Denny v. Schultz

• Citation: 708 F.3d 140
• Decision Date: 15 February 2013
• Docket Number: No. 11–1450.,11–1450.
• Parties: Travis DENNY, Appellant v. Warden Paul SCHULTZ; James Waterfield.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

708 F.3d 140

Travis DENNY, Appellant

v.Warden Paul SCHULTZ; James Waterfield.

No. 11–1450.

United States Court of Appeals, Third Circuit.

Argued: Sept. 19, 2012.

Filed: Feb. 15, 2013.

Syed A. Huda (Law Student) [Argued], Stuart T. Steinberg, Sarah L. Wyatt, Dechert LLP, Philadelphia, PA, for Appellant.

Paul A. Blaine [Argued], Office of United States Attorney, Camden, NJ, James B. Clark, III, Office of United States Attorney, Newark, NJ, for Appellees.

Before: SLOVITER, RENDELL, and HARDIMAN, Circuit Judges.

OPINION

SLOVITER, Circuit Judge.

Appellant Travis Denny, who was an inmate at the Federal Correctional Institution (“FCI”) at Fairton, New Jersey, challenges the Disciplinary Hearing Officer's (“DHO”) findings upheld by the District Court. The DHO found that Denny possessed weapons in violation of a prison regulation and sanctioned him with the forfeiture of forty days of good time credit and imposition of sixty days in disciplinary segregation. During a search, prison officials discovered homemade weapons hidden in Denny's cell. Based solely on the presence of the weapons in his two-inmate cell, Denny was sanctioned as set forth above. He subsequently submitted a petition for a writ of habeas corpus to the District Court pursuant to 28 U.S.C. § 2241 arguing, inter alia, that prison officials violated his Fourteenth Amendment due process rights by requiring him to forfeit the good time credits. The District Court sua sponte dismissed the petition, and Denny appealed.

I. Background

The factual record in this appeal was not fully developed because the District Court acted sua sponte in dismissing the case pursuant to 28 U.S.C. § 2243 before the BOP had entered its appearance and before any discovery had taken place. Accordingly, the record before this court is limited to the materials submitted by Denny with his habeas petition.

Denny shared his cell with one other inmate. During a routine search of the cell in March 2009, a corrections officer found a six and one-half inch long pointed weapon in the duct work of the vent above the sink between Denny's cell and an adjacent cell. “The shank appeared to be made out of fencing that had been straightened, it had a black electrical tape grip, a piece of white shoelace for a lanyard and a length of dental floss tied on to the lanyard.” App. at 42. Upon further inspection of the vent, the officer “noticed a false bottom in the duct made out of covers from file folders that had been cut and taped together to fit the length and width of the duct between [Denny's cell and the adjacent cell].” Id. When the false bottom was removed, the officer found another sharpened weapon similar to the first one. The second weapon was seven inches long and was made out of fencing with a grip made out of electrical tape and a black shoelace lanyard attached.¹

Federal Bureau of Prisons (“BOP”) Program Statement 5270.07, Inmate Discipline and Special Housing Units, provides that it is an inmate's responsibility to keep his or her area free of contraband. See28 C.F.R. § 541.12 (2008). Relying upon that Program Statement, the DHO of FCI Fairton found that Denny had committed the prohibited act of “Possession of a Weapon,” in violation of BOP Code 104.²App. at 44. The DHO sanctioned Denny with sixty days in disciplinary segregation and the forfeiture of forty days good time credit.³ According to Denny, both he and his cellmate were charged with possession of a weapon, but the inmates in the adjacent cell, whom he posits may have had access to the weapons, were not charged.

Denny appealed first to the BOP Regional Director and next to the National Inmate Appeals Administrator, both of whom denied the appeals. The National Inmate Appeals Administrator wrote that “the greater weight of the evidence supports the decision, and the sanctions imposed were appropriate for the offense and in compliance with policy.” Id. at 46.

Denny then filed a pro se petition for writ of habeas corpus. The District Court sua sponte dismissed the petition, stating that “it is clear that the findings of the [DHO] are supported by ‘some evidence,’ including the fact that the contraband weapons were found in the duct work of Petitioner's assigned cell.” Id. at 10. Denny appealed to this court. After he filed a pro se opening brief, this court appointed pro bono counsel to represent him. Counsel subsequently filed opening and reply briefs on Denny's behalf.⁴

II. Analysis

The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 2241, and this court has appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). This court reviews a district court's denial of federal habeas relief de novo but reviews its factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007).

