UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Fernando Sanchez

v. Case No. 22-cv-231-SE Opinion No.

Warden, FCI Berlin

O R D E R

Fernando Sanchez, proceeding pro se, filed a petition for a

writ of habeas corpus pursuant to

, challenging

a disciplinary proceeding that resulted in his loss of 41 days

good conduct time (“GCT”). He contends that the disciplinary

hearing officer’s (“DHO”) decision that he committed the charged

prohibited act was not supported by any evidence. The warden

moves for summary judgment, arguing that at least some evidence

supports the DHO’s decision and, as such, Sanchez’s due process

rights were not violated.1 Doc. no. 9. Sanchez objects. Doc. no.

11. Because the record includes sufficient evidence to support

the charge against Sanchez, the court grants the warden’s motion

for summary judgment.2

1 Prior to filing his summary judgment motion, the warden moved for an extension of time to file his response to Sanchez’s § 2241 petition. Doc. no. 8. Sanchez did not object. The court grants that motion and considers the warden’s summary judgment motion herein.

2 The record suggests that Sanchez anticipated release while this motion was pending, but neither party has provided any such notice. Consequently, the court will render a decision on the merits. 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.

P. 56(a). A material fact is one that “carries with it the

potential to affect the outcome of the suit.” French v. Merrill,

(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.”

The

court construes the record in the light most favorable to the

nonmoving party. Benson v. Wal-Mart Stores East, L.P.,

(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

Sanchez’s petition challenges a disciplinary action against

him and sanction he received resulting from a September 5, 2021

incident report. During a routine search of Sanchez’s cell on

that date, officers found that the wooden pegs on which

prisoners hang their clothes in the cell were loose and that one

of the pegs had a sharpened end. The sharpened peg was 3.5

inches long and had a point on one end. The pegs were in a

common area of the cell where both Sanchez and his cellmate had

2 access to them. As a result, Sanchez was charged with violating

Prohibited Act Code 104, which proscribes the “[p]ossession,

manufacture, or introduction of a gun, firearm, weapon,

sharpened instrument, knife, dangerous chemical, explosive,

ammunition, or any instrument used as a weapon.”

, table 1.

Sanchez denied the charge. The DHO held a hearing on

September 14, 2021, during which Sanchez explained that he had

been in the cell for “a month” and did not know the sharpened

peg was there.3 After the hearing, the DHO found that Sanchez had

violated Code 104. In making the finding, the DHO considered,

among other things, the officers’ statements, a photograph of

the sharpened peg, and Sanchez’s statements.

Sanchez appealed the DHO’s decision on the ground that the

evidence presented was insufficient to support a finding that he

had committed the charged violation. Sanchez argued that the

sharpened peg was never “used” as a weapon. His appeals were

unsuccessful.

Sanchez then filed the instant § 2241 petition, claiming

that the DHO’s decision violated his due process rights.

Although Sanchez’s petition does not address his appeal of the

3 Sanchez’s petition (doc. no. 1 at 9) and the DHO’s report (doc. no. 9-1 at 11) state that Sanchez had been in the cell for 23 days on the date of the incident.

3 DHO’s decision through the Bureau of Prisons’ (“BOP”) grievance

process, he states in his declaration in support of his

objection that he exhausted his administrative remedies. The

warden does not dispute that assertion.

Discussion

The court assumes without deciding that prisoners retain a

liberty interest in GCT and that

remains a

proper vehicle by which to challenge disciplinary proceedings

resulting in the loss of GCT. See, e.g., Francis v. Maloney,

(1st Cir. 2015) (discussing how Pepper v. United

States,

, 501 n.14 (2011) may call into question

whether an 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 v. McDonnell,

(1974) (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”).

The prisoner’s due process right in that context includes a

requirement that the decision revoking GCT is supported by at

least “a modicum of evidence” or, as is more commonly stated,

4 “some evidence.” See Superintendent, Massachusetts Corr. Inst.,

Walpole v. Hill,

(1985). That standard

is minimal and is satisfied by even a meager amount of evidence.

See, e.g., DiGrazia v. Warden, FCI Berlin, No. 22-cv-441-JL,

, at *3 (D.N.H. Dec. 5, 2022) (noting that the

“some evidence” standard is met if there is “‘any evidence in

the record’ in ‘support [of] the conclusion reached’” (quoting

Hill,

)).

