Clark v. Samuels et al

Filing 26

ORDER, J. T. Shartle, Warden, is substituted as the sole Respondent, replacingCharles E. Samuels, Jr. and Louis Winn. Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1) is DENIED. The Clerk of the Court shall enter judgment and close its file in this matter. Signed by Magistrate Judge Bruce G Macdonald on 2/13/18. (See attached PDF for complete information.) (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William James Clark,
Petitioner,

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No. CV-14-02593-TUC-BGM
ORDER

v.

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Charles E. Samuels, Jr., et al.,
Respondents.

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Currently pending before the Court is Petitioner William James Clark’s pro se

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Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal

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Custody (“Petition”) (Doc. 1). Respondents have filed a Return and Answer (“Answer”)

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(Doc. 19). Petitioner did not file a Reply. The Petition is ripe for adjudication.

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As an initial matter, “the proper respondent to a habeas petition is ‘the person who

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has custody over [the petitioner].” Rumsfeld v. Padilla, 542 U.S. 426, 434, 124 S.Ct.

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2711, 2717, 159 L.Ed.2d 513 (2004) (quoting 28 U.S.C. § 2242) (alterations in original).

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As such, the Warden of the United States Penitentiary–Tucson (“USP–Tucson”), where

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Petitioner was housed at the time his Petition (Doc. 1) was filed, is the proper

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Respondent, but Charles E. Samuels, Jr., Director of the Bureau of Prisons is not. See id.

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The Court takes judicial notice, however, that Louis Winn is no longer warden of USP–

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Tucson. As such, the Court will substitute the new Warden of USP–Tucson, J. T.

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Shartle, as the sole Respondent pursuant to Rule 25(d) of the Federal Rules of Civil

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Procedure.

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I.

PROCEDURAL BACKGROUND

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At the time Petitioner filed his Petition (Doc. 1), Petitioner was an inmate

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incarcerated at USP–Tucson in Tucson, Arizona. See Petition (Doc. 1). Petitioner is

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currently incarcerated at the Federal Correctional Institution (“FCI”) Victorville Medium

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I in Victorville, California.

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https://www.bop.gov/inmateloc/ (last visited February 2, 2018). Petitioner is serving a

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106-month sentence for Felon in Possession of a Firearm; Fictitious Obligations; and

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Impersonating a Federal Officer or Employee. See Response (Doc. 19) White Decl.

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(Exh. “A”), Inmate Data (Attach. “1”) at 3. Petitioner commited the underlying offense

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which gave rise to his incarceration on August 3, 2010. Id., Exh. “A,” Attach. “1” at 3.

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Petitioner’s projected release date is September 2, 2018. See Fed. BOP Inmate Locater,

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https://www.bop.gov/inmateloc/ (last visited February 2, 2018). On December 22, 2014,

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Petitioner filed a Petitioner Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a

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Person in Federal Custody. See Petition (Doc. 1). Petitioner challenges disciplinary

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convictions that resulted in his loss of good time credits. See id. Petitioner alleges that

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due process violations during the disciplinary process resulted in the disallowance of

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ninety-five (95) days of good time credits. See id. Petitioner requests this Court order

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Respondent to expunge the disciplinary violations and return the ninety-five (95) days of

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good time credits. See id.

See Fed. Bureau of Prisons (“BOP”) Inmate Locater,

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II.

FACTUAL BACKGROUND

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This matter arises from three (3) separate Incident Reports. Petitioner seeks relief

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from the aggregate punishment of those proceedings. Petitioner instituted the current

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action on December 22, 2014. See Petition (Doc. 1).

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A. Incident Report Number 2462624

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On June 29, 2013 at approximately 1:55 p.m., Senior Officer Specialist (“S.O.S.”)

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J. Holt was monitoring a telephone call placed from telephone station 7514-CLP-K-A

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that occurred at approximately 9:43 a.m. on June 28, 2013. Response (Doc. 19), White

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Decl. (Exh. “A”), Incident Report No. 2462624 (Attach. “2”) at 1; Petition (Doc. 1) at 14.

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The call was placed using Petitioner’s Register Number; however, S.O.S. Holt

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recognized that the voice on the call was not that of Petitioner. Response (Doc. 19), Exh.

