Driggers v. Winn et al

Filing 11

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus : Recommending that Petition be dismissed. Parties have 10 days after being served with a copy of this Report and Recommendation to file written objections. If objections are filed, parties should use the following case number: CIV 09-183-TUC-DCB. Signed by Magistrate Judge Bernardo P Velasco on 8/31/09. (SSU, )

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2) (3) PAUL WILLIAM DRIGGERS vs. Petitioner, ) ) ) ) ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

No. CV 09-0183-TUC-DCB (BPV) REPORT AND RECOMMENDATION

LOUIS WINN, WARDEN, Respondent.

Petitioner, Paul William Driggers, who is confined in the Federal Correctional Institution-Tucson, filed a Petition for A Writ of Habeas Corpus by a Person in Federal Custody Under 28 U.S.C. § 2241 ("Petition")on March 31, 2009. (Doc. No. 1.) Petitioner raised four grounds for relief in the Petition. Petitioner raises four grounds for relief in the Petition: (1) Petitioner is punished and wrongfully deprived of good time credits, in violation of his due process rights, because he has a disability which prevents him from providing a urine sample within a 2-hour time limit; Petitioner was wrongfully deprived of good time credits and privileges; Petitioner is wrongfully punished because he cannot provide a urine sample or "pay a debt" to BOP; and (4) Petitioner has been wrongfully designated as a "prior use" inmate, in violation of his constitutional rights. Petitioner seeks restoration of his good time credits, to have his name taken off the "Prior Use" list, and to be randomly selected for drug testing like other inmates. The

1 District Court issued its initial screening order, dismissing Ground Three as repetitive, 2 and calling for an answer from Respondents on Grounds One, Two, and Four of the 3 Petition. (Doc. No. 3.) 4 On July 15, 2007, Respondents filed an answer explaining that, on June 9, 2009,

5 Warden Winn took Petitioner off the suspect list for drug testing. (Doc. No. 9.) 6 Additionally, on June 22, 2009, Discipline Hearing Officer Petricka conducted a re7 hearing of Petitioner's incident report from FCI, Florence, Colorado for Refusing to 8 Provide a Urine Sample and found that, based on Petitioner's Generalized Anxiety 9 Disorder, it appears his refusal to provide a urine sample was not intentional. Based on 10 this evidence, DHO Petricka expunged the incident report and restored the 41 days of 11 Good Conduct Time which had previously been forfeited as a result of that incident 12 report. (Answer, at 2-3.) Finally, a plan is in place to accommodate Petitioner's 13 anxiety disorder in the event he is randomly selected to provide a urine sample, 14 allowing Petitioner extra time in a dry cell if needed.. 15 Respondent concludes that these corrective steps appear to address all three of

16 Petitioner's requests for relief contained in his Petition. Respondents therefore request 17 that the Court dismiss the petition as moot. 18 Petitioner agrees with Respondent's request that this case be dismissed, and

19 agrees that he has been granted the relief requested. A case becomes moot when "it no 20 longer present[s] a case or controversy under Article III, § 2, of the Constitution." 21 Spencer v. Kemna, 523 U.S. 1, 7 (1998). Although Petitioner suggests that the Court 22 consider retaining ancillary jurisdiction until the expiration of Petitioner's term of 23 incarceration, in the event Petitioner is transferred to another facility, or new 24 supervisors or hires are unfamiliar with Petitioner's issue. A court must have

25 jurisdiction over a case or controversy before it may assert jurisdiction over ancillary 26 claims. See Peacock v. Thomas, 516 U.S. 349, 355 (1996)(citations omitted). Because 27 28 -2-

1 the Magistrate Judge recommends that this case be dismissed as moot, the Court would 2 have no jurisdiction to assert over any ancillary claim. 3 4 Accordingly, This Court recommends that the Petition for Writ of Habeas Corpus (Doc. No.

5 1) be DISMISSED. 6 Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections

7 within ten days after being served with a copy of this Report and Recommendation. A 8 party may respond to another party's objections within ten days after being served with 9 a copy thereof. Fed.R.Civ.P. 72(b). If objections are filed the parties should use the 10 following case number: CIV 09-0183-TUC-DCB. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3DATED this 31st day of August, 2009.