Denny presents one claim: that the DHO's disallowance of good time credits violates his due process rights under the Fourteenth Amendment. ⁵ Federal prisoners serving a term of imprisonment of more than one year have a statutory right to receive credit toward their sentence for good conduct. See18 U.S.C. § 3624(b); 28 C.F.R. § 523.20 (2008). When such a statutorily created right exists, “a prisoner has a constitutionally protected liberty interest in good time credit.” Young v. Kann, 926 F.2d 1396, 1399 (3d Cir.1991) (citing Wolff v. McDonnell, 418 U.S. 539, 556–57, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)).

In evaluating prisoners' due process rights, the court must be sensitive to the “intricate balancing of prison management concerns with prisoners' liberty.” Sandin v. Conner, 515 U.S. 472, 478, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). “Mindful that internal security is a chief concern in prisons, the [Supreme] Court recognized that it would be impossible to prevent the introduction of weapons, drugs and other contraband into the premises if prisoners maintained a right of privacy in their cells.” Doe v. Delie, 257 F.3d 309, 316 (3d Cir.2001) (citing Hudson v. Palmer, 468 U.S. 517, 527, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). “In order to further the safe, secure, and orderly running of its institutions,” the BOP has specifically authorized “searches of inmates and of inmate housing and work areas to locate contraband and to deter its introduction and movement.” 28 C.F.R. § 552.10 (2008).

Notwithstanding the prison's interest in ensuring safety and security, a prisoner's interest in good time credits “entitle[s] him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.” Wolff, 418 U.S. at 557, 94 S.Ct. 2963. “[R]evocation of good time does not comport with the minimum requirements of procedural due process unless the findings of the prison disciplinary [officer] are supported by some evidence in the record.” ⁶Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (internal quotation marks and citation omitted). As this court has clarified, the “some evidence” standard is a standard of appellate review to be applied by the district court rather than a burden of proof in a prison disciplinary proceeding. See Brown v. Fauver, 819 F.2d 395, 399 n. 4 (3d Cir.1987).

In Hill, a Massachusetts state prison guard opened a door to a walkway to find an inmate bleeding from the mouth and suffering from a swollen eye. The guard observed three inmates jogging together down the walkway, away from the scene. The guard “concluded that one or more of the three inmates had assaulted [the victim] and that they had acted as a group.” Hill, 472 U.S. at 448, 105 S.Ct. 2768. Two of the inmates were found to have planned, aided, or participated in the assault, in violation of prison regulations, despite written statements from the victim that they had not caused his injuries. Based solely upon the testimony and written statements of the guard, prison officials sanctioned each of the two inmates with the forfeiture of 100 days of good time credits as well as 15 days in isolation. The Supreme Court upheld the deprivation of good time credits, noting that “[a]lthough the evidence in this case might be characterized as meager, and there was no direct evidence identifying any one of three inmates as the assailant, the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.” Id. at 457, 105 S.Ct. 2768.

The key question in this case is what limit the Due Process Clause places on the constructive possession theory in the prison context. Denny argues that constructive possession in the prison context requires a showing of “dominion and control over the contraband, as well as knowledge of it.” Appellants' Br. at 9. While it is true that this is the standard definition of constructive possession in this circuit, Denny does not cite a single case from this court or any other court applying this definition of constructive possession in the prison context.⁷ As noted above, the Supreme Court has held that a prison disciplinary decision need only be supported by “some evidence” in order to satisfy due process. Hill, 472 U.S. at 454, 105 S.Ct. 2768. Though the “some evidence” standard is a standard of appellate review and not a burden of proof, see Brown, 819 F.2d at 399 n. 4, a reviewing court need only find that the DHO's decision had “some basis in fact” in order to affirm the decision as comporting with the Due Process Clause. Hill, 472 U.S. at 456, 105 S.Ct. 2768.

Courts that have considered this question have uniformly held that the discovery of contraband in a shared cell constitutes “some evidence” of possession sufficient to uphold a prison disciplinary sanction against each inmate in the cell, including depriving that inmate of his or her liberty interest in good time credits. The Seventh Circuit, applying a probability-based approach, held that a twenty-five percent probability that contraband found in a...