UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Tyren Ali
v. Case No. 18-cv-896-JL Opinion No. 2020 DNH 043 Warden, Federal Correctional Institution, Berlin, New Hampshire
O R D E R
Tyren Ali, an inmate at the Federal Correctional
Institution, Berlin, New Hampshire (“FCI Berlin”), has filed a
petition for a writ of habeas corpus (Doc. No. 1) pursuant to 28
U.S.C. § 2241. Mr. Ali’s petition challenges the decision of
the Federal Bureau of Prisons (“BOP”) to take away forty days of
his good conduct time following a disciplinary hearing on
alcohol possession charges which arose when Mr. Ali failed two
successive breathalyzer tests administered to him on May 6, 2017
at FCI Fort Dix in New Jersey. Before the court is the FCI
Berlin Warden’s motion for summary judgment (Doc. No. 10), to
which petitioner filed the same objection twice (Doc. Nos. 12,
16).
Discussion
I. Summary Judgment Standard
“Summary judgment is appropriate when the record shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Walker v. President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir.
2016) (citations and internal quotation marks omitted). To
obtain summary judgment, “the moving party must affirmatively
demonstrate that there is no evidence in the record to support a
judgment for the nonmoving party.” Celotex Corp. v. Catrett, 477
U.S. 317, 332 (1986). Once the moving party makes the required
showing, “‘the burden shifts to the nonmoving party, who must,
with respect to each issue on which [it] would bear the burden of
proof at trial, demonstrate that a trier of fact could reasonably
resolve that issue in [its] favor.’” Flovac, Inc. v. Airvac,
Inc., 817 F.3d 849, 853 (1st Cir. 2016) (citations omitted).
“This demonstration must be accomplished by reference to
materials of evidentiary quality,” and that evidence must be
“‘significantly probative,’” and “more than ‘merely colorable.’”
Id. (citations omitted). The nonmoving party’s failure to make
the requisite showing “entitles the moving party to summary
judgment.” Id. The evidence is “viewed in the light most
favorable to the nonmoving party . . . and all reasonable
inferences must be taken in that party’s favor.” Harris v.
Scarcelli (In re Oak Knoll Assocs., L.P.), 835 F.3d 24, 29 (1st
Cir. 2016). As petitioner is proceeding pro se, his pleadings
are construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
2 II. Undisputed Facts
At 2:46 a.m. on May 6, 2017, an FCI Fort Dix corrections
officer (“C/O”) woke Mr. Ali and his cellmate for a random
breathalyzer test. Fifteen minutes later, the same officer ran a
second breathalyzer test. On the first test, Mr. Ali scored a
.058 and on the second, .055. Based on those scores, Mr. Ali was
charged with violating the BOP prohibition on the use of alcohol
by prisoners. The incident report states that Mr. Ali offered
“no comment” when confronted with the charge. Doc. No. 10-3, at
2. The matter was referred for further disciplinary proceedings
before a disciplinary hearing officer (“DHO”).
On May 8, 2017, Mr. Ali received written notice of his right
to call witnesses, present documentary evidence, and have a staff
member represent him at the disciplinary hearing. Mr. Ali
entered a plea of not guilty to the disciplinary charge, declined
staff representation, and stated he wanted to call his cellmate
as a witness. Id.
At the June 30, 2017 disciplinary hearing, both Mr. Ali and
his cellmate testified about having been awakened and made to
take breathalyzer tests, without any advanced warning. Mr. Ali
testified that two different machines were used to test him, and
that after he was moved to the “drunk tank,” he was tested a
third time. DHO Report (Doc. No. 10-4, at 2-3).
3 Crediting the incident report -- which stated that Mr. Ali
had failed the breathalyzer test twice on the same machine (with
readings of .058 and .055, spaced fifteen minutes apart) -- the
DHO found Mr. Ali to be guilty of consuming alcohol. A log of
two weeks of breathalyzer test results including both of Mr.
