statements indicating they had “no comment” or did not
observe the incident. 	Id. 	The DHO’s finding, therefore, relied
on “some evidence,” and thus did not violate Mr. Scroggins’s due
process rights.
Mr. Scroggins does not claim that the evidence relied upon
by the DHO was not actually entered at his disciplinary hearing,
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only that the evidence against him should not be credited.
Because the undisputed facts demonstrate that the DHO’s finding
was based on “some evidence” that Mr. Scroggins violated Code
203, the Warden has met his burden, and his motion for summary
judgment should be granted as to this claim.
B. Ability to Call Witnesses
The DHO accepted witness statements from several witnesses,
whose testimony was requested by Mr. Scroggins. 	See DHO Report,
Pet. Ex. C (Doc. No. 1-1, at 4). 	According to Mr. Scroggins,
however, the DHO failed to call one of the witnesses, Mr.
Burtley, in violation of Mr. Scroggins’s due process rights.
Prisoners do not have an “absolute right to call live witnesses
at a disciplinary hearing and prison officials have wide
discretion to refuse to call witnesses who are irrelevant,
unnecessary, or who pose a security concern.” 	Pizarro Calderon
v. Chavez, 327 F. Supp. 2d 131, 136 (D.R.I. 2004) (citing Wolff,
418 U.S. at 566). 	In addition, “a prisoner cannot maintain a
due process claim for failure to permit witness testimony if he
fails to show that the testimony would have affected the outcome
of his case.” Ned v. Tatum, No. 15-cv-178-LM, 2017 U.S. Dist.
LEXIS 139885, at *14, 2017 WL 3822736, at *5 (D.N.H. May 16,
2017) (quoting Brown v. Wyo. Dep't of Corr. State Penitentiary
Warden, 234 F. App’x 874, 879 (10th Cir. 2007)), R&R approved,
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2017 U.S. Dist. LEXIS 139426, at *1, 2017 WL 3772656, at *1
(D.N.H. Aug. 29, 2017).
The record demonstrates that the DHO obtained witness
statements from all of Mr. Scroggins’s requested witnesses,
including Mr. Burtley. 	While Mr. Scroggins claims that Mr.
Burtley’s written statement is forged,4 the court need not reach
the merits of that issue because Mr. Scroggins cannot show that
Mr. Burtley’s testimony would affect the outcome of his case.
Specifically, in his appeal, Mr. Scroggins states that Mr.
Burtley would testify that he had provided Ms. Boone with a copy
of Mr. Scroggins’s grievance form concerning Mr. Scroggins’s
medical treatment or condition. 	Reg’l Appeal (Doc. No. 10-17,
at 2). 	Mr. Scroggins claims only that Ms. Boone’s receipt of
this documentation from Mr. Burtley caused her to “target” Mr.
Scroggins. 	Id. 	Even if Mr. Burtley had testified to these
facts, such testimony would not have any bearing on whether Mr.
Scroggins made a threatening statement in violation of Code 203.
4 The BOP staff member who obtained the written statements
of Mr. Scroggins’s witnesses indicated that the names at the top
of the witness statements do not correspond to the witness
signatures due to an administrative error. 	Decl. of Sean Evans
(Doc. No. 10-2, ¶ 10). 	He confirmed, however, that the
signatures belonged to the requested witnesses, and identified
the signed statement of Mr. Burtley. 	Id. 	Because the substance
of the alleged missing testimony would have no bearing on the
DHO’s decision, the court makes no findings regarding the
authenticity of the witness statements.
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Therefore, assuming the DHO would have credited Mr. Burtley’s
testimony, that testimony would not have impacted the DHO’s
decision or demonstrated that there was insufficient evidence to
find Mr. Scroggins guilty of violating Code 203.
Accordingly, the undisputed facts in the record demonstrate
that none of the purported infringements on Mr. Scroggins’s due
process rights would, even if true, create a genuine issue of
material fact as to whether the DHO’s finding was based on some
evidence in the record. 	Where the Warden has met his burden to
demonstrate that Mr. Scroggins’s due process rights were upheld
in connection with the DHO’s finding him guilty of violating
Code 203, the Warden’s motion for summary judgment should be
granted.
Conclusion
For the foregoing reasons, the district judge should grant
the Warden’s motion for summary judgment (Doc. No. 10) and
direct the clerk to enter judgment and close the case. 	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 specific written objections to the
Report and Recommendation within the specified time waives the
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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
February 10, 2023
cc: 	Christopher J. Scroggins, pro se
Heather A. Cherniske, Esq., U.S. Attorney’s Office
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