UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Avaun Johnson
v. Civil No. 20-cv-920-JD Opinion No. 2021 DNH 042 Warden, FCI Berlin
O R D E R
Avaun Johnson, proceeding pro se, brings a petition under
28 U.S.C. § 2241, alleging that his due process rights were
violated in a disciplinary proceeding while he was held at FCI
Fort Dix. The government moves to dismiss the petition,
contending that Johnson does not allege a due process violation
and cannot raise a new claim that was not previously exhausted.
Johnson did not respond to the motion to dismiss.
Standard of Review
In considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), the court asks whether the complaint
contains factual allegations that are sufficient to state a
claim to relief that is plausible on its face.1 Newton Covenant
1 Rule 12(b)(6) is applicable to petitions under § 2241. See Barnes v. Spaulding, No. CV 19-11745-RGS, 2020 WL 6065045, at *7 (D. Mass. Sept. 24, 2020), report and recommendation adopted, No. CV 19-11745-RGS, 2020 WL 6060922 (D. Mass. Oct. 14, 2020) Church v. Great Am. Ins. Co., 956 F.3d 32, 35 (1st Cir. 2020).
The court accepts all non-conclusory and non-speculative facts
as true and draws all reasonable inferences in the non-moving
party's favor. Lyman v. Baker, 954 F.3d 351, 360 (1st Cir.
2020). The court, however, disregards conclusory allegations
that simply “parrot the relevant legal standard.” O'Brien v.
Deutsche Bank Nat. Tr. Co., 948 F.3d 31, 35 (1st Cir. 2020).
Courts continue to presume that a federal prisoner may
bring a petition under § 2241 to challenge prison disciplinary
actions that resulted in a loss of good time credits. Francis
v. Maloney, 798 F.3d 33, 36 (1st Cir. 2015) (noting dictum in
Pepper v. United States, 562 U.S. 476, 501 n.14 (2011) that
suggested that such relief might not be available but assuming
the petition could proceed); Toth v. Spaulding, 2020 WL 4698534,
at *2 (D. Mass. Aug. 12, 2020). The petition is properly filed
in the district where the prisoner is currently incarcerated.
Id. Before bringing a petition under § 2241, however, a
prisoner must exhaust available administrative remedies. Jones
v. Warden, 2020 WL 1326151, at *3 (D.N.H. Mar. 2, 2020)
(providing the process for exhausting remedies following a
prison disciplinary proceeding).
2 Background
While he was incarcerated at FCI Fort Dix, Johnson was
charged with being in possession of a cellphone in violation of
prison rules. He was given notice of the charge, and a hearing
was held before a hearing officer. Johnson denied the charge.
The hearing officer found, based on a written report submitted
by the staff member who saw Johnson with the cellphone and found
the cellphone along with related items, that Johnson was guilty
of the charge. The sanctions imposed included loss of forty-one
days of good conduct time.
Johnson appealed that decision stating his grounds as
violation of his due process and equal protection rights. In
support, he argued that the reporting officer lied when he said
that Johnson had admitted the cellphone was his but also argued
that he had not been informed of his rights. In addition, he
argued that proof was lacking that the cellphone did not belong
to another inmate. He further argued that his due process
rights were violated because the hearing officer had not had the
specialized training and certification test that is required
under the Bureau of Prisons (“BOP”) Program Statement
§ 541.8(b).
The regional director issued a decision on Johnson’s appeal
in which he stated: “A complete review of the disciplinary
3 proceedings revealed no due process concerns or deviations from
policy.” Doc. 1-1, at *7. The regional director further stated
that Johnson was allowed an opportunity to present evidence and
provide a statement in his defense. After further discussing
the hearing officer’s decision and the sanctions imposed, the
regional director denied the appeal.