Ali’s scores is attached as an exhibit to the DHO Report. The
DHO’s written findings specifically note that, at the hearing,
Mr. Ali did “not deny taking the breathalyzer test or the
readings.” Id. The DHO justified the imposition of a 40-day
loss of good time credits by finding that Mr. Ali’s conduct
demonstrated a disregard for BOP rules and for the risks of being
indebted to the prisoner who had provided him with alcohol. Id.
On July 17, 2017 (two weeks after the disciplinary
hearing), Mr. Ali sent an Inmate Request Form, see Doc. No. 1, at
15, asking the investigating lieutenant/calibration officer to
provide Mr. Ali with a six-month calibration log for the
breathalyzer used in his disciplinary proceedings. Mr. Ali
stated he needed that log “for the express purpose of appealing
an alcohol related Incident Report.” Id. The record before this
court does not show whether Mr. Ali received any information in
response to that request, or what that information would have
shown. 1
1Mr. Ali’s Central Office appeal states, “I submitted as part of my defense, a [Freedom of Information Act] (FOIA)
4 After receiving the DHO’s written decision in
August/September 2017, Mr. Ali filed two levels of administrative
appeals, in which he asserted that, both prior to and during the
disciplinary hearing, he had asked that the investigating officer
and DHO review the calibration logs and records of the
breathalyzer operator’s certification. See BOP Regional Admin.
Remedy Appeal, Sept. 11, 2017 (Doc. No. 10-6, at 2); BOP Central
Office Appeal, Nov. 1, 2017 (Doc. No. 10-6, at 5). Mr. Ali
further asserted in his administrative appeal that he told the
investigating officer he was not intoxicated and asked the
officer to check the logs and certification records, and then at
the disciplinary hearing he similarly asked the DHO to produce
and/or review the calibration logs and certification records.
Doc. No. 10-6, at 3, 6. Mr. Ali’s appeal concludes that if the
DHO had reviewed those records, “I would have been vindicated of
the allegation based upon the machine being defective, and the
C/O failing to follow proper protocols in the testing process.”
Doc. No. 10-6, at 6.
The BOP Regional Director denied Mr. Ali’s first-tier
appeal, concluding: (1) that the breathalyzer’s accuracy “was not
request to ascertain copies of the testing logs, maintenance logs and certification in use of the machine . . . .” Doc. No. 10-6, at 6. It unclear whether that “FOIA” request reference concerns the July 17, 2017 Inmate Request Form, or a different request that is not otherwise documented in the record here.
5 questioned during the disciplinary process, nor was it part of
[Mr.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Tyren Ali
v. Case No. 18-cv-896-JL Opinion No. 2020 DNH 043 Warden, Federal Correctional Institution, Berlin, New Hampshire
O R D E R
Tyren Ali, an inmate at the Federal Correctional
Institution, Berlin, New Hampshire (“FCI Berlin”), has filed a
petition for a writ of habeas corpus (Doc. No. 1) pursuant to 28
U.S.C. § 2241. Mr. Ali’s petition challenges the decision of
the Federal Bureau of Prisons (“BOP”) to take away forty days of
his good conduct time following a disciplinary hearing on
alcohol possession charges which arose when Mr. Ali failed two
successive breathalyzer tests administered to him on May 6, 2017
at FCI Fort Dix in New Jersey. Before the court is the FCI
Berlin Warden’s motion for summary judgment (Doc. No. 10), to
which petitioner filed the same objection twice (Doc. Nos. 12,
16).
Discussion
I. Summary Judgment Standard
“Summary judgment is appropriate when the record shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Walker v. President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir.
2016) (citations and internal quotation marks omitted). To
obtain summary judgment, “the moving party must affirmatively
demonstrate that there is no evidence in the record to support a
judgment for the nonmoving party.” Celotex Corp. v. Catrett, 477
U.S. 317, 332 (1986). Once the moving party makes the required
showing, “‘the burden shifts to the nonmoving party, who must,
with respect to each issue on which [it] would bear the burden of
proof at trial, demonstrate that a trier of fact could reasonably
resolve that issue in [its] favor.’” Flovac, Inc. v. Airvac,
Inc., 817 F.3d 849, 853 (1st Cir. 2016) (citations omitted).
