UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Tyren Ali

v. Case No. 18-cv-896-JL Opinion No.

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

. 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.,

(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,

(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.,

(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.’”

(citations omitted). The nonmoving party’s failure to make

the requisite showing “entitles the moving party to summary

judgment.”

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.),

(1st

Cir. 2016). As petitioner is proceeding pro se, his pleadings

are construed liberally. See Erickson v. Pardus,

(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.

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.”

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.

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.”

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,

(1st Cir. 2005); see

6 also Wolff v. McDonnell,

(1974); Smith v.

Mass. Dep’t of Corr.,

(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,

(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,

, at *24,

, at *8 (D.R.I. Dec. 6, 2017)

(citation omitted), R&R approved,

,

, 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,

(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,

(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,

(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,

(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),

, at *31,

, 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.

10