Paige v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lamont E. Paige
v. Case No. 23-cv-353-SE-AJ
Warden, Federal Correctional
Institution, Berlin, New Hampshire
REPORT AND RECOMMENDATION
Lamont E. Paige, a federal prisoner in New York, filed this
petition under 28 U.S.C. § 2241 petition when he was at the
Federal Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”). The petition challenges a disciplinary proceeding in
2022 that resulted in Mr. Paige’s loss of good conduct time.
His petition asserts claims of Fifth Amendment due process
violations and First Amendment retaliation, and he seeks
expungement of his disciplinary record and restoration of good
conduct time credits.
Before the court is the Warden’s motion for summary
judgment (Doc. No. 4). Mr. Paige objects (Doc. No. 9).
Legal Standard
Under Federal Rule of Civil Procedure 56(a), the court
shall grant a motion for summary judgment when 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.” Id.
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“A genuine dispute is one that would permit a rational
factfinder to resolve the issue in favor of either party, and a
material fact is one that has the “potential to affect the
outcome of the suit under the applicable law.” Gattineri v.
Wynn MA, LLC, 63 F.4th 71, 84–85 (1st Cir. 2023) (internal
quotation marks omitted). The court draws all reasonable
inferences in favor of the nonmoving party from the properly
supported facts in the record. Lech v. von Goeler, 92 F.4th 56,
64 (1st Cir. 2024). Based on that view of the record, the court
must determine whether the moving party has shown that he is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Background
The following facts are undisputed except as otherwise
indicated. Mr. Paige’s petition challenges a disciplinary
proceeding at FCI Berlin that arose from phone calls he made to
family members on April 15, 2022 and April 16, 2022, following a
cell search involving FCI Berlin Corrections Officer (“CO”)
O’Sullivan. It is undisputed that Mr. Paige’s phone calls were
recorded and routinely monitored on a later date, May 1, 2022,
and that the officer who monitored those calls, CO Page, wrote
up the incident report on the day that he heard them.
On April 15, 2022, after the cell search, shortly before
the phone calls at issue, Mr. Paige sent emails to “AW
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Operations” and the Warden, reporting that CO O’Sullivan had
searched his cell while he was out of his cell at work, and that
CO O’Sullivan had thrown his belongings everywhere. He further
reported that FCI Berlin COs were disrespectful, and that Mr.
Paige and his family would report the incident. See Doc. No. 1-
1, at 5-6. Mr. Paige’s email to the Warden further complained
that CO O’Sullivan’s search was “retaliatory . . . for writing a
BP-8 on him.” Doc. No. 1-1, at 6. Shortly after sending those
emails, Mr. Paige called his sister and his wife, to complain
about what had happened. Mr. Paige made statements in those
calls about wanting to punch or hit CO O’Sullivan.
On May 1, 2022, CO Page listened to a recording of those
phone calls and heard Mr. Paige talk about CO O’Sullivan. CO
Page reported that Mr. Paige said repeatedly that CO O’Sullivan
made him so angry he was ready to hit him.1 CO Page wrote that
1 CO Page wrote the following:
On 5-1-2022, at 8:30 AM, I was monitoring inmate phone
calls and emails. I listened to a call placed from
the PAC of Inmate Paige . . . on 4-15-202 at 12:08 PM.
During the call, and in several calls, inmate Paige
begins discussing FCI Berlin Staff. In this
particular call, he references a specific staff
member, stating “This dude, O’Sullivan,” a reference
to Officer J. O’Sullivan. He discusses an interaction
with that staff member before immediately referencing
an ideation to commit bodily harm to that staff
member. He started by stating “They be acting so
tough, but they’re straight pussy, man.” He then
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Mr. Paige expressed the same anger and desire to assault FCI
Berlin staff in other calls on that day and on the next day.
Based on the content of Mr. Paige’s phone conversations, CO
Page wrote up an incident report on the day he listened to those
calls, charging Mr. Paige with violating Prohibited Act Codes
203 (threatening another with bodily harm), 312 (being insolent
to a staff member), and 404 (using abusive/obscene language).