“This demonstration must be accomplished by reference to
materials of evidentiary quality,” and that evidence must be
“‘significantly probative,’” and “more than ‘merely colorable.’”
Id. (citations omitted). The nonmoving party’s failure to make
the requisite showing “entitles the moving party to summary
judgment.” Id. The evidence is “viewed in the light most
favorable to the nonmoving party . . . and all reasonable
inferences must be taken in that party’s favor.” Harris v.
Scarcelli (In re Oak Knoll Assocs., L.P.), 835 F.3d 24, 29 (1st
Cir. 2016). As petitioner is proceeding pro se, his pleadings
are construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
2 II. Undisputed Facts
At 2:46 a.m. on May 6, 2017, an FCI Fort Dix corrections
officer (“C/O”) woke Mr. Ali and his cellmate for a random
breathalyzer test. Fifteen minutes later, the same officer ran a
second breathalyzer test. On the first test, Mr. Ali scored a
.058 and on the second, .055. Based on those scores, Mr. Ali was
charged with violating the BOP prohibition on the use of alcohol
by prisoners. The incident report states that Mr. Ali offered
“no comment” when confronted with the charge. Doc. No. 10-3, at
2. The matter was referred for further disciplinary proceedings
before a disciplinary hearing officer (“DHO”).
On May 8, 2017, Mr. Ali received written notice of his right
to call witnesses, present documentary evidence, and have a staff
member represent him at the disciplinary hearing. Mr. Ali
entered a plea of not guilty to the disciplinary charge, declined
staff representation, and stated he wanted to call his cellmate
as a witness. Id.
At the June 30, 2017 disciplinary hearing, both Mr. Ali and
his cellmate testified about having been awakened and made to
take breathalyzer tests, without any advanced warning. Mr. Ali
testified that two different machines were used to test him, and
that after he was moved to the “drunk tank,” he was tested a
third time. DHO Report (Doc. No. 10-4, at 2-3).
3 Crediting the incident report -- which stated that Mr. Ali
had failed the breathalyzer test twice on the same machine (with
readings of .058 and .055, spaced fifteen minutes apart) -- the
DHO found Mr. Ali to be guilty of consuming alcohol. A log of
two weeks of breathalyzer test results including both of Mr.
Ali’s scores is attached as an exhibit to the DHO Report. The
DHO’s written findings specifically note that, at the hearing,
Mr. Ali did “not deny taking the breathalyzer test or the
readings.” Id. The DHO justified the imposition of a 40-day
loss of good time credits by finding that Mr. Ali’s conduct
demonstrated a disregard for BOP rules and for the risks of being
indebted to the prisoner who had provided him with alcohol. Id.
On July 17, 2017 (two weeks after the disciplinary
hearing), Mr. Ali sent an Inmate Request Form, see Doc. No. 1, at
15, asking the investigating lieutenant/calibration officer to
provide Mr. Ali with a six-month calibration log for the
breathalyzer used in his disciplinary proceedings. Mr. Ali
stated he needed that log “for the express purpose of appealing
an alcohol related Incident Report.” Id. The record before this
court does not show whether Mr. Ali received any information in
response to that request, or what that information would have
shown. 1
1Mr. Ali’s Central Office appeal states, “I submitted as part of my defense, a [Freedom of Information Act] (FOIA)
4 After receiving the DHO’s written decision in
August/September 2017, Mr. Ali filed two levels of administrative
appeals, in which he asserted that, both prior to and during the
disciplinary hearing, he had asked that the investigating officer
and DHO review the calibration logs and records of the
breathalyzer operator’s certification. See BOP Regional Admin.