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“A,” Attach. “2” at 1; Petition (Doc. 1) at 14. Upon review of the ViconNet camera

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system, S.O.S. Holt observed inmate Errol Sullivan place the call and proceed to talk on

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the phone for the duration. Response (Doc. 19), Exh. “A,” Attach. “2” at 1; Petition

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(Doc. 1) at 14. S.O.S. Holt charged Petitioner with the prohibited act of Use of the

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Telephone for Abuses Other Than Illegal Activity in violation of Code 297. Response

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(Doc. 19), Exh. “A,” Attach. “2” at 1; Petition (Doc. 1) at 14.

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The following day, Lieutenant L. Brown delivered the incident report to Petitioner.

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Response (Doc. 19), Exh. “A,” Attach. “2” at 1; Petition (Doc. 1) at 14. Lt. Brown also

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investigated the incident and advised Petitioner of his rights. Response (Doc. 19), Exh.

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“A,” Attach. “2” at 2. Petitioner indicated that he understood those rights. Id.

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Lt. Brown’s investigation, Petitioner stated that he did not agree with the charges and that

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his “number was used without [his] knowledge.” Id. Lt. Brown concluded that Petitioner

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had been appropriately charged, and forwarded the Incident Report to the Unit Discipline

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Committee (“UDC”) for further disposition. Id.

During

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On July 1, 2013, the UDC conducted its hearing. Response (Doc. 19), Exh. “A,”

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Attach. “2” at 1. Petitioner stated that he “was locked in [his] cell and [] did not give

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[Sullivan] [Petitioner’s] pac # or approval to use [his] phone.” Id. Petitioner also

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requested that the video be reviewed. Id. The UDC referred the matter to the Discipline

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Hearing Officer (“DHO”) for further hearing, and if Petitioner was found guilty,

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appropriate sanctions. Id. The UDC also provided Petitioner with a Notice of Discipline

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Hearing Before the DHO and his rights at that hearing. Response (Doc. 19), Exh. “A,”

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Attach. “2” at 3–4. Petitioner indicated that he wished to have a staff representative at his

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DHO hearing, but did not request any witnesses. Id., Exh. “A,” Attach. “2” at 3.

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On July 2, 2013, Petitioner had a DHO hearing before DHO W. White. See

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Response (Doc. 19), Exh. “A,” Attach. “2” at 12–14. DHO White noted that on July 1,

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2013, Counselor J. Bosbous had advised Petitioner of his rights before the DHO, and he

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indicated that he understood those rights. Id., Exh. “A,” Attach. “2” at 12–13. DHO

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White further noted that Petitioner requested Case Manager G. Gatlin as his staff

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representative to assist him at the hearing. Id. DHO White indicated that Case Manager

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Gatlin did appear at the hearing. Id. DHO White confirmed that Petitioner had not

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requested any witnesses. Id. Petitioner “denied the charge to the DHO and stated, ‘I

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gave him access to my PAC number for emergency purposes only[;] [h]e used it without

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my knowledge[;] I have requested a new PAC number.’” Id.

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DHO White considered the facts presented in the body of the written report;

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Petitioner’s statement; Case Manager Gatlin’s confirmation that Petitioner’s statement

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before the DHO was the same statement that he had made to the case manager; the

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Viconnect video surveillance photographs; and Trufone telephone call logs. Response

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(Doc. 19), Exh. “A,” Attach. “2” at 13. DHO White “considered [Petitioner’s] denial

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statement; however, [Petitioner] [is] the only inmate that should have access to [his] PAC

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number.” Id. DHO White reminded Petitioner that it is his responsibility to report to his

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unit counsel anytime he believes his account is compromised. Id. DHO White found the

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reporting officer’s statement more credible in light of his “legal obligation to report

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truthful and accurate facts[,]” but also accepted Petitioner’s statement that he had given

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inmate Sullivan access to his PAC number for emergency purposes only, and stated that

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“regardless of the reason, it is never permissible to allow another inmate to utilize your

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phone account.”

