Myton v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Rasene Myton
v. Civil No. 22-cv-72-SM
FCI Berlin, Warden
REPORT AND RECOMMENDATION
Petitioner Rasene Myton, who is incarcerated at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”), has filed a petition for a writ of habeas corpus under
28 U.S.C. § 2241 (Doc. No. 1). He challenges the decision of a
federal Bureau of Prisons (“BOP”) disciplinary hearing officer
(“DHO”), finding Mr. Myton guilty of a BOP disciplinary
infraction and imposing the loss of good conduct time as a
sanction. Pet. Attach. (Doc. No. 1-1 at 1). Mr. Myton alleges
that the disciplinary proceedings violated his Fifth Amendment
due process rights. See id.; see also Pet. (Doc. No. 1 at 3
¶ 6(c), 7 ¶ 13, 8 ¶ 15).
The court conducts a preliminary review to determine
whether the petition is facially valid and may proceed. See
Rule 4 of the Rules Governing Section 2254 Cases (hereinafter
“§ 2254 Rules”); § 2254 Rule 1(b) (applying § 2254 Rules to
§ 2241 petitions); LR 4.3(d)(4)(A). “Federal courts are
authorized to dismiss summarily any habeas petition that appears
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legally insufficient on its face.” McFarland v. Scott, 512 U.S.
849, 856 (1994). Because Mr. Myton proceeds pro se, the court
construes his pleadings liberally. See Foley v. Wells Fargo
Bank, N.A., 772 F.3d 63, 75–76 (1st Cir. 2014) (citing Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
I. Background
On December 20, 2019, a BOP staff member searched Mr.
Myton’s cell, which he occupied alone, and found within “a black
cellphone inside the top pocket” of a prisoner uniform shirt.
Incident Report, Dec. 21, 2019, Pet. Ex. A (Doc. No. 1-3 at 1
¶ 11). The staff member filed an “Incident Report” on December
21, 2019 regarding the search and cellphone. Id. at ¶ 13.
According to Mr. Myton, the BOP officer who investigated
the incident, Lt. D. Hensley, initially provided Mr. Myton with
a copy of the Incident Report on December 21, 2019. See BOP
Reg’l Admin. Remedy Appeal, Feb. 12, 2020, Pet. Ex. B.
(hereinafter “Reg’l Appeal”) (Doc. No. 1-3 at 2); DHO Report,
Jan. 29, 2020, Pet. Ex. D (Doc. No. 1-3 at 9 ¶ V). Mr. Myton
alleges that Lt. Hensley asked Mr. Myton to return the report so
Lt. Hensley could refer the matter to an Assistant U.S. Attorney
(“AUSA”) for possible criminal prosecution. Pet. Attach. (Doc.
No. 1-1 at 2). On January 14, 2020, the AUSA declined the case
because Lt. Hensley had already questioned Mr. Myton. See id.;
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DHO Report (Doc. No. 1-3 at 9 ¶ V). On that date, after the
AUSA declined to prosecute, the Incident Report was “released
for administrative sanctions,” and BOP staff again provided Mr.
Myton with a copy of the Incident Report. DHO Report (Doc. No.
1-3 at 8 ¶ I(A), 9 ¶ V).
The Unit Disciplinary Committee (“UDC”) at FCI Berlin
considered the matter on January 15, 2020. See Incident Report
(Doc. No. 1-3 at 1 ¶ 21). Given the severity of the charged
infraction, the UDC referred the matter to the DHO for
disciplinary proceedings. Id. at ¶¶ 18(B), 19. On January 28,
2020, the DHO conducted a disciplinary hearing on the charge
levied against Mr. Myton. See DHO Report (Doc. No. 1-3 at 8
¶ I(B)). After the hearing, the DHO found, “based on the
greater weight of evidence,” that Mr. Myton committed the
disciplinary offense charged. Id. at 9 ¶ V. As a penalty for
committing that offense, the DHO disallowed forty-one days of
Mr. Myton’s good conduct time and revoked his commissary
privileges for one year. Id. at ¶ VI.
Mr. Myton subsequently filed administrative appeals
unsuccessfully challenging the DHO’s decision and resulting
sanctions. See Reg’l Appeal Resp., Apr. 20, 2020, Pet. Ex. B
(Doc. No. 1-3 at 3) (denied); Cent. Off. Admin. Remedy Appeal
Resp., Pet. Ex. C (Doc. No. 1-3 at 6) (denied). He now seeks
relief in this court, asking for expungement of the Incident
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Report and reinstatement of the forty-one days of disallowed
good conduct time. Pet. (Doc. No. 1 at 8 ¶ 15); Pet. Attach.
(Doc. No. 1-1 at 3).
II. Discussion
A. 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
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).
