UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Armani Cummings, Petitioner

v. Case No. 22-cv-468-SM-AJ Opinion No.

Warden, Federal Correctional Institution, Berlin, Defendant

O R D E R

Armani Cummings, a self-represented federal prisoner, filed

a petition for a writ of habeas corpus (document no. 1) while

incarcerated at the Federal Correctional Institution in Berlin,

New Hampshire (“FCI Berlin”). See generally

.

He seeks to expunge a disciplinary violation from his prison

record and restore twenty-seven days of Good Conduct Time

Credits (“GCT”) that were taken away as a sanction.

Before the Court is Armani’s petition and the respondent

warden’s dispositive motion (document no. 8), styled as a Rule

12(b)(6) motion to dismiss. On January 18, 2024, the court

converted that motion into one for summary judgment and afforded the parties the opportunity to expand the record. See Fed. R.

Civ. P. 12(d). Cummings objects to that motion.

On February 14 and 16, 2024, Magistrate Judge Johnstone

held oral argument on the claims in the petition and the

government’s motion for summary judgment. The Court has

reviewed the record of that proceeding. The matter is fully

briefed and suitable for resolution without an evidentiary

hearing, as the pertinent facts are not in dispute. For the

reasons that follow, the court denies Cummings’ petition and

grants the government’s converted motion for summary judgment.

Standard of Review

Habeas corpus relief pursuant to

is

appropriate if a person is “in custody in violation of the

Constitution or laws or treaties of the United States.”

(c)(3). A petition seeking such relief may be

resolved on the merits without a hearing when, as here, the

material facts are not in dispute. See

; see

also Rule 8(a) of the Rules Governing § 2254 Cases, Adv. Comm.

Notes to 1976 Adoption. Petitioner bears the burden to prove

that his continuing detention violates his federal rights.

See Espinoza v. Sabol,

(1st Cir. 2009).

2 When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,

(1st Cir. 2016) (citation omitted). And, in

light of the petitioner’s pro se status, the court has construed

his pleadings liberally. See Dutil v. Murphy,

(1st Cir. 2008).

Summary judgment is appropriate when the record reveals “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). In this context, a factual dispute “is ‘genuine’ if the

evidence of record permits a rational factfinder to resolve it

in favor of either party, and ‘material’ if its existence or

nonexistence has the potential to change the outcome of the

suit.” Rando v. Leonard,

(1st Cir. 2016)

(citation omitted). Where a genuine dispute of material facts

exists, such a dispute must be resolved by a trier of fact, not

by the court on summary judgment. See, e.g. Kelley v. LaForce,

(1st Cir. 2002).

3 Background

On March 6, 2022, FCI Berlin Food Service staff found

several Informal Resolution Remedy Forms (known as “BP-8 Forms”)

in the dining area and reported the discovery to Corrections

Officer Scott Tawes. The BP-8 forms are documents inmates use

to initiate the grievance process and by which they informally

communicate matters of concern about the conditions of their

confinement. See generally

(a). See also

United States v. Austin, No. 18-cr-102-SE,

,

, at *3 n.3 (D.N.H. Nov. 7, 2023).

Following his investigation into the matter, Officer Tawes

prepared an Incident Report, which provided as follows:

On March 06, 2022 . . . [CO Tawes] was notified by Food Service staff they had located several BP-8 informal resolution remedy papers. Upon review of the BP-8s [CO Tawes] observed there were nine written with the exact same verbiage. Based on the review of video [CO Tawes] was able to identify Inmate Cummings, Armani, #91815-054 as the inmate who was in possession of the BP-8’s.

The BP-8’s were in regards to FCI Berlin blocking TV-MA shows on the Starz network. Based on the mass produced BP-8’s, inmate Cummings was attempting to encourage other inmates to participate in a group demonstration in order to get Starz TV-MA shows un- blocked.