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incarcerated is a privilege, not a right . . . [and] by attempting to abuse the telephone

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system, [Petitioner] interfere[d] with the institution procedures for monitoring telephone

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calls[,] . . . [and] encourag[ing] others to engage in similar behaviors.” Id. Accordingly,

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DHO White determined that Petitioner “committed the prohibited act of telephone abuse

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(non-criminal)” in violation of Code 297. Response (Doc. 19), Exh. “A,” Attach. “2” at

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13. DHO White imposed sanctions of twenty-seven days disallowed good conduct time

Id.

DHO White commented that “the use of a telephone while

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(“GCT”), and 180 days loss of telephone privileges. Id. On July 2, 2013, DHO White

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signed the DHO report and it was delivered to Petitioner on July 5, 2013. Id., Exh. “A,”

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Attach. “2” at 14.

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On July 17, 2013, Petitioner filed his Regional Administrative Remedy Appeal

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regarding Incident Report No. 2462624. Petition (Doc. 1) at 15. The record does not

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reflect a response was issued. On August 23, 2013, Petitioner filed a Central Office

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Administrative Remedy Appeal to the Director. Petition (Doc. 1) at 16. Again, the

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record does not reflect a response was issued.

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B. Incident Report Number 2446852

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On May 20, 2013 at approximately 1:20 a.m., Senior Officer (“SO”) J. Higgins

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was conducting rounds in the K-1 housing unit. Response (Doc. 19), White Decl. (Exh.

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“A”), Incident Report No. 2446852 (Attach. “3”) at 1. SO Higgins “observed that the

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window of cell 219 had been broken and there were pieces of glass scattered from cell

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219 to the front of cell 214.” Id. Petitioner and his cellmate were noted to have been

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“secured inside the cell when the window was broken.”

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Petitioner with the prohibited act of Destroying Government Property in violation of

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Code 218. Response (Doc. 19), Exh. “A,” Attach. “3” at 1.

Id.

SO Higgins charged

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Later the same day Lieutenant K. Kelly delivered the incident report to Petitioner.

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Id. Lt. Kelly also investigated the incident and advised Petitioner of his rights. Id., Exh.

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“A,” Attach. “3” at 2. During Lt. Kelly’s investigation, Petitioner stated that he “was

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having Sevier [sic] chest pains, [and] pushed the direst [sic] button numerous times

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nobody answered, [he] started banging on the door and unfortunately the last swing hit

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the window[,] [but] [he] never meant to hit the window let alone break it; [he] just

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wanted help for [his] chest pains.” Id. Lt. Kelly noted that Petitioner displayed a good

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attitude, and understood his rights. Id. Petitioner did not request any witnesses. Id. Lt.

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Kelly forwarded the Incident Report to the UDC for further disposition. Id.

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On May 22, 2013, the UDC conducted its hearing. Response (Doc. 19), Exh. “A,”

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Attach. “3” at 1. At the hearing, Petitioner stated that he “was having chest pain[,] [and]

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[] pushed the duress button and nothing happened[,] so [he] was hitting the door and

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acidently [sic] broke the window.” Id. Petitioner further stated that his “celly had

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nothing to do with it.” Id. The UDC referred the matter to the DHO for a further

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hearing, and if Petitioner was found guilty, appropriate sanctions. Id. The UDC also

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provided Petitioner with a Notice of Discipline Hearing Before the DHO and his rights at

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that hearing. Id., Exh. “A,” Attach. “3” at 3–4. Petitioner declined a staff representative,

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and did not request any witnesses, for his DHO hearing. Id., Exh. “A,” Attach. “3” at 3.

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On May 28, 2013, Petitioner had a DHO hearing before DHO W. White. See

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Response (Doc. 19), Exh. “A,” Attach. “3” at 6–8. DHO White noted that on May 22,

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2013, Counselor J. Bosbous had advised Petitioner of his rights before the DHO. Id.,

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Exh. “A,” Attach. “3” at 6. At the DHO hearing, Petitioner indicated that he understood

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his rights, waived his right to a staff representative at the DHO hearing, and requested no

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witnesses. Id., Exh. “A,” Attach. “3” at 6–7. Petitioner “admitted to the charge before

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the DHO and stated, ‘I was having chest pains[;] I hit the duress button about 5 times and

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no one came[;] I hit the door and accidentally broke the window with my cane[;] [i]t was

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about 30 minutes before the officer came up to check on me.’” Id., Exh. “A,” Attach. “3”

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at 6.