Johnson then filed the same appeal statement with the
Administrative Remedy Section of the BOP. The Administrator of
National Inmate Appeals stated that the review of the
disciplinary proceedings showed that they complied with BOP
Program Statement 5270.09, Inmate Discipline Program. He
further stated that the hearing officer’s decision was based on
the evidence, that Johnson’s due process rights were upheld, and
that the sanctions imposed were appropriate and in compliance
with policy. For those reasons, Johnson’s appeal was denied.
Discussion
In his petition, Johnson alleges that his procedural due
process rights were violated because the hearing officer who
conducted his disciplinary hearing was not trained or certified
as required by the BOP’s Program statement.2 He also contends
2 He appears to be referring to BOP Program Statement 5270.09, § 541.8(b), although he cites the regulation, 28 C.F.R. § 541.8(b).
4 that he was not allowed to present evidence to show his
innocence. The government objects.
A. Training and Certification of the Hearing Officer
Although Johnson states that he knew the hearing officer
was not trained or certified as required by the BOP program
statement, he provides no basis for that statement. He also
states that he raised the issue during the hearing, but the
hearing officer’s decision did not address it. Johnson did
raise the issue on appeal, but both of the decisions on appeal
found that there were no violations of his due process rights or
the BOP’s Program Statement 5270.09, the Inmate Discipline
Program, which includes the training and certification
requirement at § 541.8(b).3 In light of the appeals findings,
Johnson has not alleged a plausible claim that the hearing
officer was not trained and certified as required under
Even if the hearing officer were not trained and certified
as required by the BOP program statement, however, that
circumstance would not be a ground for relief under § 2241.
“Where a prison disciplinary proceeding may result in the loss
3 Program Statement § 541.8(b) provides in relevant part: “A DHO may not conduct hearings without receiving specialized training and passing a certification test.”
5 of good time credits, . . . the inmate must receive (1) advance
written notice of the disciplinary charges; (2) an opportunity,
when consistent with institutional safety and correctional
goals, to call witnesses and present documentary evidence in his
defense; and (3) a written statement by the factfinder of the
evidence relied on and the reasons for the disciplinary action.”
Superintendent, Mass. Corr. Inst. v.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Avaun Johnson
v. Civil No. 20-cv-920-JD Opinion No. 2021 DNH 042 Warden, FCI Berlin
O R D E R
Avaun Johnson, proceeding pro se, brings a petition under
28 U.S.C. § 2241, alleging that his due process rights were
violated in a disciplinary proceeding while he was held at FCI
Fort Dix. The government moves to dismiss the petition,
contending that Johnson does not allege a due process violation
and cannot raise a new claim that was not previously exhausted.
Johnson did not respond to the motion to dismiss.
Standard of Review
In considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), the court asks whether the complaint
contains factual allegations that are sufficient to state a
claim to relief that is plausible on its face.1 Newton Covenant
1 Rule 12(b)(6) is applicable to petitions under § 2241. See Barnes v. Spaulding, No. CV 19-11745-RGS, 2020 WL 6065045, at *7 (D. Mass. Sept. 24, 2020), report and recommendation adopted, No. CV 19-11745-RGS, 2020 WL 6060922 (D. Mass. Oct. 14, 2020) Church v. Great Am. Ins. Co., 956 F.3d 32, 35 (1st Cir. 2020).
The court accepts all non-conclusory and non-speculative facts
as true and draws all reasonable inferences in the non-moving
party's favor. Lyman v. Baker, 954 F.3d 351, 360 (1st Cir.
2020). The court, however, disregards conclusory allegations
that simply “parrot the relevant legal standard.” O'Brien v.
Deutsche Bank Nat. Tr. Co., 948 F.3d 31, 35 (1st Cir. 2020).
Courts continue to presume that a federal prisoner may
bring a petition under § 2241 to challenge prison disciplinary
actions that resulted in a loss of good time credits. Francis
v. Maloney, 798 F.3d 33, 36 (1st Cir. 2015) (noting dictum in
Pepper v. United States, 562 U.S. 476, 501 n.14 (2011) that
suggested that such relief might not be available but assuming
the petition could proceed); Toth v. Spaulding, 2020 WL 4698534,
at *2 (D. Mass. Aug. 12, 2020). The petition is properly filed
in the district where the prisoner is currently incarcerated.
