Yoda v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mashud Yoda
v. Case No. 21-cv-1035-SE
Opinion No. 2022 DNH 132
Warden, FCI Berlin
O R D E R
Mashud Yoda, proceeding pro se, filed a petition under 28
U.S.C. § 2241, challenging disciplinary proceedings that
resulted in his loss of good time credits and other sanctions.
The warden moves for summary judgment on Yoda’s claims. Doc. no.
9. Yoda did not file a response to the motion for summary
judgment.
Standard of Review
Summary judgment is appropriate “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.” Fed. R. Civ.
P. 56(a). A material fact is one that “carries with it the
potential to affect the outcome of the suit.” French v. Merrill,
15 F.4th 116, 123 (1st Cir. 2021) (quotation omitted). A
material fact is in genuine dispute if “a reasonable jury could
resolve the point in the favor of the non-moving party.” Id. The
court construes the record in the light most favorable to the
nonmoving party. Benson v. Wal-Mart Stores East, L.P., 14 F.4th
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13, 17 (1st Cir. 2021). In considering a motion for summary
judgment, the court may review materials cited in the motion and
other materials in the record. Fed. R. Civ. P. 56(c)(1)(3).
Background
Yoda is a prisoner at the Federal Correctional Institution
in Berlin, New Hampshire. On November 8, 2020, a Bureau of
Prisons (“BOP”) officer found a photograph that had been posted
on Instagram several days earlier. It featured Yoda’s cellmate
posing in their cell. The following day, the BOP searched
Instagram and found an account identified as “papaola” that
appeared to belong to Yoda. The account’s postings included a
photograph of Yoda in his cell that had been posted on
approximately November 6, 2020.
The Special Investigative Service Department (“SIS”) began
an investigation to determine whether Yoda had violated BOP
rules. As part of the investigation, Yoda and his cellmate were
moved to the special housing unit so that officers could
photograph their cell, which was shown in the photographs found
on Instagram.
Based on the results of the investigation, an SIS officer
filed an incident report (No. 3454246) on December 1, 2020. The
incident report charged Yoda with unauthorized contact with the
public in violation of Offense Code 327 and conduct that
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disrupts or interferes with the security or orderly running of
the institution by possessing a hazardous tool, a cellphone, in
violation of Offense Code 199. The incident report listed the
incident date as November 9, 2020.
On December 30, 2020, several days before Yoda’s hearing in
front of a Disciplinary Hearing Officer (“DHO”), the BOP revised
Yoda’s incident report. Specifically, the revised report changed
the date of the incident from November 9, 2020, to November 5,
2020. The BOP made the change to show the date on which the
photograph was posted to Instagram rather than the date on which
the BOP discovered the photograph. In addition, the revised
report included additional details about Yoda’s conduct. It
compared Yoda’s appearance in the Instagram post to his
appearance when he was placed in the special housing unit and
compared the specific identifiers of Yoda’s cell in the SIS
photographs to those in the cell featured in the Instagram post.
The revised report concluded that the photographs were taken
within a few days of each other. Yoda received a copy of the
rewritten report on December 30, 2020, and prison officials
advised him of his rights.
The DHO held a hearing on Incident Report No. 3454246 on
January 5, 2021. Yoda denied the charges, asserting that he did
not take the photograph or post it on Instagram in November. He
stated that the Instagram photograph was not taken recently and
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was instead taken with an old cellphone that prison officials
had found in his cell back in March 2020.1 Yoda also stated that
neither his hairstyle nor the details of his cell had changed
since March. He requested a forensic examination of the
cellphone the BOP had confiscated in March 2020. The DHO granted
Yoda’s request.
The DHO reconvened the hearing on February 4, 2021, after
receiving the forensic analysis. The DHO informed Yoda that the
forensic report indicated that no photographs were found on the
old cellphone. Yoda continued to argue that the photograph was
taken with the old cellphone.