After a hearing, when a DHO disallows good time credits as
a penalty for a disciplinary violation, 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
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the record” exists “that could support the conclusion reached
. . . .” Id. at 455–56.
B. Mr. Myton’s Due Process Claim
Mr. Myton’s sole claim in his § 2241 petition is that BOP
staff violated his Fifth Amendment due process rights when they
failed to adhere to internal BOP policy — specifically, Program
Statement (“PS”) 5270.09 and 28 C.F.R. § 541.5(b)(2) — by
improperly releasing the Incident Report concerning Mr. Myton’s
possession of a cellphone to prosecutorial authorities for
possible criminal prosecution after interviewing Mr. Myton and
providing him with a copy of the Incident Report. Pet. (Doc.
No. 1 at 7 ¶ 13); Pet. Attach. (Doc. No. 1-1 at 1–3). Mr. Myton
does not allege that he was denied any of the aforementioned due
process protections to which he is entitled under Hill, Wolff,
and Surprenant, and the record before the court demonstrates
that the disciplinary hearing before the DHO provided him those
protections. Mr. Myton also does not allege that the DHO based
the post-hearing findings on insufficient evidence.
In making his due process argument, Mr. Myton alleges that
the BOP staff failed to comply with PS 5270.09. See Pet. (Doc.
No. 1 at 7 ¶ 13); Pet. Attach. (Doc. No. 1-1 at 1–3). That
internal BOP policy states, in pertinent part:
When it appears likely that the incident may involve
criminal prosecution, the investigating officer suspends
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the investigation. Staff may not question the inmate
until the FBI or other investigative agency releases the
incident report for administrative processing. The
incident report should then be delivered to the inmate
by the end of the next business day. The time frame for
processing the Incident report is suspended until it is
released for processing.
PS 5270.09; accord § 541.5(b). The relevant BOP regulation, 28
C.F.R. § 541.5, provides that
[t]he discipline process starts when staff witness or
reasonably believe that you committed a prohibited act.
A staff member will issue you an incident report
describing the incident and the prohibited act(s) you
are charged with committing. You will ordinarily
receive the incident report within 24 hours of staff
becoming aware of your involvement in the incident.
§ 541.5(a). That regulation further indicates that, “[a]fter [a
prisoner] receive[s] an incident report, a [BOP] staff member
will investigate it,” id. § 541.5(b), though “the staff
investigation . . . may be suspended before requesting [a
prisoner’s] statement if it is being investigated for possible
criminal prosecution,” id. § 541.5(b)(2).
Mr. Myton is correct in alleging that the BOP failed to
adhere to its own regulations and policies, which provide that,
where BOP staff are referring an incident report out of the BOP
for possible criminal prosecution, “[s]taff may not question the
inmate until” the matter is referred back to the BOP for
processing as a disciplinary incident. See PS 5270.09; see also
§ 541.5(b). The “technical violation” of a BOP regulation,
however, “‘is not actionable’ without some showing of prejudice”
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occasioned by that violation. Marshall v. Ortiz, Civ. Action
No. 19-19557 (KMW), 2022 WL 671511 at *4, 2022 U.S. Dist. LEXIS
40055 at *9 (D.N.J. Mar. 7, 2022) (quoting Wallace v. Fed. Det.
Ctr., 528 F. App’x 160, 162-63 (3d Cir. 2013)) (discussing
§ 541.5(a)); see also Brown v. Rectenwald, No. 1:CV-12-1135,
2013 WL 228704 at *4, 2013 U.S. Dist. LEXIS 20169 at *15 (M.D.
Pa. Jan. 22, 2013) (concluding that BOP staff did not violate a
prisoner’s due process rights when staff first investigated
disciplinary charges and then referred the charges to the FBI
for prosecution eight days later), aff’d on other grounds, 550
F. App’x 96, 98 (3d Cir. 2013).
Mr. Myton has not asserted any facts to demonstrate that
the referral for possible prosecution, after BOP staff
questioning, prejudiced him in any way in the disciplinary
proceedings that he challenges here. Accordingly, the district
judge should dismiss Mr. Myton’s § 2241 petition as it fails to
allege an actionable violation of his due process rights and,
therefore, does not state a valid claim for relief. Cf. § 2254
Rule 4; LR 4.3(d)(4)(A)(i).
III. Conclusion
For the foregoing reasons, the district judge should deny
the § 2241 petition and direct the clerk to close this case and
enter judgment. Any objections to this Report and
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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 right to
appeal the district court’s order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016). “Only those issues
fairly raised by the objections to” this Report and
Recommendation “are subject to review in the district court and
those not preserved by such objection are precluded on appeal.”
Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 27, 2022
cc: Rasene Myton, pro se
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