UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Avaun Johnson

v. Civil No. 20-cv-920-JD Opinion No.

Warden, FCI Berlin

O R D E R

Avaun Johnson, proceeding pro se, brings a petition under

, 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,

, at *7 (D. Mass. Sept. 24, 2020), report and recommendation adopted, No. CV 19-11745-RGS,

(D. Mass. Oct. 14, 2020) Church v. Great Am. Ins. Co.,

(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,

(1st Cir.

2020). The court, however, disregards conclusory allegations

that simply “parrot the relevant legal standard.” O'Brien v.

Deutsche Bank Nat. Tr. Co.,

(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,

(1st Cir. 2015) (noting dictum in

Pepper v. United States,

, 501 n.14 (2011) that

suggested that such relief might not be available but assuming

the petition could proceed); Toth v. Spaulding,

,

at *2 (D. Mass. Aug. 12, 2020). The petition is properly filed

in the district where the prisoner is currently incarcerated.

Before bringing a petition under § 2241, however, a

prisoner must exhaust available administrative remedies. Jones

v. Warden,

, 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,

(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

§ 541.8(b).

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,

(1985). In addition, the proceeding must be conducted before an

impartial decision maker. Surprenant v. Rivas,

(1st Cir. 2005).

(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,

(9th Cir.

6 2011); Waters v. Von Blanckensee, No. CV-20-00122-TUC-DCB,

, at *5 (D. Ariz. Sept. 29, 2020), report and

recommendation adopted,

(D. Ariz. Nov. 19,

2020); Sejour v. Sanders, No. CV 11-05744 DMG AN,

, at *7 (C.D. Cal. Jan. 18, 2012), report and

recommendation adopted,

(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,

(E.D. Pa. 2018), aff’d in part, rev’d in part,

(3d

Cir. 2018) (no due process claim raising BOP program statement

training and certification requirements); Buford v. Gilley, 14-

cv-160,

, 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,

, 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,

(N.D. W.Va. Dec. 14,

2015); Brown v. Jordan, CV-12-2420,

, 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,

(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,

, at *3; see also Brown v. Ebbert,

, 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.

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