Hayat v. Garber
Filing
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ORDER: The Petition 1 is dismissed without prejudice. The Clerk of Court must close the case and enter judgment. Signed by Judge David G Campbell on 11/1/2013. (See attached PDF for complete information)(ALS)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Hamid Hayat,
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No. CV 13-1381-PHX-DGC (MEA)
Petitioner,
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vs.
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Conrad Garber,
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ORDER
Respondent.
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Petitioner Hamid Hayat, who is confined in the Federal Correctional Institution-
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Phoenix (FCI-Phoenix), has filed a Petition Under 28 U.S.C. § 2241 for a Writ of Habeas
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Corpus by a Person in Federal Custody and paid the filing fee. The Court will dismiss
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the Petition and this action.
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Petitioner raises one ground for relief in which he alleges that his privileges were
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rescinded without due process and despite the fact that Petitioner has not been found
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guilty of a violation of prison rules. Petitioner states that he is serving a 288-month term
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of imprisonment for terrorist-related charges. Petitioner alleges that in November 2010,
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it was determined that he was no longer a threat to the orderly running of the institution
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and he was released into general population with the same rights and privileges of other
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inmates, including visitation rights.
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After further good conduct, Petition was approved for a transfer to a facility closer
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to his family in California and was placed in FCI-Phoenix. Upon arrival at FCI-Phoenix,
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however, Petitioner was placed on a “restrictive 2 hour watch program,” his phone
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privileges were restricted to one call per week, and his father was removed from his
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visitation list. Petitioner states that these restrictions were not imposed as sanctions for
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rules violations and that “taking these privileges was arbitrary and capricious without any
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foundation in the security needs of the facility.”
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Jurisdiction under 28 U.S.C. § 2241 is available in a federal prison setting: (1) “for
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a prisoner’s claims that he has been denied good time credits without due process”;
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(2) for a claim “that he has been subjected to greater restrictions of his liberty, such as
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disciplinary segregation, without due process”; and (3) “when a petitioner seeks
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expungement of a disciplinary finding from his record if expungement is likely to
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accelerate the prisoner’s eligibility for parole.” Bostic v. Carlson, 884 F.2d 1267, 1269
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(9th Cir. 1989) (citations omitted).
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In this case, Petitioner has not raised claims implicating his due process rights.
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Petitioner has not demonstrated that he has been subjected to greater restrictions of his
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liberty, such as disciplinary segregation, and the duration of his sentence has not been
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affected through the loss of good time credits. Accordingly, habeas relief is not available
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to Petitioner. See Wolff v. McDonnell, 418 U.S. 539, 572 n.19 (1974) (“We do not
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suggest, however, that the procedures required by today’s decision for the deprivation of
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good time would also be required for the imposition of lesser penalties such as the loss of
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privileges.”).
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To the extent Petitioner intends to argue that he is subjected to unconstitutional
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conditions of confinement, a civil rights action is the proper method for challenging the
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conditions of a prisoner=s confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991);
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Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979) (the proper remedy for
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complaints challenging conditions of confinement is a civil rights action under 42 U.S.C.
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§ 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
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U.S. 388 (1971)).
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Although Petitioner may choose to bring his claims in a civil rights action, the
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Court, in its discretion, declines to construe the Petition as filed under Bivens because it
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appears Petitioner’s allegations do not state a claim for the violation of his civil rights.
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Specifically, an inmate has no First Amendment right of access to a telephone. Valdez v.
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Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002). Although the Ninth Circuit has at
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various times stated prisoners have a limited right of access to a telephone subject to
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reasonable security limitations, those statements were dicta, and no opinion has identified
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the source of such a right. Id.; see, e.g., Halvorsen v. Baird, 146 F.3d 680, 689 (9th Cir.
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1998); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996); Johnson v. California, 207
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F.3d 650, 656 (9th Cir. 2000); Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir.
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1986). The Ninth Circuit “‘sensibly and expansively’ define[s] the First Amendment
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right at issue . . . as the right to communicate with persons outside prison walls. Use of a
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telephone provides a means of exercising this right.” Valdez, 302 F.3d at 1048 (emphasis
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in original).
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Further, the Due Process Clause does not guarantee a right of unfettered visitation.
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See Kentucky Dep’=t of Corrections v. Thompson, 490 U.S. 454, 460 (1989); Keenan v.
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Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). Finally, a prisoner has no constitutional right
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to enjoy a particular security classification. Meachum v. Fano, 427 U.S. 215, 224-25
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(1976) (no liberty interest protected by the Due Process Clause is implicated in a prison’s
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reclassification and transfer decisions). See also, Hewitt v. Helms, 459 U.S. 460, 466
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(1983); Lucero v. Russell, 741 F.2d 1129 (9th Cir. 1984). “As long as the conditions or
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degree of confinement to which the prisoner is subjected is within the sentence imposed
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upon him and is not otherwise violative of the Constitution, the Due Process Clause does
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not in itself subject an inmate’s treatment by prison authorities to judicial oversight.”
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Montanye v. Haymes, 427 U.S. 236, 242 (1976).
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IT IS THEREFORE ORDERED that the Petition (Doc. 1) is dismissed without
prejudice. The Clerk of Court must close the case and enter judgment.
Dated this 1st day of November, 2013.
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