On May 1, 2022, CO McCormack delivered that incident report to
Mr. Paige.
A disciplinary hearing was held on May 19, 2022. Mr. Paige
explained to the DHO that CO O’Sullivan searched his cell and
threw his materials everywhere, then left his cell a mess after
the search, and, when Mr. Paige confronted him about the
continues “That shit got me so heated, I had to walk
away.” He then specifically references striking the
Officer, stating, “I was ready to swing on them.” He
then continues the conversation, stating, “I’m ready
to swing on him cause he acting like a tough guy and I
know he ain’t.” He then verbalized that he continues
to feel those ideations, stating “That shit got me
heated.”
I continued monitoring calls before noting a pattern
of the inmate expressing a desire to cause bodily harm
to a staff member. Soon after the first call, the
inmate places a call on 4-15-2022 at 1:06 PM . . . .
He again references that staff member before stating a
desire to assault him, notably “Punch him in the
mouth.”
. . . .
Doc. No. 1-1, at 1.
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condition of his cell, CO O’Sullivan said he could do that. Mr.
Paige further explained that he was simply blowing off steam
while talking to his sister and his wife after that cell search.
The disciplinary hearing officer (“DHO”) considered Mr.
Paige’s explanation, CO Page’s incident report, and the recorded
calls. The DHO concluded that the incident report “correlated”
with the recorded calls,2 and the DHO found that Mr. Paige
committed each of the charged prohibited acts. The DHO
specifically found that the violations threatened prison safety
and security, and the DHO imposed sanctions that included the
loss of 27 days of good conduct time.
Mr. Paige appealed that decision. On January 17, 2023, the
BOP Central Office upheld the decision.
2 The DHO report describes the calls as follows:
Upon reviewing the calls, it was obvious in the beginning
of the conversation that inmate Paige was upset and venting
about a specific staff member. As the conversation
continues, inmate Paige expressed the desire to act upon
assaulting the staff member due to being frustrated.
Inmate Paige was informed that by stating those threatening
desires out loud, he was not only insolent, but became a
threat to staff safety. Whether or not he physically acted
upon those desires was not why the report was generated.
Inmate Paige was informed he must rein in how he vents,
because while having a heated discussion, he was not
controlling his thoughts on how he felt, but what he wanted
to do, such as, “Punch him in the mouth.” . . .
Doc. No. 4-3, at 4.
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Mr. Paige’s § 2241 petition focuses on the Code 203 and
Code 312 violations.3 He argues that the evidence was
insufficient to support his disciplinary conviction because he
made the statements to family members by telephone, and he never
directly threatened or was insolent to prison staff. He also
challenges the disciplinary proceedings on the bases that the
delivering officer’s name in the incident report was misspelled,
the incident report was not signed, and, he claims, FCI Berlin
COs took actions in retaliation for his administrative
complaints. Mr. Paige seeks expungement of his disciplinary
record and restoration of good conduct time. The Warden moves
for summary judgment on all of the claims.
Discussion
I. Due Process and Prison Disciplinary Proceedings
A. Due Process Standard
Prisoners have a protected liberty interest in their good
conduct time, which affords them certain due process safeguards
in disciplinary proceedings before they can be sanctioned with a
loss of good conduct time. See Sup’t, Mass. Corr. Inst. v.
Hill, 472 U.S. 445, 453-54 (1985). The minimum procedural due
3 Mr. Paige does not challenge to the Code 404 disciplinary
violation (using abusive or obscene language). Only the Code
203 violation resulted in the loss of good conduct time.
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process requirements are: written notice of the charge, the
ability to call witnesses and present documentary evidence (when
doing so is consistent with institutional safety and
correctional concerns), a hearing before an impartial
decisionmaker, and a written statement of the evidence relied on
and reasons for the DHO’s decision. See Surprenant v. Rivas,
424 F.3d 5, 16 (1st Cir. 2005); see also Wolff v. McDonnell, 418
U.S. 539, 564-66 (1974). In the prison disciplinary context, a
prisoner’s due process rights are met if the DHO’s finding is
supported by “some evidence in the record,” Hill, 472 U.S. at
454, which has “some basis in fact,” id. at 456, such that “the
record is not so devoid of evidence that the findings of the
[DHO] were without support or otherwise arbitrary,” id. at
457.
