by Dale Chappell
The Bureau of Prisons’ (BOP) violation of its own alcohol policy prompted the expungement of disciplinary reports and reversal of sanctions imposed on two prisoners after they challenged their disciplinary convictions in court.
On March 11, 2017, guards at FCI Marianna in Florida conducted mass alcohol testing of an entire housing unit, supposedly based on information there was alcohol in that area. Guards went room to room and tested every prisoner, locking up those who tested positive for alcohol and charging them with a 112-series disciplinary violation.
Two of those prisoners were Jon Bartlett and Neal Jowers, who both tested positive for alcohol. Bartlett’s test showed a BAC level of 0.013, while Jowers’ was 0.008.
Placed in handcuffs, they were taken to segregation and, after a hearing before a disciplinary officer, were kept in segregation for 21 days plus the time they waited for the hearing. They also lost numerous privileges, including visits, commissary and their jobs, and were placed in “least preferred housing” – a three-man cell designed for only two – once they were released from segregation. They also were put on the BOP’s “hot list,” which requires more frequent random drug and alcohol testing. The hardest hit, however, was the loss of 41 days of good conduct time (GCT).
Following his release from segregation, Bartlett saw an October 2017 post on an electronic bulletin board regarding the prison’s alcohol policy. The policy, written in May 2017, called for an alcohol violation if a prisoner’s BAC level was “0.02 or higher.” That level corresponds with the national BOP policy that has been in place since at least 1996.
Bartlett then asked several guards about the policy, and they all told him the policy was “zero tolerance” – which they said meant no BAC reading whatsoever was allowed. The senior lieutenant who signed off on Bartlett’s disciplinary report said there was a certain minimum level, but had the decimal in the wrong place. He said it was “point zero zero two ... you know, in the thousands.” Not a single BOP employee questioned by Bartlett knew the actual alcohol policy at the facility.
Although his administrative remedy was filed just days after the alcohol policy was posted on the electronic bulletin board at FCI Marianna, the BOP’s Regional Office summarily dismissed his appeal as untimely, since he filed beyond the 20 days allowed to challenge the disciplinary report. The denial did not address Bartlett’s claim that BOP staff did not know their own policy. The Central Office, citing the Regional Office’s reasoning, denied Bartlett’s appeal in a single sentence. He then filed a habeas petition in the U.S. District Court for the Northern District of Florida.
Bartlett claimed in his petition that the BOP had violated his rights when it arbitrarily took 41 days of GCT when he had not in fact violated the prison’s rules. He argued the loss of GCT, even after he had notified the BOP that he did not violate the alcohol policy, was a violation of his right to due process.
Bartlett pointed out that the BOP staff’s erroneous assumption that “zero tolerance” meant no BAC level whatsoever was contradicted by the BOP’s own policy. Indeed, the policy for staff alcohol violations specifies a BAC level of “less than .02” – the same standard for other federal employees as well as prisoners.
The district court ordered the BOP to respond to the petition and, on May 10, 2018, the government did so, advising the court that the BOP had expunged the disciplinary report and restored Bartlett’s 41 days of GCT. The government then asked the court to dismiss the case as moot since no other remedy was available.
Bartlett objected, arguing the case was not moot and the court should enter an order granting his habeas petition. He pointed out that the BOP could still repeat the erroneous alcohol violation against other prisoners, as it had not indicated it had taken steps to remedy the problem by advising staff of the correct alcohol policy and BAC levels.
Another reason the case was not moot was that it took a filing in federal court to prompt the BOP to address the problem; the administrative remedy process was insufficient. In fact, it was useless. Without a court order, the BOP would be free to return to its old ways again and again, Bartlett argued.
Jowers, who had scored even lower than Bartlett on the alcohol test, filed a similar habeas petition and the BOP also restored his 41 days of GCT in response.The government similarly sought the dismissal of Jowers’ petition.
Unfortunately, in August 2018, the district court dismissed Bartlett’s habeas petition, holding it was moot after the BOP had expunged the disciplinary conviction and reinstated the GCT it had taken. See: Bartlett v. Warden, U.S.D.C. (N.D. Fla.), Case No. 5:18-cv-00049-MCR-EMT. Jowers’ petition remains pending. See: Jowers v. Warden, U.S.D.C. (N.D. Fla.), Case No. 5:18-cv-00053-MCR-MJF.
While the court in Bartlett’s case did not issue an order that other BOP prisoners can cite as precedent in similar cases, there is now a roadmap they can use to challenge disciplinary charges based on the BOP’s violation of its own alcohol policy.
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Related legal cases
Bartlett v. Warden
|Cite||U.S.D.C. (N.D. Fla.), Case No. 5:18-cv-00049-MCR-EMT|
Jowers v. Warden
|Cite||U.S.D.C. (N.D. Fla.), Case No. 5:18-cv-00053-MCR-MJF|