United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
G. KOELTL, DISTRICT JUDGE
Fulton, proceeding pro se, brings this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241
against the respondents Juan Baltazar, former warden at
Federal Correctional Institution in Otisville, New York
("FCI Otisville"), John M. Banks, a Disciplinary
Hearing Officer, Andrew Jones, a former correctional officer
at FCI Otisville, and Ronald L. Rodgers, the Senior Counsel
of the Administrative Remedy Branch in the Central Office of
the Bureau of Prisons ("BOP"),  The petitioner
alleges that a prison disciplinary proceeding, resulting from
a physical altercation between the petitioner and another
inmate, violated his right to due process. The petitioner
requests that the sanctions imposed on him at the hearing be
lifted. In lieu of filing a reply to the respondent's
return to his petition for habeas corpus, the petitioner
moved for summary judgment. For the reasons discussed below,
the petition for habeas corpus and the motion for summary
judgment are denied.
petitioner was incarcerated at FCI Otisville from January 19,
2012, to September 29, 2016, after being convicted of federal
counterfeit currency offenses and a firearms offense.
Scannell-Vessella Decl. ¶¶ 4, 5. The petitioner was
recently transferred to the Federal Detention Center in
Philadelphia, Pennsylvania pursuant to a federal writ for a
resentencing. Id. at ¶ 5.
case arises from a physical altercation at FCI Otisville
between the petitioner and another inmate, Kyle Bell.
According to the report submitted by the Disciplinary Hearing
Officer PDHO"), on the morning of October 8, 2015, the
petitioner and Bell engaged in a verbal disagreement outside
of the petitioner's cell. Banks Decl. Ex D, at
After the verbal exchange, Bell went back to his cell and
then entered the petitioner's cell with a weapon -- a
combination lock attached to a belt. Id. A physical
altercation between the two inmates ensued and both inmates
suffered multiple injuries. Id.
corrections officer who was on duty that morning, Officer
Andrew Jones, observed some of the incident. In a written
statement provided to the Special Investigative Services
Department (the "SIS") Department, Officer Jones
stated that he heard the commotion coming from the
petitioner's cell on the morning of October 8, 2015.
Susney Decl. Ex. A. He then went to the cell and commanded
both inmates to cease their fighting. Id. Before the
inmates complied with his order, Jones witnessed the
petitioner on top of Bell, striking him with the combination
the petitioner and Bell sustained injuries. Banks Decl. Ex.
D, at 3. The DHO report found that petitioner sustained
"a shallow laceration to the left side of [his] scalp,
swelling and abrasion to back of [his] scalp and [a] scratch
on the back" and that "Bell sustained skin tears to
his knuckles, bruising and swelling below his left eye and a
small abrasion to the side of his face near his right
approximately 1:00 p.m. on the same day of the incident, the
petitioner received an administrative detention order
("ADO") indicating that he was being placed in a
Special Housing Unit based on fighting pending investigation
of a violation of BOP Regulations. Scannell-Vessella Decl.
October 23, 2015, the SIS submitted an incident report
charging the petitioner with violations of the BOP's Code
108(possession of a weapon) and Code 201
(fighting). Banks Decl. Ex. A, at 2, 4. The incident report
stated, among other things, that the petitioner and Bell
engaged in a verbal confrontation that escalated into a
fight; that Bell brought a weapon to the fight which was
ultimately obtained by the petitioner and used on Bell; and
that Bell and Fulton both sustained injuries from the
altercation. Id. at 2.
October 26, 2015, the Unit Disciplinary Committee (the
"UDC"} held a hearing on the petitioner's
charges. Banks Decl. Ex. A, at 2. The UDC determined that the
charges against the petitioner as recommended by the SIS
report were warranted based on Officer Jones's statement,
photography evidence, medical reports, and the findings in
the SIS report. Id. at 4. The UDC referred the case
to a DHO for a further hearing because of the "high . .
. severity" of the charges against petitioner. Banks
Decl. ¶ 2, Ex. A, at 2. The petitioner was given notice
of the DHO hearing on the same day, October 26, 2015, and
informed of his rights. Banks Decl. ¶ 3, Exs. B, C.
November 12, 2015, the DHO held a hearing regarding the
charges against the petitioner. Banks Decl. Ex. D. At the DHO
hearing, the petitioner stated: "I was fighting, but I
defended myself." Id. at 2. The petitioner also
stated: "I took the belt from [Bell] and had the lock in
my hand, but didn't use it." Id. The
petitioner also requested to call Officer Jones as a witness
at the DHO hearing. The DHO denied the request because Jones
was an adverse witness and a written statement from Jones was
ruled against the petitioner and imposed sanctions. Banks
Decl. Ex. D, at 3. The sanctions imposed for the Code 104
violation were disciplinary segregation of sixty days,
disallowance of twenty-seven days of good conduct time,
forfeiture of fifty-three days of non-vested good conduct
time, and five months loss of visiting. Id. at 3.
The sanctions imposed for the Code 201 violation were
disciplinary segregation of thirty days (suspended pending
180 days of clear conduct), disallowance of twenty-seven days
of good conduct time, and four months loss of commissary.
Id. The DHO notified the petitioner of his right to
appeal the decision. Id. at 4.
petitioner appealed the DHO decision to the BOP's
Regional Director on or about December 30, 2015.
Scannell-Vessella Decl. ¶ 8, Ex. D, at 2. In his appeal,
the petitioner reasserted that he was not in violation of
Code 201 because he was defending himself against Bell and
also asserted that Jones and other FCI administrators
"lie[d], falsif[ied] and tamper[ed]" with the
evidence relating to the incident. Id. at 2-3. The
petitioner further contended that he was not in violation of
Code 104, possession of a weapon, because "Mr. Bell . .
. is the manufactor [sic] and owner of the weapon in
question." Id. at 3.
Regional Director ruled against the petitioner.
Scannell-Vessella Decl. Ex. D, at 4-5. The Regional Director
found that the DHO decision was reasonable in light of the
evidence. Id. Additionally, the Regional Director
found that the petitioner's claims of falsification by
Jones and the FCI administrators were not credible because
nothing in the video surveillance or evidence undermined the
officers' credibility or contradicted their findings.
Regional Director also found that both of the
petitioner's defenses to the substantive charges had no
merit. Id. at 4-5. As to the Code 201 infraction
(fighting), the Director determined that defending oneself
with physical force is not a defense to the charge of
fighting. Id. at 5. The Director stated that an
inmate facing an assault should not engage in a fight but
should instead report the incident to the prison staff.
Id. As to the Code 104 infraction (possession of a
weapon), the Director found that the fact that ...