B. Sufficiency of the Evidence
Mr. Paige challenges the sufficiency of the evidence to
support the loss of good conduct time imposed for the Code 203
conviction, as well as the sufficiency of the evidence for the
Code 312 violation. Code 203 prohibits inmates from
“[t]hreatening another with bodily harm or any other offense.”
28 C.F.R. § 541.3, Table 1, Prohibited Acts and Available
Sanctions. Code 312 prohibits inmates from insolence toward a
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staff member. Id. Neither offense, as written, is limited to
threats or insolence directly uttered to a prison staff member.
Courts have interpreted threats of harm made by prisoners
in correspondence or communications to third parties, rather
than directly to a staff member, as violations of Code 203.
See, e.g., Nicolescu v. Bobby, No. 22-3253, 2023 WL 6620290, at
*3, 2023 U.S. App. LEXIS 26982, at *7-8 (7th Cir. Oct. 11, 2023)
(prisoner’s threats concerning a guard, made in Romanian in
speaking to his mother on phone, were evidence of violation of
Code 203), cert. denied, No. 23-7474, 2024 WL 3014586 (U.S. Jun.
17, 2024); Lane v. Salazar, 911 F.3d 942, 948-49 (9th Cir. 2018)
(indirect threats to harm prison guards made in a letter to BOP
Central Office violated Code 203); Borker v. Baltazar, No. CV-
14-0197, 2014 WL 5020602, at *3, 2014 U.S. Dist. LEXIS 142935,
at *8 (M.D. Pa. Oct. 8, 2014) (prisoner’s email to third parties
that prisoner would have sex with a staff member and then extort
money from her before reporting her was a violation of Code
203); cf. Jones v. Jones, No. 17-cv-70, 2018 WL 1525439, at *2,
2018 U.S. Dist. LEXIS 51083, at *4-5 (E.D. Tex. Mar. 27, 2018)
(threatening statements made by prisoner’s son, in telephone
conversation between prisoner and his son, were evidence of
prisoner’s violation of Code 203 (on aiding/abetting theory)).
Similarly, insolent statements or actions showing
disrespect for a prison staff member are violations of Code 312,
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whether they are delivered “directly or indirectly,” because
“[f]ederal prisons cannot function properly unless prisoners
show a proper respect for prison officials.” Jones v. Harcey,
No. CIV. 11-616 MJD/AJB, 2012 WL 2884920, at *9, 2012 U.S. Dist.
LEXIS 97506, at *27-28 (D. Minn. Feb. 9, 2012), R&R adopted,
2012 WL 2885114, 2012 U.S. Dist. LEXIS 97163 (D. Minn. July 13,
2012).
Mr. Paige does not dispute that he made the statements that
form the basis of the charges that resulted in his loss of good
conduct time. The recording of those statements, in the record
before the DHO, provide a sufficient basis for the findings that
Mr. Paige threatened an FCI Berlin CO and expressed insolence
towards an FCI Berlin staff member. Accordingly, the district
judge should grant the Warden’s motion for summary judgment on
Mr. Paige’s sufficiency of the evidence claims.
C. Spelling and Signatures
Mr. Paige challenges the validity of the disciplinary
proceeding on the ground that Officer “McCormick” delivered the
incident report to him but the name on the report is spelled
differently (“McCormack”), and neither the delivering officer
nor the reporting officer, CO Page, personally signed the
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report.4 With respect to the spelling of the officer’s name,
there is no due process right to receive disciplinary records
free of typos (assuming, without deciding, that the name at
issue was in fact misspelled). Moreover, nothing in the record
suggests that the spelling of that name caused any confusion
about who prepared or delivered the report, or any other
prejudice to the petitioner, affecting his rights under Wolff or
the outcome of the disciplinary proceeding.
