Kincer v. Winn

Filing 17

ORDER Denying re: 1 Petition for Writ of Habeas Corpus (Fed/2241) filed by Kelly Lynn Kincer. Clerk to prepare a judgment and close this case. Signed by Magistrate Judge Leslie A Bowman on 8/27/14. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kelly Lynn Kincer,
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Petitioner,
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vs.
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Louis Winn,
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Respondent.
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No. CV-13-506-TUC-LAB
ORDER

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On June 19, 2013, Kelly Lynn Kincer, an inmate confined (at that time) in the United

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States Penitentiary in Tucson, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to

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Title 28, United States Code, Section 2241. (Doc. 1) Kincer claims the Bureau of Prisons

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(BOP) wrongfully deprived him of 27 days of Good Conduct Time resulting from his misuse

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of the TRULINCS email system.

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Magistrate Judge Bowman presides over this action pursuant to 28 U.S.C. § 636(c).
(Doc. 12) The petition will be denied on the merits.

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Summary of the Case

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Kincer is currently serving a 115-month term of imprisonment for receipt of child

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pornography. (Doc. 13-1, p. 3) At the time the petition was filed, Kincer was incarcerated in

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the United States Penitentiary in Tucson, Arizona. Id. Previously, he was confined at the

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Federal Correctional Institution in Petersburg, Virginia. (Doc. 13-1, pp. 3-5)

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At 8:30 A.M. on November 15, 2010, staff at the Federal Correctional Institution in

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Petersburg, Virginia discovered that Kincer had used another inmate’s TRULINCS account to

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send an email to a third person. (Doc. 13-4, p. 2) Furthermore, Kincer had called the third

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person to inform her that the email was actually from him. Id. At 7:25 P.M. the next day,

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roughly 35 hours after discovering the incident, staff delivered the incident report to Kincer. Id.

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The original incident report charged Kincer of a code 297 violation: use of a telephone to

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circumvent staff’s ability to monitor telephone use. Id.; 28 C.F.R. 541.3. The incident report,

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however, described the charge as “[u]sing TRULINCS in violation of the policy on TRULINCS

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regulations and which circumvents TRULINCS monitoring procedures.” (Doc. 14-3, p. 2)

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On December 28, 2010, a Disciplinary Hearing Officer (DHO) conducted a hearing and

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sanctioned Kincer with the loss of 27 days of Good Conduct Time, 15 days of disciplinary

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segregation, and the loss of telephone privileges for a year. (Doc. 13, p. 5) In February, Kincer

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appealed to the Mid-Atlantic Regional Office. Id. The Regional Director remanded the case,

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ordering the incident report to be rewritten in a way that more adequately provided notice to

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Kincer. Id. Following that order, prison staff rewrote the incident report to charge him with a

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Code 299 violation for conduct “most like another High severity prohibited act,” namely, Code

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297 – phone abuse. Id.; 28 C.F.R. 541.3.

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On June 3, 2011, the DHO reheard the matter and again issued sanctions including the

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loss of 27 days of Good Conduct Time, 15 days of disciplinary segregation, and the loss of

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telephone privileges for six months. (Doc. 13, p. 5-6) Kincer again appealed to a Regional

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Office, which upheld the substantive findings of the DHO. (Doc. 13, p. 6) Kincer’s two

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subsequent appeals to the General Counsel were rejected as improperly submitted. Id.

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Kincer now appeals to this court. He makes four claims: (1) that the proceedings were

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untimely, (2) that the BOP should not have been permitted to rewrite its report, (3) that he was

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improperly charged with a “High” severity act rather than a “Moderate” severity act, and (4)

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that his sanction was disproportionate to the sanction his co-conspirator received. (Doc. 1, pp.

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Respondent argues that Kincer failed to exhaust his administrative appeals, and that this

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petition must be dismissed as a result. Assuming Kincer adequately exhausted his remedies, this

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court finds his petition should be denied on the merits.

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Discussion

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Federal prisoners have a statutory right to good time credits. See 18 U.S.C. § 3624.

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Accordingly, they have a due process interest in the disciplinary proceedings that may take

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away those credits. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). “Due process in a prison

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disciplinary hearing is satisfied if the inmate receives written notice of the charges, and a

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statement of the evidence relied on by the prison officials and the reasons for disciplinary

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action.” Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987), cert. denied, 487 U.S. 1207

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(1988). “The inmate has a limited right to call witnesses and to present documentary evidence

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when permitting him to do so would not unduly threaten institutional safety and goals.” Id.

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The final decision to revoke good time credits must be based on “some evidence.”

