Gonzalez-Lozano v. Merlak

Filing 25

ORDER ADOPTING IN FULL THE REPORT AND RECOMMENDATION 20 and the Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED and DISMISSED WITH PREJUDICE. The Clerk of Court shall enter judgment accordingly. (See document for further details). Signed by Senior Judge Roslyn O Silver on 10/8/14. (LAD)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Alberto Angel Gonzalez-Lozano, Petitioner, 9 10 ORDER v. 11 No. CV-13-01006-PHX-ROS Conrad Graber, 12 Respondent. 13 Petitioner Alberto Angel Gonzalez-Lozano had two incidents where he was caught 14 without his pants on. Based on the second incident, he was found guilty of “stalking” and 15 punished with, among other things, the loss of good time credit. Magistrate Judge 16 Michelle H. Burns recommends denial of Petitioner’s challenge to the violation and 17 sanction. 18 Judge’s recommendation will be adopted in full. 19 I. Standard of Review for Report and Recommendation Petitioner filed objections but, for the following reasons, the Magistrate 20 A district judge “may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). The district court 22 must review de novo the portions to which an objection is made. Id. The district court 23 need not, however, review the portions to which no objection is made. See Schmidt v. 24 Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“[D]e novo review of factual and 25 legal issues is required if objections are made, but not otherwise.”) (quotation marks and 26 citation omitted). 27 II. Factual Background 28 Petitioner did not object to most of the factual background recited by the 1 Magistrate Judge. Therefore, the Court accepts the Magistrate Judge’s recounting of the 2 facts. The relevant facts, in brief, are as follows. 3 Petitioner is currently an inmate at the Federal Correctional Institution (“FCI”) 4 Phoenix. On the morning of August 27, 2012, FCI-Staff psychologist, Dr. Marilyn Park, 5 saw Petitioner “putting his khaki pants [on]” in front of the outdoor recreation area. 6 (Doc. 12-2 at 8). Dr. Park told Petitioner “he needed to dress himself in his housing 7 unit.” Four days later, another staff member saw Petitioner in a “hallway wearing only 8 his underwear and a shirt.” When asked why he was not wearing pants, Petitioner said he 9 was “waiting to use the restroom but someone is in there.” (Doc. 12-2 at 6). The staff 10 member told him “to put his pants back on.” That same staff member noted the hallway 11 where he observed Petitioner “is the hallway that leads up to Dr. Park’s office.” (Doc. 12 12-2 at 6). That hallway “is in an area that Dr. Park must walk through to get to and from 13 her office” and Petitioner was found “no more than 25 yards from Dr. Park’s office.” 14 (Doc. 12-2 at 9). The staff member composed an incident report charging Petitioner with 15 “stalking” and “indecent exposure.” (Doc. 12-2 at 6). 16 Petitioner was given a copy of the incident report later that same day. When first 17 given the report, Petitioner stated “I admit I took off my shorts and then put my pants on, 18 not thinking anyone would see me do this.” (Doc. 12-2 at 7). But Petitioner disputed he 19 was “stalking anyone.” (Doc. 12-2 at 7). An investigation was conducted and a hearing 20 before the Unit Discipline Committee (“UDC”) took place a short time later. (Doc. 12-2 21 at 3). The UDC referred the matter to a Discipline Hearing Officer for a further hearing. 22 (Doc. 12-2 at 3). 23 At the hearing before the Discipline Hearing Officer, a memo written by Dr. Park 24 allegedly was read to Petitioner. Petitioner was then allowed to make a statement 25 regarding Dr. Park’s memo. Petitioner admitted Dr. Park had confronted him and told 26 him his “undressed state . . . made her feel ‘uncomfortable.’” (Doc. 12-2 at 10). The 27 hearing officer held Petitioner had “committed the prohibited act of Stalking” and 28 sanctioned Petitioner with, among other things, the loss of “27 days Good Conduct -2- 1 Time.” (Doc. 12-2 at 10, 12). Petitioner appealed. 2 On appeal, Petitioner cited the definition of “stalking” that requires “repeated 3 behavior which harasses” and argued there was “no documented pattern of repeated 4 behavior.” (Doc. 12-1 at 16). The Regional Director issued a written opinion affirming 5 the violation and sanctions. The Regional Director reasoned Petitioner “had previously 6 been warned about [his] conduct” and there was an adequate “basis for the finding that 7 [he] committed the prohibited act.” On Petitioner’s argument regarding the lack of 8 “repeated behavior,” the Regional Director stated “the [hearing officer] drew a reasonable 9 conclusion that you stalked the Staff Psychologist after she previously warned you about 10 your behavior.” (Doc. 12-1 at 17). Petitioner then appealed again, but the violation and 11 sanctions were again affirmed. (Doc. 12-1 at 4). 12 Petitioner filed this habeas petition asserting two challenges to the violation and 13 sanctions. 14 “stalking” charge. And second, Petitioner believes his due process rights were violated 15 during the disciplinary process because he was not permitted to “examine or challenge” 16 Dr. Park’s memo. (Doc. 1 at 5). 