 BLD-139                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 10-1033


                                  CLARENCE HICKS,
                                         Appellant

                                            v.

                             JOHN YOST, Warden;
                      HARLEY G. LAPIN, Cent. Office Director;
                         SCOTT DODRILL, Reg. Director


                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 3-09-cv-00123)
                       District Judge: Honorable Kim R. Gibson


                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 4, 2010

             Before: McKEE, RENDELL and CHAGARES, Circuit Judges

                                  (Filed: April 22, 2010)


                               OPINION OF THE COURT


PER CURIAM

       Pro se appellant Clarence Hicks is a federal prisoner incarcerated at FCI-Loretto.

In July 2008, during a pat down search, prison officials found a cell phone hidden in the
waistband of his underwear. A prison incident report was subsequently issued, charging

him with possession, manufacture, or introduction of a hazardous tool, in violation of

Federal Bureau of Prisons (“BOP”) Prohibited Acts Code 108. See 28 C.F.R. § 541.13

tbl.3. Following a disciplinary hearing, the hearing officer found Hicks guilty of the

charged offense and imposed sanctions that included a loss of forty days good conduct

time. Hicks sought administrative review of that decision, but his appeals were denied.

       In May 2009, Hicks filed a habeas petition pursuant to 28 U.S.C. § 2241 in the

District Court against FCI-Loretto Warden John Yost, BOP Central Office Director

Harley Lapin, and BOP Regional Director Scott Dodrill (hereinafter collectively referred

to as “Appellees”). Hicks filed an amended petition a few weeks later. In support of his

petition, Hicks appeared to claim that the sanctions imposed against him violated his due

process rights and other constitutional provisions because Code 108 did not explicitly

refer to, or otherwise apply to, cell phones. The District Court referred the petition to a

Magistrate Judge, who issued a report recommending that the court deny the petition on

the merits. In December 2009, the District Court entered an order adopting the

Magistrate Judge’s report and denying Hicks’s petition. Hicks now appeals from that

order,1 and Appellees have moved to summarily affirm.


       1
       We have jurisdiction pursuant to 28 U.S.C. § 1291, and may affirm the District
Court’s judgment on any basis supported by the record. See Tourscher v. McCullough,
184 F.3d 236, 240 (3d Cir. 1999). Hicks properly brought his challenge to the loss of
good conduct time under § 2241, see Queen v. Miner, 530 F.3d 253, 254 n.2 (3d Cir.
2008), and he need not obtain a certificate of appealability to proceed with this appeal.
See United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc).

                                              2
        Code 108 prohibits “[p]ossession, manufacture, or introduction of a hazardous tool

([t]ools most likely to be used in an escape or escape attempt or to serve as weapons

capable of doing serious bodily harm to others; or those hazardous to institutional security

or personal safety; e.g., hack-saw blade).” 28 C.F.R. § 541.13 tbl.3. In an October 2006

memorandum to the FCI-Loretto inmate population,2 Warden Yost stated that “[i]nmates

in possession of cell phones pose a serious threat to the security and orderly running of

the institution,” and that “any inmate found in possession of an electronic communication

device or related equipment . . . may be charged with a violation of Code 108 . . . .”

        Contrary to what Hicks appears to argue, the absence of the term “cell phone” in

the text of Code 108 did not prevent the BOP from interpreting that provision to include

this item. Moreover, Hicks has not shown that the BOP’s interpretation of Code 108 is

plainly erroneous or inconsistent with that provision. See Chong v. Dist. Dir., INS, 264

F.3d 378, 389 (3d Cir. 2001) (“An agency’s interpretation of its own regulation is

‘controlling . . . unless it is plainly erroneous or inconsistent with the regulation.’”

(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945))). We have

considered Hicks’s remaining arguments and conclude that they are without merit.

        Because this appeal does not present a substantial question, Appellees’ motion is

granted and we will summarily affirm the District Court’s judgment. See 3d Cir. LAR

27.4; 3d Cir. I.O.P. 10.6.




        2
         According to Appellees, Hicks has been incarcerated at FCI-Loretto since March
2005.

                                               3