Remedy Appeal, Sept. 11, 2017 (Doc. No. 10-6, at 2); BOP Central
Office Appeal, Nov. 1, 2017 (Doc. No. 10-6, at 5). Mr. Ali
further asserted in his administrative appeal that he told the
investigating officer he was not intoxicated and asked the
officer to check the logs and certification records, and then at
the disciplinary hearing he similarly asked the DHO to produce
and/or review the calibration logs and certification records.
Doc. No. 10-6, at 3, 6. Mr. Ali’s appeal concludes that if the
DHO had reviewed those records, “I would have been vindicated of
the allegation based upon the machine being defective, and the
C/O failing to follow proper protocols in the testing process.”
Doc. No. 10-6, at 6.
The BOP Regional Director denied Mr. Ali’s first-tier
appeal, concluding: (1) that the breathalyzer’s accuracy “was not
request to ascertain copies of the testing logs, maintenance logs and certification in use of the machine . . . .” Doc. No. 10-6, at 6. It unclear whether that “FOIA” request reference concerns the July 17, 2017 Inmate Request Form, or a different request that is not otherwise documented in the record here.
5 questioned during the disciplinary process, nor was it part of
[Mr. Ali’s] defense to the prohibited act”; and (2) that Mr. Ali
had the opportunity to present evidence and provide a defense at
the hearing, but the DHO “found the greater weight of evidence
supported the staff member’s account.” Doc. No. 10-6, at 4
(Regional Admin. Response, dated Oct. 16, 2017). Mr. Ali’s
Central Office appeal was unavailing. See id., at 7 (Central
Office Response, dated Jan. 19, 2018).
In his § 2241 petition here, Mr. Ali reiterates the same
factual allegations regarding the hearing and repeats the same
claims he made in his BOP appeals, see Doc. No. 1. In his
objection to the motion for summary judgment, see Doc. Nos. 12,
16, Mr. Ali adds new claims that the DHO was “biased,” and that
the test results were not confirmed by any BOP-approved
laboratory test. See Doc. Nos. 12, 16.
III. Due Process and Disciplinary Proceedings
The minimum due process requirements for prison
disciplinary hearings affecting good time credits are: written
notice of the charge, the ability to call witnesses and present
documentary evidence (when doing so is consistent with
institutional safety and correctional concerns), a hearing
before an impartial decisionmaker, and a written statement as to
the evidence relied on and the reasons for the DHO’s decision.
See Surprenant v. Rivas, 424 F.3d 5, 16 (1st Cir. 2005); see
6 also Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974); Smith v.
Mass. Dep’t of Corr., 936 F.2d 1390, 1401 (1st Cir. 1991). In
addition, due process requires that the decision be supported by
“some evidence”; the question for the court’s consideration “is
whether there is any evidence in the record that could support
the conclusion reached by the disciplinary board.”
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455
(1985). “[J]udicial review in a habeas case must not amount to
a reevaluation of the prison’s disciplinary determination, but
is limited ‘to ensur[ing] that federal constitutional guarantees
of due process are observed in the proceedings.’” Cipriano v.
Fed. Bureau of Prisons, No. 17-377WES, 2017 U.S. Dist. LEXIS
215112, at *24, 2018 WL 400768, at *8 (D.R.I. Dec. 6, 2017)
(citation omitted), R&R approved, 2018 U.S. Dist. LEXIS 6013,
2018 WL 400768, at *1 (D.R.I. Jan. 12, 2018). In “evaluating
whether prison officials’ failure to disclose or consider
evidence was harmless, courts must determine whether the
excluded evidence could have aided the inmate’s defense.”
Lennear v. Wilson, 937 F.3d 257, 277 (4th Cir. 2019).
