UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Phillip Roberts
v. Case No. 21-cv-875-SE Opinion No. 2022 DNH 137 Warden, FCI Berlin
O R D E R
Phillip Roberts, proceeding pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging
a disciplinary proceeding that resulted in his loss of good
conduct time.1 As construed on preliminary review, Roberts
asserts that the proceeding violated his Fifth Amendment due
process rights. The warden moves for summary judgment. Doc. no.
10. Roberts did not file a response to the motion. Because at
least some evidence supported the disciplinary hearing officer’s
(“DHO”) decision, the court grants the warden’s motion.
Standard of Review
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
1 Roberts filed his petition when he was a prisoner at the Federal Correctional Institution (“FCI”) in Berlin, New Hampshire. He is now incarcerated at the FCI in Beaver, West Virginia. P. 56(a). A material fact is one that “carries with it the
potential to affect the outcome of the suit.” French v. Merrill,
15 F.4th 116, 123 (1st Cir. 2021) (quotation omitted). A
material fact is in genuine dispute if “a reasonable jury could
resolve the point in the favor of the non-moving party.” Id. The
court construes the record in the light most favorable to the
nonmoving party. Benson v. Wal-Mart Stores East, L.P., 14 F.4th
13, 17 (1st Cir. 2021). In considering a motion for summary
judgment, the court may review materials cited in the motion and
other materials in the record. Fed. R. Civ. P. 56(c)(1)(3).
Background
The disciplinary charges against Roberts pertain to his use
of the telephone at FCI Berlin. Prisoners’ calls are restricted
and monitored. On February 26, 2021, a member of the Bureau of
Prisons (“BOP”) staff at FCI Berlin reviewed a recording of a
telephone call that Roberts placed on February 23 from the
Special Housing Unit. During the February 23 call, Roberts asked
the recipient of the call to make third-party calls for him.
Roberts explained to the recipient that he could not get caught
making a third-party call.
A third-party call is a three-way call made by a prisoner
to a recipient who then calls another telephone number to
contact a third person. The BOP prohibits prisoners from making
2 such calls. Two BOP Offense Codes pertain to third-party calls:
Code 297, and a lesser offense, Code 397. 28 C.F.R. § 541.3,
T.1.
In Roberts’s case, the recipient’s attempt to contact the
first third-party, “Jaquelle,” at a number Roberts provided to
the recipient was unsuccessful. Roberts then asked the recipient
to call “Deandre” at a different number, but that call went to
voicemail. Later in the call a female voice could be heard on a
speaker phone talking to both Roberts and the recipient.
On February 26, 2021, the BOP staff member who reviewed the
recording completed an incident report on the third-party call,
Incident Report No. 3478404. The Incident Report cites Code 297
as the Prohibited Act Code. A prison official delivered the
Incident Report to Roberts that same day. After the Unit
Disciplinary Commission reviewed the incident, the report was
referred to the DHO for a hearing.
Roberts wrote a statement in which he denied the charge. In
the statement, he asserted that he asked his father to make two
calls to relay messages on his behalf but denied that he ever
asked his father to make a third-party call or a conference
call. He admitted that his father texted Roberts’s girlfriend,
at Robert’s request, to tell her that Roberts needed money in
his commissary account and that she responded that would she
call back. Roberts also asserted that the female voice heard on
3 the recorded call was not a separate call but instead was his
father’s girlfriend in the background of the call between him
and his father.
The DHO held a hearing on March 16, 2021. Roberts provided
his written statement and also responded to evidence that was
raised during the hearing. The DHO found that the record
evidence showed that Roberts committed the prohibited act as
charged. In making that finding, the DHO relied on the BOP staff
member’s written account of monitoring Roberts’s call, the DHO’s
own review of the call, the record of calls from Roberts’s
account, and Roberts’s statements. Roberts appealed that
decision through the administrative process.
After his appeals were denied, Roberts filed the § 2241
petition in this case. He contends that there is no evidence
that he committed the prohibited act of three-way calling,
making the DHO’s decision a violation of due process. He also
contends that the correct code for three-way calling is Code 397
rather than Code 297 as was charged.