Doc. No. 1-1, at 1 (emphasis supplied). Officer Tawes concluded

that Cummings obtained nine copies of the BP-8 form and

4 completed each one with identical language complaining about the

prison’s television policy. The sections of those BP-8 forms in

which a prisoner fills in his name, Federal Bureau of Prisons

(“BOP”) identification number, and signature, were all blank

(although those forms are not before the court, all agree on

this point).

The specific conduct in which Cummings engaged is not

explicitly banned by BOP regulations. So, Officer Tawes charged

Cummings with violating BOP Prohibited Act Code (“Code”) 299.

Code 299 encompasses any conduct that, “disrupts or interferes

with the security or orderly running of the institution or the

Bureau of Prisons [and that is] most like another High severity

prohibited act.” Prohibited Acts and Available Sanctions, High

Severity Level Prohibited Acts,

, table 1.

That regulation goes on to provide that “This charge is to be

used only when another charge of High severity is not accurate.

The offending conduct must be charged as ‘most like’ one of the

listed High severity prohibited acts.”

Here, Officer Tawes

concluded that Cummings’ conduct was “most like” the prohibited

5 act of “engaging in or encouraging a group demonstration” - a

Code 212 violation. See

1

Additionally, based upon Cummings’ unauthorized possession

of nine BP-8 Forms, Officer Tawes also charged him with a

violation of Code 305: “possession of anything not authorized

for retention or receipt by the inmate, and not issued to him

through regular channels.” Prohibited Acts & Available

Sanctions, Moderate Severity Level Prohibited Acts,

, table 1. Cummings received notice of the Incident Report

on March 6, 2022, and a hearing before a Disciplinary Hearing

Officer (“DHO”) was conducted on March 18, 2022.

At the hearing, the following evidence was presented to the

DHO: nine identical, partially-completed BP-8 forms found in the

food service area; the video footage showing Cummings in

possession of those forms; Officer Tawes’s Incident Report; and

Cummings’s statement at the hearing that, “I had the BP-8. I

was only giving it to one person. I wasn’t trying to cause a

disruption.” March 18, 2022, DHO Report (document no. 1-2, at

1). Based upon that evidence, the DHO concluded that Cummings

1 Prohibited acts are categorized according to their severity. Code Level 100 prohibited acts are deemed the “Greatest Severity,” (e.g., killing, setting a fire, or escape), Code Level 200’s are “High Severity,” Code level 300’s are “Moderate Severity,” and Code Level 400’s are “Low Severity” prohibited acts. See generally

.

6 committed the Code 299/212 offense. The DHO then replaced the

Code 305 charge with a Code 314 charge (which prohibits the

unauthorized reproduction of any official paper) “to better

represent the incident,” and found the petitioner had violated

Code 314, as well. Id. at 2. Specifically, the DHO concluded

that:

The DHO informed you that program statement 1330.18 Administrative Remedy Program specifically reads: “The purpose of the Administrative Remedy Program is to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement. An inmate may not submit a Request or Appeal on behalf of another inmate.” By making unauthorized photocopies, Inmate Cummings is not only violating the Administrative Remedy Program, but is attempting to distribute the unauthorized copies to at least nine other inmates in order to promote others to participate and gather together to support a cause, specifically getting Starz channel movies that are “TV-MA” rated to be unblocked.

DHO Report, Doc. No. 1-2, at 3 (emphasis supplied).

For the “High Severity” Code 299/212 offense, the DHO

sanctioned Cummings with, among other things, revocation of

twenty-seven days of good conduct time. For the “Moderate

Severity” Code 314 violation, the DHO imposed a two-month loss

of commissary privileges. Id.

7 Cummings appealed the DHO’s decision using the BOP’s

administrative process. His administrative appeals were denied.

Here, Cummings argues, as he did in his administrative appeals,

that there was insufficient evidence to support the guilty

finding on the Code 299/212 offense, upon which his loss of GCT

was based. See Doc. No. 1, at 2. He also claims that there was

insufficient evidence to support a finding that he was guilty of

a Code 305 violation (possession of contraband). But, as noted

above, the DHO did not find Cummings guilty of a Code 305

violation. Instead, he was found guilty of a Code 314 violation

(unauthorized reproduction of an official document).