Id. Before bringing a petition under § 2241, however, a
prisoner must exhaust available administrative remedies. Jones
v. Warden, 2020 WL 1326151, at *3 (D.N.H. Mar. 2, 2020)
(providing the process for exhausting remedies following a
prison disciplinary proceeding).
2 Background
While he was incarcerated at FCI Fort Dix, Johnson was
charged with being in possession of a cellphone in violation of
prison rules. He was given notice of the charge, and a hearing
was held before a hearing officer. Johnson denied the charge.
The hearing officer found, based on a written report submitted
by the staff member who saw Johnson with the cellphone and found
the cellphone along with related items, that Johnson was guilty
of the charge. The sanctions imposed included loss of forty-one
days of good conduct time.
Johnson appealed that decision stating his grounds as
violation of his due process and equal protection rights. In
support, he argued that the reporting officer lied when he said
that Johnson had admitted the cellphone was his but also argued
that he had not been informed of his rights. In addition, he
argued that proof was lacking that the cellphone did not belong
to another inmate. He further argued that his due process
rights were violated because the hearing officer had not had the
specialized training and certification test that is required
under the Bureau of Prisons (“BOP”) Program Statement
§ 541.8(b).
The regional director issued a decision on Johnson’s appeal
in which he stated: “A complete review of the disciplinary
3 proceedings revealed no due process concerns or deviations from
policy.” Doc. 1-1, at *7. The regional director further stated
that Johnson was allowed an opportunity to present evidence and
provide a statement in his defense. After further discussing
the hearing officer’s decision and the sanctions imposed, the
regional director denied the appeal.
Johnson then filed the same appeal statement with the
Administrative Remedy Section of the BOP. The Administrator of
National Inmate Appeals stated that the review of the
disciplinary proceedings showed that they complied with BOP
Program Statement 5270.09, Inmate Discipline Program. He
further stated that the hearing officer’s decision was based on
the evidence, that Johnson’s due process rights were upheld, and
that the sanctions imposed were appropriate and in compliance
with policy. For those reasons, Johnson’s appeal was denied.
Discussion
In his petition, Johnson alleges that his procedural due
process rights were violated because the hearing officer who
conducted his disciplinary hearing was not trained or certified
as required by the BOP’s Program statement.2 He also contends
2 He appears to be referring to BOP Program Statement 5270.09, § 541.8(b), although he cites the regulation, 28 C.F.R. § 541.8(b).
4 that he was not allowed to present evidence to show his
innocence. The government objects.
A. Training and Certification of the Hearing Officer
Although Johnson states that he knew the hearing officer
was not trained or certified as required by the BOP program
statement, he provides no basis for that statement. He also
states that he raised the issue during the hearing, but the
hearing officer’s decision did not address it. Johnson did
raise the issue on appeal, but both of the decisions on appeal
found that there were no violations of his due process rights or
the BOP’s Program Statement 5270.09, the Inmate Discipline
Program, which includes the training and certification
requirement at § 541.8(b).3 In light of the appeals findings,
Johnson has not alleged a plausible claim that the hearing
officer was not trained and certified as required under
Even if the hearing officer were not trained and certified
as required by the BOP program statement, however, that
circumstance would not be a ground for relief under § 2241.
“Where a prison disciplinary proceeding may result in the loss
3 Program Statement § 541.8(b) provides in relevant part: “A DHO may not conduct hearings without receiving specialized training and passing a certification test.”
5 of good time credits, . . . the inmate must receive (1) advance
written notice of the disciplinary charges; (2) an opportunity,
when consistent with institutional safety and correctional
goals, to call witnesses and present documentary evidence in his
defense; and (3) a written statement by the factfinder of the
evidence relied on and the reasons for the disciplinary action.”
