Krieg v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Eric Krieg
v. 	Case No. 22-cv-276-JL
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Eric Krieg, a federal prisoner at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”) who is
representing himself in this matter, has filed a 28 U.S.C. §
2241 petition challenging a disciplinary proceeding that
resulted in a loss of good time credits. 	The petition is before
the undersigned Magistrate Judge for preliminary review. See 28
U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254 Cases
(“§ 2254 Rules”); LR 4.3(d)(4)(A); see also § 2254 Rules, Rule
1(b) (§ 2254 Rules may apply to § 2241 petitions).
Preliminary Review Standard
Pursuant to § 2254 Rule 4, a federal judge must screen
habeas petitions and, if “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition.” 	28 U.S.C. § 2243; see also McFarland v. Scott, 512
U.S. 849, 856 (1994) (courts “are authorized to dismiss
summarily any habeas petition that appears legally insufficient
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on its face”). 	In conducting its § 2254 Rule 4 review, the
court construes pro se filings liberally. 	See Dutil v. Murphy,
550 F.3d 154, 158 (1st Cir. 2008).
Background
In his petition, Mr. Krieg alleges that he was improperly
found to have committed a disciplinary offense for “threatening
another with bodily harm,” in violation of Bureau of Prisons
(“BOP”) Prohibited Acts Code (“Code”) 203, and that he was
improperly sanctioned for that disciplinary offense with a loss
of twenty-seven days of good conduct time. 	Mr. Krieg seeks
expungement of that disciplinary finding and restoration of his
disallowed good conduct time.
With his petition, Mr. Krieg filed a copy of the Incident
Report for the incident underlying the disciplinary charge at
issue in this case. 	See Doc. No. 1, at 5. 	In the Incident
Report, the reporting officer, T. Grenier, stated that, on
December 30, 2021, when Mr. Krieg was pat-searched after leaving
the FCI Berlin food service area, Mr. Krieg said: “‘You didn’t
search me good enough.’” 	Id. at 8. 	As a result, Officer
Grenier and Officer G. Perrault placed Mr. Krieg in a holding
cell on suspicion of possession of contraband.
The Incident Report states that Officers Grenier and
Perrault later went into the holding cell to release Mr. Krieg
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to his housing unit. 	See id. 	As they entered the holding cell,
Mr. Krieg was seated on a bench. 	See id. 	When Officer Grenier
told Mr. Krieg to go back to his housing unit, Mr. Krieg stood
up “in an aggressive manner, took a fighting stance, and balled
his fists in a manner which presented a threat to [the
officers’] safety . . . and stated: “What else do you want from
me[?]” 	Id. 	The officers then placed Mr. Krieg in hand
restraints and escorted him to the Special Housing Unit. 	See
id.
Mr. Krieg was charged with a disciplinary offense for
allegedly violating Code 203 by threatening the officers with
bodily harm. 	A hearing was held on that charge on January 25,
2022, before a disciplinary hearing officer (“DHO”). 	At the
hearing, Mr. Krieg denied taking a fighting stance or balling
his fists. 	The DHO’s report states that the DHO considered the
following statements Mr. Krieg made at the DHO hearing:
“I did not take a fighting stance. 	What I actually
said was why don’t you teach Officer Grenier how to
pat search somebody without feeling him up. 	They took
everything from my third locker and I said ‘what else
do you want from me,’ meaning you took everything,
what else do you want from me. 	I did not make any
threatening statements,” to the investigating
official.
. . .
“It’s all bull crap. 	It all comes from retaliating
because he felt me up. 	It’s on camera in time
square,” . . ..
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“Grenier felt me up when he pat searched me. 	This is
the second time he did it. 	That narrative makes no
sense. Why would I square up? 	What does that even
mean? 	Square up. 	If he told me to go back to my
housing unit, why would I do anything? It doesn’t make
any sense.”
DHO Report (Doc. No. 1, at 8).
The DHO found that “the greater weight of the evidence”
supported the Code 203 charge levied against Mr. Krieg, and that
Mr. Krieg had committed that offense. 	Id. 	In making that
decision, the DHO relied on: Officer Grenier’s Incident Report,
Officer Perrault’s memorandum about the incident, which
supported Officer Grenier’s account; Mr. Krieg’s statements to
the Unit Disciplinary Committee and at the DHO hearing; “video
footage of the pat search,” in which the actual pat search of
Mr. Krieg could not be observed due to the location where it
occurred; and Mr. Krieg’s disciplinary history, which included a
prior disciplinary offense for violation of Code 203. 	Id.