Consequently, Cummings’ arguments on that latter point are off

the mark.

More importantly, however, the DHO imposed a loss of Good

Conduct Time Credit exclusively for the “High Severity” Code

299/212 violation. “While the Due Process Clause protects

against the revocation of good-time, it does not provide the same

level of protection against the imposition of other forms of

discipline.” Reynolds v. Williamson,

(3d

Cir. 2006). Disciplinary sanctions that have no impact on the

fact or length of confinement cannot be challenged under § 2241.

Id. (six month loss of commissary privileges did not invoke due

process protections). Cummings’ arguments regarding the lack of

8 evidence to support a Code 305 violation, as well as his

arguments regarding the DHO’s decision to convert the Code 305

violation into a Code 314 offense, do not provide any grounds for

relief under

. Accordingly, the court will focus

solely on Cummings’ claims arising out of his conviction of the

Code 299/212 offense.

Discussion

I. Jurisdiction

As a preliminary matter, there is arguably a question about

whether this court retains jurisdiction over Cummings’ 2241

petition because, after he filed it, the BOP transferred Cummings

to a federal prison facility in Kentucky. And, under § 2241(a),

the “court issuing the writ [must] have jurisdiction over the

custodian.” Rumsfeld v. Padilla,

(2004)

(citation and internal punctuation omitted). Consequently, the

BOP’s recent transfer of Cummings to a different federal prison

outside of New Hampshire raises the question of whether this

court has been divested of jurisdiction to grant any relief,

since the petitioner’s immediate custodian is now an out-of-

district warden.

The Court of Appeals for the First Circuit has yet to

address that specific issue. But, several judges in the

9 Districts of Massachusetts and New Hampshire have considered the

matter in the context of motions to dismiss for lack of

jurisdiction filed by a respondent Warden, after the BOP

transferred a petitioner from federal facilities in those

districts to federal prisons elsewhere. See, e.g., Yancey v.

Warden, FMC Devens, No. 22-cv-11790-DLC,

(D.

Mass. July 7, 2023); accord Jones v. FCI Berlin, No. 21-cv-767-

SE,

,

(D.N.H. Feb. 22, 2023). The

issue has also been addressed and resolved by several courts of

appeals in other circuits. See, e.g., In re Hall,

,

378-79 (7th Cir. 2021); Lennear v. Wilson,

, 263 n.1

(4th Cir. 2019); Johnson v. Gill,

(9th Cir.

2018); Pinson v. Berkebile,

(10th Cir.

2015); see also Anariba v. Dir. Hudson Cnty. Corr. Ctr.,

, 447 (3d Cir. 2021) (jurisdiction over § 2241 petition

remained in district court when detainee filed post-judgment

motion to reopen after he had been transferred to out-of-district

detention facility). See generally Rumsfeld v. Padilla,

(2004); Ex parte Endo,

(1944). All agree that a

district court need not dismiss a section 2241 habeas petition

upon the petitioner’s transfer, so long as jurisdiction properly

attached in the first instance and provided the BOP, operating

through the respondent Warden in his official capacity, remains

present in the district.

10 There is, then, substantial persuasive authority supporting

the conclusion that the court retains jurisdiction over Cummings’

petition, despite his recent transfer to another district. This

court (Elliot, J.) recently reached the same conclusion. See Fox

v. Warden, FCI Berlin, No. 21-cv-158-SE,

,

(D.N.H. Apr. 11, 2022). The reasoning in Fox is thorough

and persuasive. It need not be recounted. It is sufficient to

note that this court agrees. As in Fox, the court properly

acquired jurisdiction over the section 2241 petition when it was

filed in this district and named as respondent the petitioner’s

immediate custodian at the time. Despite BOP’s subsequent

transfer of Cummings to another district, “jurisdiction remains

with this court and the court may direct the writ to any

respondent within its jurisdiction who has legal authority to

comply with any order that may issue.” Fox,

at

*3.