17 III. Standard for Prison Discipline 18 First, Petitioner claims there was insufficient evidence supporting the The Magistrate Judge correctly identified the very lenient standard the Court must 19 apply when assessing Petitioner’s claims. 20 procedural protections before he “can be deprived of a protected liberty interest in good 21 time credits.” 22 McDonnell, 418 U.S. 539 (1974)). Those protections require an inmate receive: 23 24 25 26 27 28 A prison inmate is entitled to limited Superintendent v. Hill, 472 U.S. 445, 453 (1985) (citing Wolff v. (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Id. at 454. In addition to these requirements, the factual determinations must be “supported by some evidence in the record.” Id. This “some evidence” standard requires only a “modicum of evidence.” Id. It does not require the Court reexamine “the entire -3- 1 record,” independently assess the credibility of witnesses, or reweigh the evidence. Id. It 2 only requires the Court determine “whether there is any evidence in the record that could 3 support the conclusion reached by the [prison].” Id. (emphasis added). The Ninth Circuit 4 has described this as a “minimally stringent” standard. Cato v. Rushen, 824 F.2d 703, 5 705 (9th Cir. 1987). 6 IV. Sufficient Evidence of Stalking 7 Petitioner’s first argument is that there was insufficient evidence to find him guilty 10 of “stalking.” The applicable regulation defines “stalking” as: Stalking another person through repeated behavior which harasses, alarms, or annoys the person, after having been previously warned to stop such conduct.1 11 28 C.F.R. § 541.3, Table 1. 12 evidence supporting the factual determination that Petitioner had engaged in “stalking.” 13 Petitioner’s objections to this conclusion are not entirely clear. But assuming he is 14 objecting to the sufficiency of the evidence, his objections are not convincing. 8 9 The Magistrate Judge concluded there was sufficient 15 The evidence before the hearing officer was largely undisputed. Dr. Park found 16 Petitioner in the hallway without his pants on and admonished him to dress appropriately. 17 Four days later Petitioner was found by another staff member without his pants on. The 18 second staff member explained Petitioner was found in a hallway leading up to Dr. Park’s 19 office. While Petitioner now argues there were reasonable explanations for him not 20 wearing pants on either occasion, and that he was not very close to Dr. Park’s office the 21 second time, those arguments do not mean the ultimate conclusion regarding “stalking” 22 was arbitrary or lacking a plausible basis. The undisputed evidence was that Dr. Park had 23 warned Petitioner about his dress and a very short time later, in the general vicinity of Dr. 24 Park’s office, Petitioner was found in a state of undress. This was sufficient to meet the 25 very lenient “some evidence” standard.2 Given the low standard, the Magistrate Judge 26 1 27 28 The regulation also explains that “[a]iding, attempting, abetting, or making plans to commit any of the prohibited acts is treated the same as committing the act itself. 28 C.F.R. § 541.3(a). 2 To find Petitioner guilty, the hearing officer was not required to conclude -4- 1 correctly concluded Petitioner is not entitled to relief on his first argument. 2 V. Sufficient Opportunity to Present Evidence 3 Petitioner’s second argument is that Dr. Park’s memo was not read aloud at the 4 hearing. The Magistrate Judge concluded the memo was, in fact, read aloud. (Doc. 20 at 5 5). But Petitioner’s objections dispute this conclusion. Petitioner has not, however, 6 explained how this factual dispute makes a meaningful difference. 7 Petitioner apparently believes the failure to read the memo aloud meant he was not 8 given the “opportunity to prepare [for] or contravene the information provided by Dr. 9 Park.” (Doc. 22 at 2). It is not entirely clear what this means as Petitioner admits Dr. 10 Park found him putting on his pants and the memo from Dr. Park merely recounted their 11 interaction. It is also undisputed Petitioner knew his interaction with Dr. Park was at 12 issue during the hearing and there is no indication Petitioner was prevented from 13 presenting evidence or argument to the hearing officer regarding the incident with Dr. 14 Park. Therefore, whether Dr. Park’s memo was read aloud or not, the Magistrate Judge 15 correctly concluded Petitioner was provided due process and he is not entitled to relief on 16 his second argument. 17 Accordingly, 18 IT IS ORDERED the Report and Recommendation (Doc. 20) is ADOPTED IN 19 FULL and the Petition for Writ of Habeas Corpus (Doc. 1) is DENIED and 20 DISMISSED WITH PREJUDICE. 21 accordingly. 22 The Clerk of Court shall enter judgment Dated this 8th day of October, 2014. 23 24 Honorable Roslyn O. Silver Senior United States District Judge 25 26 27 28 Petitioner actually did harass, alarm, or annoy Dr. Park. Rather, the officer’s conclusion was permissible even if the officer believed Petitioner was only attempting to harass, alarm, or annoy Dr. Park. 28 C.F.R. § 541.3(a) (attempts are punished the same as committing the act). -5-

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