With respect to the signatures, there is similarly no due
process right implicated, and no showing of prejudice. Mr.
Paige does not dispute that he received a copy of the incident
report before the hearing; he does not point to any other due
process violation under Wolff; and he fails to suggest any
grounds for finding that he suffered any prejudice in the
disciplinary proceedings relating to how the forms were prepared
and delivered. The petitioner’s claims about the signatures and
spelling are without merit. See Reyes-Rodriguez v. Warden, FCI
Beaumont, No. 22cv183, 2023 WL 8483930, at *3, 2023 U.S. Dist.
LEXIS 218915, at *8-9 (E.D. Tex. Oct. 30, 2023), R&R adopted,
4 The Warden notes that the signature lines on the form
include only a typed version of the names, as the COs signed
electronically, in accordance with the Government Paperwork
Elimination Act and the Discipline and Administration
Reintegration Tracking System. See generally United Spinal
Ass’n, Inc. v. O’Malley, No. 20-cv-2236, 2024 WL 3400259, at *1,
2024 U.S. Dist. LEXIS 121504, at *2 (D.D.C. July 11, 2024).
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2023 WL 8478004, 2023 U.S. Dist. LEXIS 217953 (E.D. Tex. Dec. 7,
2023). Accordingly, the district judge should grant the
Warden’s motion for summary judgment on Mr. Paige’s claims
relating to the spelling and signatures in the incident report.
II. Retaliation
A. Retaliatory Discipline Charge
Mr. Paige asserts a First Amendment claim challenging the
disciplinary charge, contending that CO Page wrote up the
incident report on May 1, 2022 in retaliation for Mr. Paige’s
administrative complaints on or about April 15, 2022. He seeks
expungement of the disciplinary record and restoration of lost
good time credits. The Warden moves for summary judgment,
maintaining that the retaliation claim lack merit and belongs in
a prisoner civil rights suit, not a § 2241 petition.5
5 This court expresses no opinion as to whether any of Mr.
Paige’s retaliation claims might be remedied in a prisoner civil
rights action or other administrative proceeding. Cf. Egbert v.
Boule, 596 U.S. 482, 499 (2022) (no implied cause of action for
damages is available against federal officers for claims of
First Amendment retaliation); cf. also 31 U.S.C. § 3723(a) (BOP
Director may “settle a claim for not more than $1,000 for damage
to, or loss of, privately owned property that . . . is caused by
the negligence of an officer or employee of the United States
Government acting within the scope of employment”).
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Assuming, without deciding, that Mr. Paige’s retaliatory
discipline claim can proceed in this § 2241 petition,6 this court
turns to its merits. To survive summary judgment on a First
Amendment retaliation claim, the prisoner must first adduce
facts sufficient to show that there is a causal link between his
First Amendment activity and any non-de minimis retaliatory
acts. Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). If
prison officials present a non-retaliatory reason for the
adverse consequences, summary judgment may be avoided if there
is also evidence that First Amendment retaliation was a
motivating factor. See Starr v. Dube, 334 F. App’x 341, 342
(1st Cir. 2009) (citing McDonald v. Hall, 610 F.2d 16, 18 (1st
Cir. 1979)); accord Turner v. Wall, No. 18-1869, 2020 WL
5543935, at *3, 2020 U.S. App. LEXIS 30047, at *9-10 (1st Cir.
May 5, 2020) (“to defeat summary judgment, [the prisoner] was
required to produce evidence sufficient to support a finding
that he would not have been transferred to Florida if he had not
filed this lawsuit”). This court must determine if the record,
viewed in a light most favorable to the prisoner as the non-
6Compare Lasko v. Holt, 334 F. App’x 474, 477 (3d Cir. 2009)
(retaliation claim “is proper in the habeas context if, for
example, a petitioner’s success will necessarily imply the
invalidity” of his loss of good conduct time); with Martin v.