The warden seeks summary judgment on the ground that some

evidence supported the DHO’s finding that Sanchez possessed a

weapon, the sharpened peg. In support, he includes with his

motion the declaration of Cheryl Magnusson, a BOP legal

assistant, as well as certain documents, which include a copy of

Sanchez’s Sentence Monitoring Computation Data, his

Admission/Release History, the Incident Report, and the DHO

report.

In his objection, Sanchez argues that the record evidence

is insufficient to show that he violated Code 104. Specifically,

he argues that there was no evidence that he used the sharpened

wooden peg as a weapon and, viewed generously, that he was

unaware that the sharpened peg was in his cell.4 Sanchez filed a

4 Sanchez also appears to challenge the validity of the evidence the warden submitted in support of his summary judgment motion. See doc. no. 11 at 1-6. To the extent that he intended to lodge such a challenge, it is without merit. Further, Sanchez

5 copy of his Central Office Administrative Appeal and his own

declaration in support of his objection.

I. The Prohibited Act

As mentioned, the DHO found that Sanchez committed a

violation of Code 104, which proscribes the “[p]ossession,

manufacture, or introduction of a gun, firearm, weapon,

sharpened instrument, knife, dangerous chemical, explosive,

ammunition, or any instrument used as a weapon.”

, table 1. Sanchez argues that there is no evidence that he

or anyone else used the sharpened peg as a weapon and,

therefore, he cannot have violated Code 104.

Sanchez’s argument is based on a misreading of the relevant

language. Code 104 prohibits the possession of the listed items,

including a sharpened instrument, as well as any instrument used

as a weapon. A violation of Code 104 does not require the use of

a listed instrument as a weapon, but merely the possession of an

item, including a sharpened instrument, that could be used as a

weapon. Therefore, Sanchez cannot prevail on his first argument.

criticizes certain statements the warden made in his motion about the grounds for Sanchez’s administrative appeal.

at 6- 7. Because the warden does not challenge Sanchez’s exhaustion of his administrative remedies, the grounds for the administrative appeal are irrelevant to the court’s analysis.

6 II. Possession

BOP policy requires each prisoner to keep contraband out of

his or her cell, even when the cell is shared with another

prisoner. Denny v. Schultz,

(3d Cir. 2013);

Flannagan v. Tamez,

(5th Cir. 2010). For

that reason, a prisoner is deemed to have constructive

possession of contraband found in a common area of the cell.

Denny,

; accord Jenkins v. Hazlewood, No. 20-cv-

803-PB,

, at *5 (D.N.H. Sept. 29, 2021); Rivera

v. Warden, FCI Berlin, 20-cv-918-JL,

, at *3

(D.N.H. Apr. 22, 2021); see also Bivins v. Williams, No. 22-

1791,

, at *2 (7th Cir. Jan. 13, 2023). Thus,

contraband found in a shared cell is some evidence that a

prisoner who lives in the cell has constructive possession of

the contraband and is sufficient to support the sanction of loss

of GCT. Jenkins,

, at *5 (citing Denny,

and collecting cases).

As is noted above, Code 104 bans the possession of, among

other things, a weapon or a sharpened instrument. There is no

dispute that the sharpened wooden peg was found in a common area

of Sanchez’s cell and that he had access to the peg. Although

Sanchez argues that he did not know the sharpened peg was there,

he is deemed to have had constructive possession of the

sharpened peg. The length of time Sanchez spent in the cell, the

7 fact that the cell was shared with another prisoner, and

Sanchez’s denial of knowledge of the peg do not undermine the

evidentiary consequence of the undisputed fact that the

sharpened peg was in a common area of the cell.

The record provides some evidence that Sanchez possessed a

weapon or sharpened instrument, the sharpened wooden peg, in

violation of Code 104. Therefore, sufficient evidence supports

the DHO’s finding that Sanchez violated Code 104, as charged.

The warden is entitled to summary judgment on Sanchez’s § 2241

petition.

Conclusion

For the foregoing reasons, the warden’s motion for an

extension of time (doc. no. 8) and for summary judgment

(document no. 9) are granted. All other pending motions are

denied as moot.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge May 3, 2023

cc: Fernando Sanchez, pro se. Seth R. Aframe, AUSA.

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