On appeal, the BOP National Inmate Appeals Administrator
found that the DHO’s decision was based on the evidence before
the DHO, as detailed in the DHO Report, and that “the
determination of the DHO is reasonable and supported by the
evidence.” 	Doc. No. 1, at 10. 	The National Appeals
administrator also found that Mr. Krieg’s “Due Process rights
were upheld during the disciplinary process,” and that the
sanctions imposed “were commensurate to the severity level of
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the offense committed and in compliance with policy.” 	Id. 	Mr.
Krieg’s appeal, therefore, was denied.
Discussion
I. 	Legal Standard
Because prisoners have a protected liberty interest in good
conduct time, due process requires that prisoners are provided
certain procedural protections before good conduct time may be
taken away or disallowed as a sanction for a disciplinary
violation. 	See Sup’t, Mass. Corr. Inst., Walpole v. Hill, 472
U.S. 445, 453 (1985). 	For that reason, a decision to disallow
good conduct time must be based on “some evidence in the
record.” 	Id. at 454. 	The record evidence is sufficient if
there is enough evidence to support the decision, even if that
evidence is “meager.” 	Id. at 455-56.
II. 	Analysis
Mr. Krieg contends that that the DHO’s decision that he
violated Code 203 during the December 2021 incident must be
overturned, and his good conduct time restored, because the
record lacks any evidence that he made a threat. 	That is, Mr.
Krieg interprets Code 203 to require a verbal threat, and argues
that his statements to the officers during the incident
underlying that disciplinary charge did not include a threat.
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Code 203 is a “High Severity Level Prohibited Act” that
prohibits inmates from “[t]hreatening another with bodily harm
or any other offense.” 	28 C.F.R. § 541.3. 	On its face, Code
203 is not limited to verbal threats. 	Further, threatening
conduct similar to Mr. Krieg’s fighting stance and statement to
the officers has supported disciplinary findings of violations
of Code 203. 	See, e.g., David v. DeRosa, 176 F. App’x 258, 259-
60 (3d Cir. 2006) (upholding finding that prisoner raising his
voice and fists constituted violation of Code 203); Royal v.
Ortiz, Civ. No. 20-12345(RMB), 2021 U.S. Dist. LEXIS 113062, at
*11, 2021 WL 2457574, at *4 (D.N.J. June 16, 2021) (clenching
fist and moving toward officer “in an aggressive and threatening
manner while asking [officer] why he was smirking” found
“sufficient to constitute” Code 203 violation); Tyson v.
Mackleburg, Civil Action No. 4:19-2818-RMG, 2019 U.S. Dist.
LEXIS 230614, at *13, *15, 2020 WL 4607392, at *4 (D.S.C. Apr.
14, 2020) (DHO finding, after viewing video of prisoner turning
in staff member’s direction, stepping close to staff member, and
“walk[ing] around the staff member in a circle face to face in
which the officer felt threaten (sic) to her safety,” that
prisoner’s behavior was “very hostile” and “aggressive”
sufficient to meet “some evidence” standard set forth in Hill,
472 U.S. at 455), R&R adopted, 2020 U.S. Dist. LEXIS 78906, at
*1, *5, 2020 WL 2124527, at *1-*2 (D.S.C. May 5, 2020). But see
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Williams v. Bradley, Case No. 2:17-cv-01715-AKK-SGC, 2020 U.S.
Dist. LEXIS 222588, at *2, 2020 WL 7040563, at *1 (N.D. Ala.
Nov. 5, 2020) (upholding decision of DHO who found accusing
officer’s report credible, but insufficient to support a Code
203 violation, when officer stated that during a cell search,
prisoner took an aggressive posture, stepped toward the officer
with a clenched fist, refused repeated orders to leave the cell,
and swore at officer in hostile tone after repeated orders to do
so), R&R adopted by 2020 U.S. Dist. LEXIS 222399, at *1, 2020 WL
7033950, at *1 (N.D. Ala. Nov. 30, 2020).
The reports provided by Officers Grenier and Perrault
provided evidence that Mr. Krieg balled his fists, took a
fighting stance, and asked them, “What else do you want from
me?” when the officers entered the holding cell. 	Although Mr.
Krieg denied that he took those actions, and states that his
question was not threatening, he does not dispute that the
described physical conduct, if credited as true, could
constitute a threat of bodily harm to the officers. 	The DHO’s
decision was thus based on “some evidence” that Mr. Krieg
threatened Officers Grenier and Perrault with bodily harm, which
is sufficient to support the DHO’s determination that Mr. Krieg
violated Code 203, and the DHO’s decision to disallow good
conduct time as a sanction for that offense. 	Accordingly, the
DHO’s findings and sanction did not violate Mr. Krieg’s due
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process rights, and the district judge should dismiss Mr.
Krieg’s § 2241 petition on that basis.
Conclusion
For the foregoing reasons, the District Judge should
dismiss Mr. Krieg’s § 2241 petition and direct the Clerk of
Court 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 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
July 31, 2023
cc: Eric Krieg, pro se
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