Galipeau, 801 F. App’x 444, 446 (7th Cir. 2020) (“A § 2254
petition to recover lost good-time credit is not the way to
bring a claim that a prison official retaliated against an
inmate for the protected activity of filing a grievance.”),
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moving party, “contains a genuine dispute of material fact as to
whether [the prisoner] was punished for engaging in protected
conduct apart from the legitimate misconduct” that was charged.
See Watson v. Rozum, 834 F.3d 417, 424 (3d Cir. 2016).
The petitioner here offers no direct evidence of any
retaliatory motive. Rather, he points to the timing of events,
namely, his complaints about the cell search to a supervising
officer in front of CO Page and other officers, followed by his
submission of BP-8s to the Warden, Assistant Warden and other
prison officials, which he says led them to see the condition of
his cell. Then, approximately two weeks later, on May 1, 2022,
CO Page wrote up the incident report.
The Warden has presented a non-retaliatory explanation for
the timing of the incident report and the disciplinary
consequences. It is undisputed that prisoner phone calls are
routinely recorded and monitored, and that CO Page was
monitoring previously-recorded prisoner calls on May 1, 2022
when he heard the calls at issue. Consistent with BOP
regulations, CO Page wrote up an incident report based on what
he heard, which was delivered to Mr. Paige on May 1, 2022. See
28 C.F.R. § 541.5(a) (“The 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
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charged with committing.”); BOP Program Statement (“PS”)
5270.09, CN-1 (Nov. 18, 2020), “Inmate Discipline Program,” at
18 (staff “must” prepare incident report upon witnessing or
reasonably believing violation has occurred).7
Where it is undisputed that the petitioner made the
statements at issue, that those statements were heard in the
course of routine monitoring which happened to occur after Mr.
Paige complained to prison officials, and the DHO, after a
hearing, reasonably concluded upon the record before him that
Mr. Paige’s statements violated the pertinent disciplinary
codes, there is an absence of any genuine issue as to whether
Mr. Paige would have received the same incident report and
disciplinary consequences, regardless of CO Page’s motivation.
Cf. Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) (“the
conclusion that the state action would have been taken in the
absence of improper motives is readily drawn in the context of
prison administration where we have been cautioned to recognize
that prison officials have broad administrative and
discretionary authority over the institutions they manage”
(internal quotation marks and citations omitted)). Accordingly,
7 See BOP, Policy & Forms, BOP Policies, PS 5270.09, CN-1,
available at https://www.bop.gov/PublicInfo/execute/policysearch
(last visited Aug. 17, 2024).
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the district judge should grant the Warden’s motion for summary
judgment on the retaliatory discipline claim.8
B. Remaining Retaliation Claims
Mr. Paige further asserts that, on April 15, 2022, he
submitted administrative complaints regarding FCI Berlin COs,
and that CO O’Sullivan left his cell in disarray after the
search, and the officers lost or destroyed belongings he values
at over $200.00. He argues that the sequence of events shows
that the COs took actions in retaliation for his administrative
8 This recommendation is consistent with -- but not
dependent on -- the application of the so-called “checkmate”
doctrine, applied in retaliatory discipline cases in other
jurisdictions, where courts conclude that if there is some
evidence to support the DHO’s decision, and no due process
violation has occurred, judgment for prison officials is granted
as a matter of law. See, e.g., Williams v. Radford, 64 F.4th
1185, 1195 (11th Cir. 2023) (“if an inmate is ‘found guilty of
an actual disciplinary infraction after being afforded due
process,’ and ‘there was evidence to support the disciplinary
panel’s fact finding,’ he cannot assert a retaliation claim”
(citation omitted)); accord Requena v. Roberts, 893 F.3d 1195,
1211 (10th Cir. 2018); Henderson v. Baird, 29 F.3d 464, 469 (8th
Cir. 1994) (if prison disciplinary committee’s finding of
violation of prison rules is based on some evidence, that
“finding essentially checkmates [a] retaliation claim”)); see
also Martin v. Galipeau, 801 F. App’x 444, 446 (7th Cir. 2020)
(“The due process protections set forth in Wolff . . . shield
prisoners from arbitrary actions.”). But see Maben v. Thelen,
887 F.3d 252, 262 (6th Cir. 2018) (rejecting “checkmate”
doctrine, concluding that “[a] finding of guilt at a prison
misconduct hearing does not act as an absolute bar to a
prisoner’s First Amendment retaliation claim”).