Discussion
The warden moves for summary judgment. In support, he
asserts that, contrary to Roberts’s claim, there was evidence
supporting the DHO’s decision. The warden also asserts that the
BOP has discretion to decide whether to charge a violation of
4 Code 297 or Code 397. Roberts did not respond to the motion for
summary judgment.
“Prison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in
such proceedings does not apply.” Wolff v. McDonnell, 418 U.S.
539, 556 (1974). The court assumes without deciding that
prisoners retain a liberty interest in good conduct time (“GCT”)
and that 28 U.S.C. § 2241 remains a proper vehicle by which to
challenge disciplinary proceedings resulting in the loss of GCT.
See, e.g., Francis v. Maloney, 798 F.3d 33, 36-37 (1st Cir.
2015) (discussing how Pepper v. United States, 562 U.S. 476, 501
n.14 (2011) may call into question whether a prisoner can bring
a habeas claim for relief associated with lost GCT because
Pepper states in dicta that GCT “does not affect the length of a
court-imposed sentence; rather, it is an administrative reward”
to incentivize compliance with prison disciplinary regulations);
cf. Wolff, 418 U.S. at 557 (concluding prisoners have a liberty
interest in GCT because there is a statutory right to “a
shortened prison sentence through the accumulation of credits
for good behavior”).
Proceeding under that assumption, if a prison disciplinary
hearing may result in the loss of GCT, a prisoner is entitled
to: (1) written notice of the disciplinary charges at least 24
hours in advance of the hearing; (2) an opportunity, when
5 consistent with institutional safety and correctional goals, to
call witnesses and present documentary evidence in his defense;
(3) an impartial factfinder; and (4) a written statement by the
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Phillip Roberts
v. Case No. 21-cv-875-SE Opinion No. 2022 DNH 137 Warden, FCI Berlin
O R D E R
Phillip Roberts, proceeding pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging
a disciplinary proceeding that resulted in his loss of good
conduct time.1 As construed on preliminary review, Roberts
asserts that the proceeding violated his Fifth Amendment due
process rights. The warden moves for summary judgment. Doc. no.
10. Roberts did not file a response to the motion. Because at
least some evidence supported the disciplinary hearing officer’s
(“DHO”) decision, the court grants the warden’s motion.
Standard of Review
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
1 Roberts filed his petition when he was a prisoner at the Federal Correctional Institution (“FCI”) in Berlin, New Hampshire. He is now incarcerated at the FCI in Beaver, West Virginia. P. 56(a). A material fact is one that “carries with it the
potential to affect the outcome of the suit.” French v. Merrill,
15 F.4th 116, 123 (1st Cir. 2021) (quotation omitted). A
material fact is in genuine dispute if “a reasonable jury could
resolve the point in the favor of the non-moving party.” Id. The
court construes the record in the light most favorable to the
nonmoving party. Benson v. Wal-Mart Stores East, L.P., 14 F.4th
13, 17 (1st Cir. 2021). In considering a motion for summary
judgment, the court may review materials cited in the motion and
other materials in the record. Fed. R. Civ. P. 56(c)(1)(3).
Background
The disciplinary charges against Roberts pertain to his use
of the telephone at FCI Berlin. Prisoners’ calls are restricted
and monitored. On February 26, 2021, a member of the Bureau of
Prisons (“BOP”) staff at FCI Berlin reviewed a recording of a
telephone call that Roberts placed on February 23 from the
Special Housing Unit. During the February 23 call, Roberts asked
the recipient of the call to make third-party calls for him.
Roberts explained to the recipient that he could not get caught
making a third-party call.
A third-party call is a three-way call made by a prisoner
to a recipient who then calls another telephone number to
contact a third person. The BOP prohibits prisoners from making
2 such calls. Two BOP Offense Codes pertain to third-party calls:
Code 297, and a lesser offense, Code 397. 28 C.F.R. § 541.3,
T.1.
