In Denny v. Schultz, Docket No. 11-1450 (3d Cir. Feb. 15, 2013), the Third Circuit considered the question of what limit the Due Process Clause places on the constructive possession theory in the prison context. Inmate Denny shared a cell with one other inmate. During a routine search of the cell, a corrections officer found two metal shanks located in the duct work of a ceiling vent. The duct was accessible from both Denny's cell and the adjacent cell, which housed an additional three inmates. Denny and his cell mate were both charged with possession of a weapon, but the inmates in the adjacent cell were not charged. Denny was sanctioned and received sixty days in disciplinary segregation and the forfeiture of forty days good time credit.
After exhausting his administrative remedies, Denny filed a 28 U.S.C. § 2241 petition. The district court sua sponte dismissed the petition, finding that the Disciplinary Hearing Officer's (DHO) findings were supported by "some evidence," including the fact that the contraband weapons were found in the duct work of Denny's assigned cell (citing Superintendent v. Hill, 472 U.S. 445, 454 (1985)). Denny appealed.
On appeal, the Third Circuit agreed that the "some evidence" standard applied and that it need only find that the DHO's decision had "some basis in fact" in order to affirm the decision as comporting with the Due Process Clause. The Court then noted that other courts to have considered this question have uniformly held that the discovery of contraband in a shared cell constitutes "some evidence" of possession sufficient to uphold a prison disciplinary sanction, including the loss of good time credits, against each inmate in the cell under a theory of collective responsibility or collective guilt. Applying this theory, the Court concluded that the undisputed discovery of two shanks in a space accessible within Denny's cell constituted "some evidence" that Denny possessed the weapons in question. Accordingly, the DHO did not violate Denny's due process rights by finding he had committed the prohibited act and sanctioning him with a loss of good time credit.
Judge Rendell filed a dissenting opinion, arguing that constructive possession required either the exercise of dominion or control, or the power and intention to exercise dominion or control, over the property. Because such evidence was absent, Judge Rendell would have reversed the district court's sua sponte dismissal of Denny's habeas petition and remanded for resolution on the merits.