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complaints. The Warden seeks summary judgment on these
retaliation claims upon the ground that they lack merit and are
not justiciable in a federal habeas petition.
“It is bedrock law that ‘requested relief’ must ‘redress
the alleged injury.’” Babb v. Wilkie, 589 U.S. 399, 413 (2020)
(citation omitted). Section 2241 gives this court jurisdiction
over habeas petitions asserting that a person is in detention in
violation of his federal rights. A claim that is not properly
remedied by an order affecting the fact or duration of a
person’s detention or the execution of his sentence is not
within the “core of habeas.” Jupiter v. Warden, USP Lewisburg,
237 F. App’x 726, 728 (3d Cir. 2007) (per curiam) (relief under
§ 2241 was unavailable on petitioner’s “access to the courts
claim,” which had “no bearing on the lawfulness of his
incarceration,” and “ultimate success on the merits of the claim
[would not] result in [petitioner’s] speedier release from
prison”).
The relief the petitioner has requested in his prayer for
relief in his § 2241 petition does not control the question of
whether his retaliation claims are appropriately litigated in a
§ 2241 petition. “While release from prison is a typical form
of relief in a habeas action, the mere assertion of [a claim for
release], when there is no corresponding factual basis for
release, does not convert a conditions of confinement case,
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which ordinarily seeks damages, into a habeas action.” Bell v.
United States, Civil Action No. 08-cv-00335-WDM-KLM, 2009 WL
1609396, at *3 n.2, 2009 U.S. Dist. LEXIS 130604, at *7 n.2 (D.
Colo. May 19, 2009), R&R adopted, 2009 WL 1609396, 2009 U.S.
Dist. LEXIS 48157 (D. Colo. June 9, 2009).
Here, the alleged unlawful cell search and property loss
claims concern the conditions of Mr. Paige’s past confinement at
FCI Berlin, and not the fact, duration, or conditions of his
current detention. The incidents took place at a prison where
the petitioner is no longer incarcerated. The claim does not
challenge his sentence calculations, the disciplinary
proceedings that resulted in a loss of good conduct time, Mr.
Paige’s continued incarceration in a federal prison, or any
ongoing exposure to a condition of confinement that is alleged
to violate the petitioner’s federal constitutional rights at
this time. Cf. Gomes v. U.S. Dep’t of Homeland Sec., Civil No.
20-cv-453-LM, 2020 DNH 102, 2020 WL 3258627, at *2-3, 2020 U.S.
Dist. LEXIS 104844, at *5-9 (D.N.H. Jun. 16, 2020) (court had
jurisdiction under § 2241 to consider claims for release to
community-based alternatives, asserted by detainees claiming
substantial health risks violating their due process rights, due
to exposure to COVID-19 in detention facility). The
petitioner’s retaliation claims relating to the cell search and
loss of property at FCI Berlin are not redressable by the relief
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he seeks (expungement of his disciplinary record and restoration
of good conduct time credits), or other relief available here.
Those claims are thus not properly adjudicated here. See
Rosario v. FCI Berlin Warden, No. 22-cv-175-JL, 2024 WL 3580953,
at *3, 2024 U.S. Dist. LEXIS 135977, at *9 (D.N.H. Mar. 15,
2024) (retaliatory cell search claim that does not challenge
either execution or duration of prisoner’s sentence is not
cognizable in § 2241 petition). Accordingly, the district judge
should grant the Warden’s motion for summary judgment and
dismiss those retaliation claims without ruling on their merits.
Conclusion
For the foregoing reasons, the district court judge should
grant the Warden’s motion for summary judgment (Doc. No. 4).
Then, the clerk’s office should 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. Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
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any objections 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
August 19, 2024
cc: Lamont Paige, pro se.
Raphael Katz, Esq.
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