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454
(1985). In addition, the proceeding must be conducted before an
impartial decision maker. Surprenant v. Rivas, 424 F.3d 5, 16
(1st Cir. 2005). 28 C.F.R. § 541.8(b) provides that a
disciplinary hearing officer must be impartial and “not a
victim, witness, investigator, or otherwise significantly
involved in the incident.”
Johnson does not allege that the hearing officer was biased
in any manner. His claim is that his due process rights were
violated because the hearing officer was not trained or
certified in compliance with BOP Program Statement § 541.8(b).
That allegation, however, even taken as true, does not state a
due process violation.
“A habeas claim cannot be sustained based solely upon the
BOP's purported violation of its own program statement because
noncompliance with a BOP program statement is not a violation of
federal law.” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir.
6 2011); Waters v. Von Blanckensee, No. CV-20-00122-TUC-DCB, 2020
WL 6816359, at *5 (D. Ariz. Sept. 29, 2020), report and
recommendation adopted, 2020 WL 6802482 (D. Ariz. Nov. 19,
2020); Sejour v. Sanders, No. CV 11-05744 DMG AN, 2012 WL
1247185, at *7 (C.D. Cal. Jan. 18, 2012), report and
recommendation adopted, 2012 WL 1252531 (C.D. Cal. Apr. 13,
2012). The cases that Johnson cites to show that a violation of
the program statement violated his due process rights do not
support his argument. Bristrian v. Levy, 299 F. Supp. 3d 686
(E.D. Pa. 2018), aff’d in part, rev’d in part, 912 F.3d 79 (3d
Cir. 2018) (no due process claim raising BOP program statement
training and certification requirements); Buford v. Gilley, 14-
cv-160, 2017 WL 9565842, at *9 (N.D. W. Va July 27, 2017)
(mentioning program statement requirements but no due process
claim based on violation of requirements); Holiday v. DHO
Disciplinary Hearing Bd. of BOP, 15 cv 22, 2015 WL 8781498, at
*7 (N.D. W.Va. Oct. 28, 2015) (mentioning training but no due
process claim raised based on program statement), report and
recommendation adopted, 2015 WL 8756961 (N.D. W.Va. Dec. 14,
2015); Brown v. Jordan, CV-12-2420, 2013 WL 6199144, at *4 (M.D.
Pa. Nov. 27, 2013) (stating that failure to comply with BOP
program statement for training does not cause due process
violation absent a showing of prejudice); Molina v. Longley,
7 Civil Action No. 10-294E, 2012 WL 2679488 (W.D. Pa. July 6,
2012) (no due process claim raising BOP program statement
requirements).
Johnson has not shown that a due process violation occurred
even if the hearing officer who presided at his disciplinary
proceeding had not been trained and certified as required under
Program Statement § 541.8(b).
B. Evidence to Show Innocence
Johnson alleges that he asked the hearing officer to review
surveillance video to show that he was in the gymnasium at the
time the staff member reported that Johnson was in his cell
using a cellphone. He further alleges that the hearing officer
declined to review the video footage. That request was not
mentioned in the hearing officer’s decision. Further, Johnson
did not raise an issue about the surveillance video footage in
either appeal.
As is provided above, an inmate must exhaust administrative
remedies before bringing a claim under § 2241. Jones, 2020 WL
1326151, at *3; see also Brown v. Ebbert, 2016 WL 695193, at *3
(M.D. Pa Feb. 18, 2016). Because there is no indication in the
record that Johnson raised a claim about the hearing officer not
viewing surveillance video that he alleges supported his
8 defense, Johnson has not exhausted that claim. For that reason,
the court will not consider it in support of his petition under
§ 2241.
Conclusion
For the foregoing reasons, the government’s motion to
dismiss (document no. 10) is granted.
The petition (document no. 1) is dismissed.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge February 24, 2021
cc: Avaun Johnson, pro se. Seth R. Aframe, AUSA.