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Superintendent v. Hill, 472 U.S. 445, 455 (1985). “The relevant question is whether there is any

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evidence in the record that could support the conclusion reached by the disciplinary board.” Id.

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at 455-56. If so, then due process is satisfied. Id. The court need not examine the entire record,

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independently assess the credibility of the witnesses, or weigh the evidence. Id. at 455.

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Here, Kincer used the prison’s phone and TRULINCS email system to send a message

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to a third party in a way that avoided the prison monitoring system. He challenges the sanctions

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imposed upon him for that violation on four grounds.

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First, Kincer argues the violation should be expunged because prison staff failed to notify

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him within 24 hours of discovering the incident. (Doc. 1, p. 4) Due process, however, does not

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require that a prisoner receive notice of the charges against him within 24 hours of the discovery

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of his offense. There is a relevant regulation, 28 C.F.R. 541.5(a), but the violation of a

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regulation does not translate into a violation of due process. See Armstrong v. Warden of USP

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Atwater, 2011 WL 2553266, 8 (E.D.Cal. 2011) (“[A] violation of a BOP regulation, without

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more, does not rise to the level of a due process violation.”). And here, the regulation was not
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even violated. That regulation, 28 C.F.R. 541.5(a), states only that a prisoner will “ordinarily

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receive the incident report within 24 hours of staff becoming aware of . . . the incident.”

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(emphasis added) There is no requirement that staff must provide notice within 24 hours in all

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cases. Hughes v. Quintana, 2013 WL 5350668, 2 (C.D.Cal. 2013) (“There is no U.S. Supreme

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Court or Ninth Circuit decision holding that the word “ordinarily” in a statute or regulation can

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ever be read as establishing a mandatory requirement.”).

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Second, Kincer argues that prison staff should not have been able to rewrite the incident

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report to change the Code violation. Kincer complained that he was charged with misuse of the

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TRULINCS system and that misuse of the TRULINCS system was not specifically forbidden

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under the program statement then in effect. Only misuse of the mail and telephone were

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explicitly mentioned. The Regional Director agreed with Kincer and remanded the action for

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the DHO to charge him correctly. Following the remand, prison staff rewrote the incident report

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to charge Kincer with a Code 299 violation for conduct “most like another High severity

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prohibited act,” namely, Code 297 – phone abuse. Id.; 28 C.F.R. 541.3.

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The DHO’s revised charge was proper under the regulation. Kincer does not dispute

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that. Instead, he seems to argue the DHO should not have been allowed to recharge him. The

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court sees no due process violation in revising the charge to accurately comply with the

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regulation. See also Sejour v. Sanders, 2012 WL 1247185, 8 (C.D.Cal. 2012) (The double

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jeopardy clause does not apply to prison disciplinary actions.).

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Third, Kincer argues that he was incorrectly charged with a “High” offense rather than

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a “Moderate” one. This claim is a bit difficult to understand. When Kincer committed his

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offense, program statement PS 5207.08 was in effect. See Sejour v. Sanders, 2012 WL

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1247185, n. 4 (C.D.Cal. 2012). The BOP has since issued a new program statement, PS

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5207.09. In that new program statement, Kincer argues, his offense is now considered a

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“Moderate” offense rather than a “High” offense. Apparently, Kincer believes the BOP should

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have charged his offense as a moderate offense because it would do so if he committed it now.

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Kincer does not dispute, however, that substantial evidence supports the charge that

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actually was brought against him. Accordingly, due process was not violated.
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Kincer argues the BOP should have charged his offense in a more lenient way. The

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failure of the BOP to anticipate future changes in the program statement, however, could not

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possibly be a due process violation.

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Finally, Kincer complains the sanction he received was more severe than the one given

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to the inmate whose email account he improperly used. It appears, however, that Kincer’s

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actions were more egregious, and therefore his harsher punishment, assuming he received one,

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was understandable. Kincer used another’s email account to avoid prison oversight, sent a

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message, and made a telephone call to ensure the message would be received by the intended

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recipient. His co-conspirator simply gave Kincer an opportunity to commit these violations.

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Kincer and his co-conspirator were not similarly situated. Accordingly, due process was not

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violated if Kincer received a harsher punishment. Accordingly,

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IT IS ORDERED that the Petition for Writ of Habeas Corpus pursuant to Title 28, United
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States Code, Section 2241, filed on June 19, 2013 by Kelly Lynn Kincer is DENIED. (Doc. 1)
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The Clerk is directed to prepare a judgment and close this case.
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DATED this 27th day of August, 2014.

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