Fraga v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Alex Fraga
v. Civil No. 22-cv-555-JL-AJ
Warden, FCI Berlin
Report and Recommendation
Alex Fraga, who is incarcerated at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”), and is
proceeding pro se, brings a petition for a writ of habeas corpus
under 28 U.S.C. § 2241, challenging prison disciplinary
proceedings that resulted in the loss of 41 days of good conduct
time credits. He alleges that the prison did not follow federal
Bureau of Prisons (“BOP”) regulations in the process of
collecting and preserving a urine sample from him, which, he
asserts, was an abuse of discretion. The respondent, the FCI
Berlin Warden, moves to dismiss. See Doc. No. 5. The motion to
dismiss has been referred to the undersigned for a report and
recommendation as to disposition. See LR 72.1.
Motion to Dismiss Standard
The court may dismiss a complaint if the plaintiff’s
allegations, taken as true, do not state a claim for relief.
Fed. R. Civ. P. 12(b)(6). To avoid dismissal, the plaintiff
must allege facts that, if taken as true and with all reasonable
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inferences drawn in the plaintiff’s favor, state a plausible
claim for relief. Burt v. Bd. of Trs. of Univ. Of R.I., 84
F.4th 42, 50 (1st Cir. 2023). In addition to the complaint, the
court may consider matters of public record and documents on
which the allegations in the complaint depend in considering a
motion to dismiss. Id.
Background
In April 2022, FCI Berlin officials required Mr. Fraga and
other prisoners to provide a urine sample for testing.
Pharmatech Laboratories tested the sample and determined that it
was positive for marijuana. Prison security staff checked with
the health services department at the prison and determined that
Mr. Fraga had not been prescribed any medication that would
cause his urine sample to test positive for marijuana.
Mr. Fraga was charged with a disciplinary infraction
alleging that his positive urine test violated BOP Prohibited
Act Code 112 - Use of Drugs/Alcohol. A Disciplinary Hearing
Officer (“DHO”) conducted a hearing on the charge and found that
Mr. Fraga had committed the offense charged. As a penalty, Mr.
Fraga lost 41 days of good conduct time credit. Mr. Fraga
appealed that decision, and the decision was upheld.
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Discussion
Mr. Fraga alleges that the procedures prison staff used to
collect his urine sample violated BOP Program Statement
(“PS”)_6060.08, which applies to urine analysis for narcotics.
He argues that because of those alleged violations the sample
should have been discarded. He seeks an order directing the BOP
to restore his good conduct time credit.
The Warden moves to dismiss on the ground that violation of
a BOP Program Statement is not by itself grounds to support a
petition under § 2241. The Warden also contends that Mr. Fraga
has not shown any violation of his due process rights. In
response, Mr. Fraga argues that his petition should be construed
to allege a due process violation based on an incorrect test
result, and that his petition should be granted on that basis.
A. Liberty Interest in Good Conduct Time
Prisoners have a protected liberty interest in their good
conduct time which affords prisoners certain due process
protection in disciplinary proceedings. See Sup’t, Mass. Corr.
Inst., Walpole v. Hill, 472 U.S. 445, 453 (1985). Specifically,
prisoners have due process rights to: written notice of the
charges against them at least 24 hours before the disciplinary
hearing on those charges, the opportunity to call witnesses and
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present documentary evidence (when doing so is not unduly
hazardous to prison safety and institutional goals), a hearing
before an impartial decisionmaker, and a written statement as to
the evidence the DHO relied on and the reasons for the DHO’s
decision. See Wolff v. McDonnell, 418 U.S. 539, 563-71 (1974);
Surprenant v. Rivas, 424 F.3d 5, 16 (1st Cir. 2005); Ali v.
Warden, Fed. Corr. Inst., Berlin, N.H., Case No. 18-cv-896-JL,
2020 U.S. Dist. LEXIS 48237, at *6-*7, 2020 WL 1322542, at *3
(D.N.H. Mar. 20, 2020). In addition, a hearing officer’s
decision that imposes a penalty disallowing good conduct time
credit must be supported by “some evidence in the record.”
Hill, 472 U.S. at 454. The “some evidence” requirement is
satisfied if “there is any evidence in the record that could
support the conclusion reached by the disciplinary [officer].”
Id. at 455-56.
B. Violation of PS 6060.08
Mr. Fraga alleges that several parts of the process used to
collect his urine sample violated PS 6060.08. He made the same
or similar arguments at the disciplinary hearing. The DHO heard
his procedural challenges but found, based on the greater weight
of the evidence, including the existence of a valid urine
sample, that Mr. Fraga violated Prohibited Act Code 112.
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Among other evidence, the DHO relied on a staff member’s
written account of the incident and another staff member’s
memorandum that provided details about the sampling process.
Evidence before the DHO also indicated that Mr. Fraga provided
his signature after the sample was sealed in front of him. A
staff member represented that the sample was secured in an
office that is under constant supervision, and that the
requirements of PS 6060.08 were met. The record before the
Court amply demonstrates that there was “some evidence” before
the DHO upon which that officer could rely in determining the
validity of Mr. Fraga’s positive urine test.
In addition, to the extent Mr. Fraga argues that his
disciplinary finding and sanction was unwarranted based on
alleged violations of PS 6060.08, he has failed to state a claim
warranting relief. “‘A habeas claim cannot be sustained based
solely on the BOP’s purported violation of its own program
statement because noncompliance with a BOP program statement is
not a violation of federal law.’” Johnson v. Warden, FCI
Berlin, Civil No. 20-cv-920-JD, 2021 U.S. Dist. LEXIS, at *6,
2021 WL 723258, at *3 (D.N.H. Feb. 24, 2021) (quoting Reeb v.
Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011)).
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C. Due Process and Reliability of Test Results
Mr. Fraga argues, in his opposition to the Warden’s motion
to dismiss, that his petition should be construed to allege a
due process violation based on alleged problems in the
processing of the sample which he asserts should call into
question the reliability and validity of the DHO’s determination
that his urine sample was positive for marijuana in violation of
Prohibited Act Code 112. The DHO, however, considered Mr.
Fraga’s challenges to the process used to collect the sample and
the record evidence pertaining to the collection process, and
still concluded that the test results supported the finding that
Fraga committed the charged offense. Mr. Fraga offers nothing
to support his assertion that the test results were incorrect,
or that the record evidence was insufficient to support the
DHO’s conclusions. Accordingly, Mr. Fraga has not alleged facts
that show a due process violation based on incorrect or
unreliable test results.
Conclusion
For the foregoing reasons, the district judge should grant
the Warden’s motion to dismiss (Doc. No. 5). Any objections to
this Report and Recommendation must be filed within 14 days of
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receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The 14-
day objection period may be extended upon motion.
Only those issues raised in a written 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
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).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
January 18, 2024
cc: Alex Fraga, pro se
Seth Aframe, AUSA.
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