The DHO found that Yoda had committed the prohibited acts
charged: unauthorized contact with the public and conduct that
disrupts or interferes with the security or orderly running of
the institution by possessing a hazardous tool, a cellphone, in
violation of Offense Codes 327 and 199. That decision was based
on the SIS officer’s written report of the incident, a
supporting memorandum submitted by the officer who assisted in
the investigation, the Instagram post, the SIS photographs taken
of Yoda’s cell, Yoda’s statements, the forensic report, and
1 In March 2020, the BOP charged Yoda with possession of a
hazardous tool, a cellphone. The BOP dropped the charge against
Yoda when his cellmate took responsibility for the phone and
said Yoda was not involved. The incident report against Yoda for
that offense was expunged.
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other evidence. The DHO imposed sanctions of the loss of 41 days
of good conduct time, loss of visiting privileges for a year,
and loss of email privileges for two months.
Yoda appealed the DHO’s decision in accordance with the
BOP’s administrative appeals process. His appeals were denied.
Yoda then filed his petition in this court. He alleges that
his due process rights were violated when the date of the
incident in the report was changed from November 9, 2020, to
November 5, 2020, and because the DHO’s decision is against the
weight of the evidence. On preliminary review, the court found
that Yoda’s petition challenged the DHO’s finding based on
alleged violations of his Fifth Amendment due process rights.
Discussion
The warden moves for summary judgment on the grounds that
the procedures used in Yoda’s disciplinary proceeding did not
violate Yoda’s due process rights and that the DHO’s decision
was based on the required amount of evidence. As is noted above,
Yoda did not respond to the motion.
“Prison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in
such proceedings does not apply.” Wolff v. McDonnell, 418 U.S.
539, 556 (1974). The court assumes without deciding that
prisoners retain a liberty interest in good conduct time (“GCT”)
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and that 28 U.S.C. § 2241 remains a proper vehicle by which to
challenge disciplinary proceedings resulting in the loss of GCT.
See, e.g., Francis v. Maloney, 798 F.3d 33, 36-37 (1st Cir.
2015) (discussing how Pepper v. United States, 562 U.S. 476, 501
n.14 (2011) may call into question whether a prisoner can bring
a habeas claim for relief associated with lost GCT because
Pepper states in dicta that GCT “does not affect the length of a
court-imposed sentence; rather, it is an administrative reward”
to incentivize compliance with prison disciplinary regulations);
cf. Wolff, 418 U.S. at 557 (concluding prisoners have a liberty
interest in GCT because there is a statutory right to “a
shortened prison sentence through the accumulation of credits
for good behavior”).
Proceeding under that assumption, if a prison disciplinary
hearing may result in the loss of GCT, a prisoner is entitled
to: (1) written notice of the disciplinary charges at least 24
hours in advance of the hearing; (2) an opportunity, when
consistent with institutional safety and correctional goals, to
call witnesses and present documentary evidence in his defense;
(3) an impartial factfinder; and (4) a written statement by the
factfinder of the evidence relied upon and the reasons for the
disciplinary action. Id. at 563-67. Further, due process
requires that the disciplinary decision to revoke GCT be
supported by “some evidence.” See Superintendent, Massachusetts
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Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 455-56 (1985)
(explaining the “some-evidence” inquiry requires the court to
determine “whether there is any evidence in the record that
could support the [DHO’s] conclusion”).
I. Change in Date of Incident
Yoda alleges in his petition that changing the date of the
incident in the revised incident report from November 9, 2020,
to November 5, 2020, caused two due process violations. First,
he claims that the change interfered with his ability to prepare
a defense. Second, he alleges that the revised report violated a
BOP regulation that requires that the BOP provide prisoners with
a copy of an incident report within 24 hours after the incident.2
A. Opportunity to Prepare a Defense
As Yoda acknowledges in his petition, he cannot establish a
due process violation without showing that the claimed violation
prejudiced him. See Pittman v. Fox, 766 F. App’x 705, 716 (10th
Cir. 2019) (no due process violation in a prison disciplinary
proceeding absent prejudice); Gross v. Warden, USP Canaan, 720
F. App’x 94, 96 (3d Cir. 2017) (same). Thus, when a prisoner
2 In his petition, Yoda cites 28 C.F.R. § 541.5(a) as the
pertinent regulation. The BOP also has an internal policy,
Program Statement 5270.09, that addresses the same issue, and
the warden refers to the Program Statement when addressing the
24-hour requirement.