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DHO White relied on Petitioner’s admission of guilt, photographs of the broken

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window, and the facts presented in the written report in finding Petitioner “committed the

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prohibited act of destruction of government property, Code 218[.]” Response (Doc. 19),

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Exh. “A,” Attach. “3” at 7. DHO White noted “[r]egardless of the reason, it is never

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permissible to destroy government property.”

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“[p]roperty intentionally or unintentionally destroyed by inmates prevents the use of

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those funds for other purposes[,] . . . [and] [w]hen [Petitioner] destroyed/damaged

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Government property [he] caused a monetary loss to the U.S. Government.”

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Accordingly, DHO White imposed sanctions totaling twenty-seven (27) days

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disallowance of GCT, ninety (90) days loss of commissary privileges, and monetary

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restitution of $125.00. On May 30, 2013, DHO White signed the DHO report and

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Id.

DHO White further noted that

Id.

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delivered it to Petitioner on June 5, 2013.

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On May 28, 2013, Petitioner appealed by letter to the Regional Director. Petition

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(Doc. 1) at 21–22. On June 3, 2013 this initial appeal was rejected because it was not on

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the proper form.

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Administrative Remedy Appeal, this time on the BP-10 form. Id. at 23–24. Based on the

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record before the Court, it appears that Petitioner was never given a response. On July

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26, 2013, Petitioner filed a Central Office Administrative Remedy Appeal. Id. at 25.

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Again, the record does not reflect a response to this appeal.

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Id. at 20.

On June 5, 2013, Petitioner filed a second Regional

C. Incident Report Number 2464836

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On July 6, 2013 at approximately 12:00 p.m., SO T. Speerly “perform[ed] random

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cell searches[,] [and] [] discovered inside [Petitioner’s] . . . secured wall locker a pill

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bottle containing a [sic] unknown white powder substance.” Response (Doc. 19), White

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Decl. (Exh. “A”), Incident Report No. 2464836 (Attach. “4”) at 1. SO Speerly noted that

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“[t]he pill bottle was hidden in the top lip of the locker.” Id. SO Speerly further reported

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that “[u]pon testing the substance with a NIK test kit B, and A the substance tested

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positive for codeine and amphetamine.” Id. SO Speerly charged Petitioner with the

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prohibited act of Possession of Any Narcotics in violation of Code 113. Id.

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Later the same day, Lieutenant N. Perkins delivered the incident report to

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Petitioner. Id. Lt. Perkins also investigated the incident and advised Petitioner of his

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rights. Response (Doc. 19), Exh. “A,” Attach. “4” at 1–2. Petitioner indicated to Lt.

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Perkins that he understood his rights and the charges. Id., Exh. “A,” Attach. “4” at 2.

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Petitioner did not request a witness or a staff representative during the investigation, nor

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did he make any statements. Id. Lt. Perkins forwarded the incident report to the UDC for

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further disposition. Id.

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On July 10, 2013, the UDC conducted its hearing. Id., Exh. “A,” Attach. “4” at 1.

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Petitioner stated that “[t]hey haven’t serve [sic] me the incident report. That is laying

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[sic].” Id. The UDC referred the matter to the DHO for further hearing, and if Petitioner

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was found guilty, recommended sanctions including disciplinary segregation, and loss of

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commissary privileges.

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Discipline Hearing Before the DHO and his rights at that hearing. Id., Exh. “A,” Attach.

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“4” at 3–4. Petitioner indicated that he wished to have a staff representative at his DHO

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hearing, as well as a witness. Id., Exh. “A,” Attach. “4” at 3. Lt. Kelly was designated as

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Petitioner’s staff representative, and Nurse Flagg was the requested witness, who was

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expected to testify that she provided Petitioner with medication. Id.

Id.

The UDC also provided Petitioner with a Notice of

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On July 29, 2013, Petitioner had a DHO hearing before DHO W. White. See

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Response (Doc. 19), Exh. “A,” Attach. “4” at 9–12. DHO White noted that on July 6,

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2013, Counselor U. Velazquez had advised Petitioner of his rights before the DHO. Id.,

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Exh. “A,” Attach. “4” at 9. At the hearing, Petitioner’s were again reviewed. Id., Exh.