II. Cummings’ Disciplinary Proceedings

Prisoners have a protected liberty interest in their Good

Conduct Time Credits, which affords them certain due process

protection in disciplinary proceedings before those credits can

be reduced. See Sup’t, Mass. Corr. Inst. v. Hill,

(1985); Wolff v. McDonnell,

(1974).

11 The minimum procedural due process requirements for prison

disciplinary hearings affecting GCT 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 of the evidence relied on

and reasons for the decision. See Surprenant v. Rivas,

(1st Cir. 2005); Wolff,

.

In the context of a 2241 petition challenging a prison’s

disciplinary decision, this court’s review is highly

deferential. Such a decision must be sustained if the

Disciplinary Hearing Officer’s finding is supported by “some

evidence in the record.” Hill,

.

This standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.

(citations and internal punctuation omitted).

Factual support for the disciplinary decision may be “meager”

and there may be a dearth of “direct evidence” supporting it.

. Nevertheless, the DHO’s decision must be sustained

12 so long as “the record is not so devoid of evidence that the

findings of the disciplinary board were without support or

otherwise arbitrary.”

Plainly, then, Cummings’ efforts to

overturn the finding that he committed a Code 299/212 violation

face a decidedly uphill battle.

Cummings does not claim that his procedural due process

rights were violated, but instead asserts that the evidence

presented at the DHO hearing was insufficient to satisfy the

“some evidence” standard. Specifically, he claims that “there is

no evidence in the record that he disrupted or interfered with

the security or orderly running of the institution.” Petition at

1 (paraphrasing the language describing a Code 299 violation).

Indeed, says Cummings, inmates are explicitly permitted to assist

other inmates in preparing a request or an appeal. See

. So, in Cummings’ view, not only was his conduct not

prohibited, it was actually authorized in so far as he was merely

“assisting” other inmates in preparing BP-8 Forms complaining

about the prison’s television policy - all in a non-disruptive

manner. The court disagrees.

There is, however, a meaningful difference between the

language of the regulation upon which Cummings relies and his

interpretation of it. That regulation states, in pertinent part,

13 that “an inmate may obtain assistance from another inmate . . .

in preparing a Request or an Appeal.”

(a).

That language contemplates situations in which an inmate wishes

to file a specific request (or appeal) but does not feel fully

capable of doing so without help. In those circumstances, the

inmate may seek out and obtain assistance from another inmate.

Cummings, however, does not claim to have been responding to any

particular inmate’s request for assistance, nor does he claim to

have offered assistance to an inmate seemingly in need. Instead,

he improperly obtained and then prepared - in bulk - inmate

request forms seeking to advance an issue of interest to him by

encouraging other inmates to join in parallel, but still

concerted, activity. That conduct crossed the line from merely

“assisting another inmate” in filing a request or appeal and

ventured into the realm of attempting to organize a group or

collective action against a particular prison policy.

Cummings’ claim that his conduct was not actually

disruptive (and, therefore, not violative of Code 299) also

misses the point. The pertinent regulations make clear that

actual disruption or interference with the orderly

administration of the facility need not have occurred before a

violation can be found. See

(a) (“Aiding,

attempting, abetting, or making plans to commit any of the

14 prohibited acts is treated the same as committing the act

itself.”). So, it is sufficient to sustain Cummings’

disciplinary conviction if he attempted or made plans to engage

in conduct that would result in a Code 299/212 violation - that

is, if he attempted to, or planned to engage in conduct that

would disrupt the security or orderly running of the prison by

organizing or encouraging something “like” a group

demonstration. That Cummings’ conduct may not have gone so far

as to have actually disrupted or interfered with prison

operations is immaterial. So, too, is his claim that he did not

“intend” to cause a disruption. The relevant inquiry is whether

there is some evidence: (a) that Cummings prepared the multiple

identical BP-8 Forms as part of a plan to have other inmates

submit them to the prison’s grievance system as part of a joint

effort to challenge a prison policy; and (b) that, if

successful, Cummings’ plan could have disrupted or interfered

with the security or orderly running of the prison. There is.