Mr. Ali contends that his procedural due process rights were
violated when he requested but was not provided with the
breathalyzer calibration records and any certification as to the
breathalyzer operator’s competence during the disciplinary
hearing, and when the DHO did not review those records before
7 finding Mr. Ali guilty of the infraction. In general, an inmate
must present his request for access to exculpatory evidence prior
to or at the time of the disciplinary hearing; post-hearing
requests for information that could have been requested sooner do
not provide grounds for finding that an inmate’s procedural due
process rights have been violated. See Donahue v. Grondolsky,
398 F. App’x 767, 771 (3d Cir. 2010) (prisoner, who first raised
his request for access to evidence in his appeal to Regional
Director, did so “too late for any prison official at the hearing
level to respond appropriately to the request”). The DHO Report
does not record that Mr. Ali made such a request and further
states that, in the hearing, Mr. Ali did not “deny” the
breathalyzer results. Doc. No. 10-4. Another document in the
record before this court, relating to the timing of Mr. Ali’s
request for the calibration and operator certification records,
is a post-hearing July 17, 2017 Inmate Request Form signed by Mr.
Ali, asking for calibration records. No other form or document
prepared in advance of Mr. Ali’s BOP appeals provides any
evidentiary support for the claim that Mr. Ali asked the DHO to
produce and/or review the calibration and certification records
in the disciplinary hearing. And although this court extended
the briefing schedule for the express purpose of providing Mr.
Ali with an additional opportunity to file an affidavit or
declaration to supplement his objection to the summary judgment
8 motion, see Feb. 13, 2020 Order (Doc. No. 15), Mr. Ali did not
file any evidence as an exhibit to his objection to the summary
judgment motion. Cf. Johnson v. Finnan, 467 F.3d 693, 694 (7th
Cir. 2006) (“when a prisoner . . . provides competent evidence
(such as an affidavit by someone with personal knowledge of the
events) contradicting an assertion by the prison disciplinary
board on a material question of fact pertinent to an issue of
constitutional law, the district court must hold an evidentiary
hearing to determine where the truth lies”). As there is no
sworn witness statement or other submission of evidentiary
quality that could raise a genuine dispute of material fact as to
whether Mr. Ali made a timely request for the calibration logs
and the operator’s certification, the Warden’s motion for summary
judgment is properly granted on Mr. Ali’s procedural due process
claims challenging the failure of the DHO to produce or review
those potentially exculpatory records.
In all other respects, Mr. Ali has failed to show that there
is a genuine factual dispute as to whether he suffered any due
process violation in the disciplinary proceedings. He received a
written statement of the charges and timely prior notice of his
hearing. He was able to testify and call a witness to
corroborate his testimony. After the hearing, the DHO issued a
written decision justifying the loss of good time, in which the
DHO credited the incident report as true. Cf. Hartsfield v.
9 Nichols, 511 F.3d 826, 831 (8th Cir. 2008) (“report from a
correctional officer, even if disputed by the inmate and
supported by no other evidence, legally suffices as ‘some
evidence’”). The claims that the hearing officer was biased, and
that prison officials failed to follow applicable BOP policies,
are unsupported by any evidence. 2 Judgment is properly entered
as a matter of law on the claims in Mr. Ali’s § 2241 petition.
Conclusion
For the foregoing reasons, the Warden’s motion for summary
judgment (Doc. No. 10) is granted, and Mr. Ali’s § 2241 petition
(Doc. No. 1) is denied. The clerk’s office shall enter judgment
and close this case.
SO ORDERED.
__________________________ Joseph N. Laplante United States District Judge
March 20, 2020
cc: Tyren Ali, pro se Seth Aframe, Esq.
2Mr.Ali’s claim based on the failure of prison officials to submit his breathalyzer results to a laboratory for confirmation is without merit. See Mansa v. United States, No. 3:16-cv-644 (VAB), 2019 U.S. Dist. LEXIS 2065, at *31, 2019 WL 121681, at *10 (D. Conn. Jan. 7, 2019) (“as a matter of law, ‘prisoners do not have a due process right to engage in secondary testing’” (citation omitted)). Furthermore, the policy Mr. Ali cites, BOP Program Statement No. 6060.08, “Urine Surveillance and Narcotic Identification,” does not apply to breathalyzer results.