                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-18-2006

David v. DeRosa
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4131




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Recommended Citation
"David v. DeRosa" (2006). 2006 Decisions. Paper 1252.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1252


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                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                      NO. 05-4131
                                    ________________

                                    SHMUEL DAVID,

                                                  Appellant

                                             v.

                           C.J. DeROSA, Warden, FCI Fort Dix

                       ____________________________________

                     On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 04-cv-02098)
                       District Judge: Honorable Robert B. Kugler
                             __________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 14, 2006

    Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES

                                  (Filed April 18, 2006)
                                   _________________

                                       OPINION
                                   _________________


PER CURIAM

       Appellant Shmuel David, a federal prisoner incarcerated at the Federal

Correctional Institution at Fort Dix, New Jersey, is serving a term of imprisonment of 30

years, a sentence imposed in United States District Court for the District of
Massachusetts. Assuming he receives all good conduct time available to him under 18

U.S.C. § 3624(b), his projected release date is July 10, 2014. In May 2002, David was

charged with a misconduct for threatening a food service officer with bodily harm, a

violation of Code 203.1 David asserts that he was given an ice cream sandwich by one

food service officer, and it quickly was taken from him by a different food service officer

because he was not supposed to have it. David explained to the second food service

officer that he was rightfully in possession of the item, at which point the second officer

expressed surprise that David was “snitching” on the first officer. David evidently took

offense at being called a “snitch” in front of other inmates and committed the complained

of conduct, which included raising his voice and his fists.

       David received a disciplinary hearing and was adjudicated guilty. The

Disciplinary Hearing Officer (“DHO”) imposed the following sanctions: 30 days

disciplinary segregation, 27 days loss of good conduct time and a recommendation

(suspended pending 180 days clear conduct) for a disciplinary transfer. David appealed

the DHO’s decision to the Bureau of Prisons Northeast Regional Office, but the appeal

was rejected as untimely. He appealed the decision of the Regional Office to the Central

Office, unsuccessfully.

       David filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in


  1
    A chart listing the various code offenses or prohibited acts within the Bureau of
Prisons inmate disciplinary system and describing the available sanctions is found at
Table 3 of 28 C.F.R. § 541.13. Sanctions are also addressed in Tables 4 and 5 of 28
C.F.R. § 541.13.
                                             2
United States District Court for the District of New Jersey, in which he contended that he

did not have an adequate opportunity to prepare his defense because he did not meet with

his staff representative until the hearing, his staff representative was not impartial, the

staff representative failed to produce witnesses to testify on his behalf, the disciplinary

action was a sham to cover up the food service officer’s misconduct in calling him a

snitch, and the evidence did not support the DHO’s finding because the food service

officer’s statement contained contradictions. The government answered the complaint on

the merits and waived the procedural default defense available under Moscato v. Federal

Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996).

       In an order entered on August 19, 2005, the District Court denied the habeas

petition. As a threshold matter, the court construed David’s assertions as a proper

challenge to the constitutional adequacy of his disciplinary procedures at FCI Fort Dix,

which resulted in loss of good time credits and a resulting effect on the execution of his

sentence. The procedural due process protections afforded by Wolff v. McDonnell, 418

U.S. 539 (1974), apply only when a prisoner’s constitutional interests are implicated.

Sandin v. Connor, 515 U.S. 472, 487 (1995). With respect to his disciplinary

confinement, David lacked the requisite constitutional interest, because it was not an

“atypical and significant hardship ... in relation to the ordinary incidents of prison life.”

Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (quoting Sandin, 515 U.S. at 484).

       With respect to loss of good time credit, the District Court concluded that David

was entitled to: (1) an impartial decision-making body; (2) twenty-four hour advance

                                               3
written notice of the charges; (3) an opportunity to call witnesses and present

documentary evidence; (4) assistance from a representative; and a written decision

explaining the evidence relied upon. Wolff, 418 U.S. at 563-67. In addition, the decision

had to have support, but only by “some” evidence in the record. Superintendent v. Hill,

472 U.S. 445, 454 (1985). Applying these principles, the court concluded that David was

afforded due process. He received written notice well before the disciplinary hearing, he

was advised of his rights and he requested a staff representative, and Counselor J.

Williams represented him, and he provided a statement in his own behalf. The DHO also

considered evidence from the two food service officers. A written decision was issued in

which the DHO explained that David’s testimony was self-serving and that the act of

threatening another was committed as charged. Moreover, David had not substantiated

his charge that the process was not impartial.

       We will affirm. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

In reviewing a federal habeas judgment, we exercise plenary review over a district court's

legal conclusions and apply a clearly erroneous standard to its findings of fact. See Rios

v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000). Although the issue in David’s appeal

contains some elements of a factual nature, the inquiry is essentially legal in nature, and

we therefore exercise plenary review over the District Court's conclusions regarding this

matter. Id.

       We have carefully reviewed the record and David’s contentions on appeal. We

agree with the District Court, for the reasons given, that he received notice, an adequate

                                              4
opportunity to present his case, adequate assistance from a staff member, and a written

decision. We agree that he did not substantiate his charge of an impartial tribunal. Wolff,

418 U.S. at 563-572. In addition, there was some evidence to support the DHO’s

conclusions, including David’s admissions, and the eyewitness accounts. Id. at 564-65;

Hill, 472 U.S. at 455-56.2 David has argued on appeal that the evidence was disputed, but

the Hill standard is minimal and does not require an independent assessment of the

credibility of witnesses or even a weighing of the evidence. Thompson v. Owens, 889

F.2d 500, 502 (3d Cir. 1989). Therefore, the District Court properly rejected David’s due

process claim on the merits.

       We will affirm the judgment of the District Court.




  2
     In denying David’s appeal, the Warden explained that the threatening behavior was
not justified even assuming that the snitch remark was made, and we agree.
                                            5