In Roberts’s case, the recipient’s attempt to contact the
first third-party, “Jaquelle,” at a number Roberts provided to
the recipient was unsuccessful. Roberts then asked the recipient
to call “Deandre” at a different number, but that call went to
voicemail. Later in the call a female voice could be heard on a
speaker phone talking to both Roberts and the recipient.
On February 26, 2021, the BOP staff member who reviewed the
recording completed an incident report on the third-party call,
Incident Report No. 3478404. The Incident Report cites Code 297
as the Prohibited Act Code. A prison official delivered the
Incident Report to Roberts that same day. After the Unit
Disciplinary Commission reviewed the incident, the report was
referred to the DHO for a hearing.
Roberts wrote a statement in which he denied the charge. In
the statement, he asserted that he asked his father to make two
calls to relay messages on his behalf but denied that he ever
asked his father to make a third-party call or a conference
call. He admitted that his father texted Roberts’s girlfriend,
at Robert’s request, to tell her that Roberts needed money in
his commissary account and that she responded that would she
call back. Roberts also asserted that the female voice heard on
3 the recorded call was not a separate call but instead was his
father’s girlfriend in the background of the call between him
and his father.
The DHO held a hearing on March 16, 2021. Roberts provided
his written statement and also responded to evidence that was
raised during the hearing. The DHO found that the record
evidence showed that Roberts committed the prohibited act as
charged. In making that finding, the DHO relied on the BOP staff
member’s written account of monitoring Roberts’s call, the DHO’s
own review of the call, the record of calls from Roberts’s
account, and Roberts’s statements. Roberts appealed that
decision through the administrative process.
After his appeals were denied, Roberts filed the § 2241
petition in this case. He contends that there is no evidence
that he committed the prohibited act of three-way calling,
making the DHO’s decision a violation of due process. He also
contends that the correct code for three-way calling is Code 397
rather than Code 297 as was charged.
Discussion
The warden moves for summary judgment. In support, he
asserts that, contrary to Roberts’s claim, there was evidence
supporting the DHO’s decision. The warden also asserts that the
BOP has discretion to decide whether to charge a violation of
4 Code 297 or Code 397. Roberts did not respond to the motion for
summary judgment.
“Prison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in
such proceedings does not apply.” Wolff v. McDonnell, 418 U.S.
539, 556 (1974). The court assumes without deciding that
prisoners retain a liberty interest in good conduct time (“GCT”)
and that 28 U.S.C. § 2241 remains a proper vehicle by which to
challenge disciplinary proceedings resulting in the loss of GCT.
See, e.g., Francis v. Maloney, 798 F.3d 33, 36-37 (1st Cir.
2015) (discussing how Pepper v. United States, 562 U.S. 476, 501
n.14 (2011) may call into question whether a prisoner can bring
a habeas claim for relief associated with lost GCT because
Pepper states in dicta that GCT “does not affect the length of a
court-imposed sentence; rather, it is an administrative reward”
to incentivize compliance with prison disciplinary regulations);
cf. Wolff, 418 U.S. at 557 (concluding prisoners have a liberty
interest in GCT because there is a statutory right to “a
shortened prison sentence through the accumulation of credits
for good behavior”).
Proceeding under that assumption, if a prison disciplinary
hearing may result in the loss of GCT, a prisoner is entitled
to: (1) written notice of the disciplinary charges at least 24
hours in advance of the hearing; (2) an opportunity, when
5 consistent with institutional safety and correctional goals, to
call witnesses and present documentary evidence in his defense;
(3) an impartial factfinder; and (4) a written statement by the
factfinder of the evidence relied upon and the reasons for the
disciplinary action. Id. at 563-67. Further, due process
requires that the disciplinary decision to revoke GCT be
supported by “some evidence.” See Superintendent, Massachusetts
Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 455-56 (1985)
(explaining the “some-evidence” inquiry requires the court to
determine “whether there is any evidence in the record that
could support the [DHO’s] conclusion”).