See generally Bliss v. Sauers, No. 3:CV-13-1958,

, at *3 (M.D. Pa. Sept. 13, 2013) (“Any negatively

intended group action in a prison setting promotes potential

unrest and violence.”); Brooks v. Pearson,

(5th Cir. 2011) (upholding DHO’s conclusion that “when inmates

attempt to organize or represent other inmates, things have a

15 tendency to escalate and potentially turn into riots or work

stoppages.”).

Cummings’ charged conduct was not unlike that in Lora v.

Outlaw, No. 04-2923-JDB/TMP,

, at *2 (W.D. Tenn.

May 16, 2008). In Lora, the inmate was concerned about rumored

changes to the prison’s housing policy and the possibility that

inmates might be triple-bunked. The Associate Warden reportedly

told inmates they could challenge such a policy change through

the administrative remedy process. Lora, like Cummings, then

took it a step too far. He made multiple copies of a document

complaining about the housing policy and made those documents

available to other inmates to submit to prison staff as an

attachment to their individual BP-8 Forms. Lora, like Cummings,

was charged with, and convicted of, a Code 299/212 violation for

having “made multiple copies of BP-8’s concerning triple bunking

at FCI Gilmer, and told as many inmates as would take them, to

submit them to their unit team.” Id, at *2. In support of that

finding, the DHO concluded that:

These actions were disrupting the security and orderly running of the institution due to inmates becoming enticed and agitated over the possibility of being triple bunked.

* * *

16 Therefore, the DHO finds that you violated Code 299(212), Conduct which Disrupts the Security and Orderly Running of the Institution most like Encouraging a Group Demonstration.

In finding that Lora’s conviction of a Code 299/212

violation was adequately supported, the district court concluded

that, “[w]hile any individual inmate was permitted to use the

administrative remedy process or the courts to challenge the

policy, the Associate Warden’s statement [encouraging inmates to

use the administrative remedy program] did not grant Lora carte

blanche to draft, photocopy, and distribute multiple BP8s in an

attempt to orchestrate a demonstration or class action by fellow

inmates.”). Id. at *3.

Reasonable minds might well disagree about whether Cummings’

conduct, such as it was, should have resulted in the loss of Good

Conduct Time Credits. To those looking from the outside in,

Cummings misconduct was, perhaps, comparably minor and his

subjective intent may not have been aimed at organizing some form

of group resistance or causing disruption. But, to those charged

with maintaining the orderly administration of a penal facility,

that conduct was not so minor. The evidence of record fully

supports the conclusion that Cummings impermissibly made (or

obtained) nine copies of the BP-8 Form and completed each with

identical language describing a uniform (collective) complaint

17 about a specific prison policy. It is also fair and reasonable

to infer that Cummings planned to distribute those partially-

completed forms to other inmates in an effort to garner group

support for his efforts to change the prison’s television policy.

A plausible and sustainable interpretation of that evidence is

that Cummings was attempting to initiate group or class action

aimed at changing the prison’s television policy - conduct

plainly “like” engaging in or encouraging a group demonstration

against that policy. In the prison setting, conduct of that sort

certainly has the potential to be disruptive. The DHO’s

determination that Cummings’ conduct violated Code 299/212 is

amply supported in the record.

Conclusion

There is a meaningful difference between simply assisting

another inmate in preparing his informal grievance slip and

actively trying to recruit a group of inmates to form together to

collectively file identical grievances on an issue of particular

concern to the organizing inmate. Cummings engaged in the latter

and such conduct is prohibited.

For the foregoing reasons, as well as those set forth in the

government’s legal memorandum (document no. 8-1), Cummings’

petition for habeas corpus relief (document no. 1) is denied and

18 the government’s motion for summary judgment (document no. 8) is

granted. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

March 25, 2024

cc: Armani Cummings, pro se Heather Cherniske, Esq.

19