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claims a due process violation based on the amendment of an
incident report, he must show that the outcome of the hearing
was affected by the amendment. See Colon v. Tellez, No. 20-CV-
5252 (AMD), 2022 WL 521524, at *5 (E.D.N.Y. Feb. 22, 2022).
Yoda argues that the change in the date prejudiced his
ability to provide a statement in his defense, because he
prepared his statement in response to the first incident report.
The record, however, does not support his claim.
Yoda’s defense in his statement was that he did not do the
actions that were charged. He stated that he did not possess or
use a cellphone and that no cellphone was found in his cell
during the November search. He also stated that the posted
photograph was old, was taken with the cellphone found in March,
and was posted by his friends who control his Instagram account.
Nothing in Yoda’s statement relies on the incident date of
November 9, and, therefore, the record does not show that he was
prejudiced by the amendment of the date in the incident report.
Further, a prison official provided Yoda with a copy of the
amended incident report on December 30, 2020. The DHO held the
hearing on January 5, 2021. Yoda does not contend that he lacked
time to amend his statement in response to the change of the
incident date. The DHO considered Yoda’s statement, and in
response ordered a forensic examination of the cellphone found
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in Yoda’s cell in March. Contrary to Yoda’s defense, no
photographs were found on that cellphone.
Therefore, the record does not support Yoda’s due process
claim that the change of the incident date prejudiced his
defense.
B. Violation of BOP Regulation
Yoda also alleges that his due process rights were violated
because BOP officials did not provide him with the incident
report within 24 hours of becoming aware of the incident. It is
true that a BOP regulation provides that a prisoner “will
ordinarily receive the incident report within 24 hours of staff
becoming aware of [the prisoner’s] involvement in the incident.”
28 C.F.R. § 541.5(a). “Courts have consistently held, however,
that this regulation, by its terms is not mandatory, and, in any
event, does not create an enforceable right.” Roberts v. Warden,
FCI Berlin, No. 20-CV-618-SE, 2022 WL 1205515, at *4 (D.N.H.
Mar. 23, 2022), report and recommendation approved, No. 20-CV-
618-SE, 2022 WL 1205205 (D.N.H. Apr. 22, 2022) (quotation
omitted); see Millhouse v. Warden Lewisburg USP, 785 F. App’x
931, 934 (3d Cir. 2019); Brennan v. United States, 646 F. App’x
662, 667 (10th Cir. 2016); Jacques v. Bureau of Prisons, 632 F.
App’x 225, 225-26 (5th Cir. 2016).
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In terms of timing in the context of prison disciplinary
proceedings, due process only requires “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). It is undisputed that Yoda received the
initial incident report on December 1, 2020, and the revised
report on December 30, 2020, both of which are more than 24
hours prior to the January 5, 2021 hearing.
Therefore, the warden is entitled to summary judgment on
Yoda’s due process claim based on the amended incident report.
II. Sufficiency of the Evidence
The DHO’s written decision in Yoda’s case, issued on
February 4, 2021, was supported by “some evidence” as required
by due process. Doc. no. 9-4. In the decision, the DHO described
the evidence upon which she relied. Id. That evidence included
the report of the SIS investigation into the Instagram
photograph which concluded that Yoda used a cellphone to take
the photograph that was posted on Instagram, the written account
submitted by the officer who found Yoda’s photograph on
Instagram, the photograph posted on Instagram showing Yoda in
his cell, Yoda’s statement, and the forensics report on the
cellphone found in March. The extensive evidence upon which the
DHO relied was more than sufficient to support the decision that
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Yoda committed prohibited acts in violation of Offense Codes 327
and 199.
Therefore, the warden is entitled to summary judgment on
Yoda’s claim that the evidence was not sufficient to support the
DHO’s decision.
Conclusion
For the foregoing reasons, the warden’s motion for summary
judgment (document no. 9) is granted. The petition is dismissed.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________
Samantha D. Elliott
United States District Judge
October 21, 2022
cc: Mashud Yoda, pro se.
Seth R. Aframe, AUSA.
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