I. Code 297 or Code 397
Both Code 297 and Code 397 prohibit the use of a telephone
for abuses other than illegal activity. The primary difference
is that Code 297 prohibits the “use of the telephone for abuses
other than criminal activity which circumvent the ability of
staff to monitor frequency of telephone use, content of the
call, or the number called . . . .” 28 C.F.R. § 541.3, T.1
(emphasis added). Code 397 prohibits the “use of the telephone
for abuses other than criminal activity which do not circumvent
the ability of staff to monitor” such conduct. Id. (emphasis
added). “A ‘297’ is considered a high severity level violation”
while a “‘397’ is considered a moderate severity level
6 violation.” Chappell v. Salina, No. 2:17-CV-374, 2018 WL
8415413, at *1 n. 1 (S.D. Tex. Nov. 5, 2018), report and
recommendation adopted, No. 2:17-CV-374, 2019 WL 2284904 (S.D.
Tex. May 29, 2019). Thus, a violation of Code 297 brings with it
a higher sanction than a Code 397 violation. Oliver v. Warden,
No. 5:19-cv-214-KKM-PRL, 2022 WL 2209896, at *1 (M.D. Fl. June
21, 2022).
The warden contends that the BOP can charge a violation of
Code 297, with the more severe sanction, without violating due
process when charged conduct violates both Codes 297 and 397.
Courts that have addressed the issue agree that the charging
decision in such circumstances does not violate due process as
long as there is some evidence that shows the prisoner violated
the charged code. See, e.g., West v. Williams, No. 2:15-cv-10,
2015 WL 5042158, at *6 (N.D. W.Va. Aug. 25, 2015); Saeed v.
Pugh, No. 4:14–cv–0871, 2014 WL 4966357, at *2 (N.D. Ohio Oct.
3, 2014). Therefore, the material issue for purposes of due
process is whether some evidence supports the decision in a
disciplinary proceeding that the prisoner committed the charged
violation: here, a violation of Code 297. Hill, 472 U.S. at 454.
II. Sufficiency of the Evidence
To determine whether the decision is based on some
evidence, the court need not review the entire record or make
7 credibility determinations. Hill, 472 U.S. at 455-56. Even a
meager amount of evidence satisfies due process, and a due
process violation will be found only if there is no evidence in
the record that supports the decision, making it arbitrary. Id.
at 456-57.
The record evidence shows that Roberts tried to make third-
party calls on February 23, 2021, by calling the recipient,
later identified as Roberts’s father, and asking him to call
third parties at the numbers Roberts provided. During the call,
Roberts told the recipient that he would get in trouble for
making three-way calls. In addition, Roberts asked the recipient
to contact his girlfriend to tell her to send Roberts money.
Even Roberts’s written statement asserts that he told the
recipient to call other numbers on a cell phone for the purpose
of delivering messages on Roberts’s behalf while he and Roberts
maintained their conversation on the house phone. The
recipient’s first two attempts to call third parties were
unsuccessful. Eventually, a third person is heard on the call on
a speaker phone. Although the BOP staff member heard the call,
Roberts’s actions hid the identities of the third-party
recipients, who may not be approved contacts.
Roberts may believe that his conduct is better classified
as a violation of Code 397. The relevant question, however, is
whether there is some evidence that he violated Code 297. Third-
8 party calls may interfere with the ability of BOP staff to
monitor telephone use by prisoners, including the identity of
the people involved in the call and the telephone numbers used.
See Mustafa v. Fikes, No. 22-CV-0011 (PJS/JFD), 2022 WL 4291429,
at *5 (D. Minn. Aug. 17, 2022), report and recommendation
adopted, No. 22-CV-0011 (PJS/JFD), 2022 WL 4290686 (D. Minn.
Sept. 16, 2022); Chappell, 2018 WL 8415413, at *5; Saeed, 2014
WL 4966357, at *2. Therefore, the record includes some evidence
that Roberts violated Code 297, and the warden is entitled to
Conclusion
For the foregoing reasons, the warden’s motion for summary
judgment (document no. 10) is granted. The petition is
dismissed.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________ Samantha D. Elliott United States District Judge
October 28, 2022
cc: Phillip Roberts, pro se. Seth R. Aframe, AUSA.