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“A,” Attach. “4” at 10. Petitioner indicated that he understood those rights, and had no

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documentary evidence to present.

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following statement:

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Id.

Petitioner denied the charge and made the

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The only thing that was in that bottle was Neurontin. Nurse Flagg gave me
three of them on the last day of lockdown and told me not to take all 3 of
them at the same time, so I placed the other ones in the pill bottle. They
were crushed already. I used all the Neurontin up. It was just the residue
that was left in the bottle. Also, I was never served my shot and I’ve had
issues with this officer in the past. I just wrote him up a week and a half
ago to the warden.

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Id., Exh. “A,” Attach. “4” at 9–10. Lt. Kelly appeared as Petitioner’s staff representative;

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however, Nurse Flagg was not called to appear during the hearing, because she was not

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present during the incident. Id., Exh. “A,” Attach. “4” at 9–10. Although Nurse Flagg

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was not called as a witness, she did provide an e-mail to DHO White which stated:

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Inmate Clark did not have a prescription that would test positive for
codeine or amphetamines. During the last lockdown, I was delivering
evening medications. When I got to his cell, the pouch with the medication
malfunctioned and the medication landed on the floor. He was receiving
Gabapentin. I had an extra packet of the exact same medication. I
instructed him to wait for a couple of hours because I was not sure how
much he had taken. Gabapentin would not test positive on a urine test. It is
a medication for diabetic neuropathy or seizures.

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Response (Doc. 19), Exh. “A,” Attach. “4” at 10. Lt. Kelly stated that Petitioner “did

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state to me that he wasn’t served the shot. I couldn’t verify it. He also stated that

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Neurontin is the highest does [sic] pain killer that is not a narcotic and was wondering if

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that would test positive for what he was being charged with.” Id.

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DHO White considered the written report, Petitioner’s denial, the statement of

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Petitioner’s staff representative, as well as Nurse Flagg’s statement, and found that

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Petitioner committed the prohibited act of Possession of Drugs, code 113. Response

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(Doc. 19), Exh. “A,” Attach. “4” at 10. DHO White found the SO Speerly’s account of

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the incident was more credible, and also found that “[t]he photograph of the substance

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being tested correlate[d] with the officer’s written statement.” Id., Exh. “A,” Attach. “4”

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at 10–11. DHO White further found that there was no evidence indicating that SO

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Speerly conspired to falsely accuse Petitioner. Id., Exh. “A,” Attach. “4” at 11. DHO

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White also determined that SO Speerly was “under a legal obligation to report truthful

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and accurate facts[,]” whereas being truthful may have run counter to Petitioner’s

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interests. Id. Additionally, based on the consistency between Petitioner’s statement to

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the DHO and to Lt. Perkins during the investigative process, DHO White found that Lt.

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Perkins “deliver[ed] and investigat[ed] this incident report per policy guidelines.” Id.

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DHO White imposed sanctions totaling forty-one (41) days disallowance of GCT, thirty

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(3) days disciplinary segregation, 120 days loss of commissary privileges, one (1) year

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loss of visiting privileges, one (1) year immediate family only visitation, and thirty (30)

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days of property impound. Response (Doc. 19), Exh. “A,” Attach. “4” at 11. On July 30,

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2013, DHO White signed the DHO report and delivered it to Petitioner on the same date.

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Id.

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On July 30, 2013, Petitioner filed his Regional Administrative Remedy Appeal

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regarding Incident Report Number 2464836. Petitioner (Doc. 1) at 32–34. Petitioner’s

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Regional Appeal was received on August 6, 2013, and denied on August 14, 2013,

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because “all pages of BP-10 form must be legible.” Id. at 31. On August 30, 2013,

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Petitioner filed a second, typewritten, Regional Administrative Remedy Appeal. Id. at

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35–36. Based on the record before the Court, it appears that Petitioner was never given a

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response. Neither does the record reflect the filing of a Central Office Administrative

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Remedy Appeal or a response to the same.

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II.

ANALYSIS

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A. Jurisdiction—In General

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“Federal courts are always ‘under an independent obligation to examine their own

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jurisdiction,’ . . . and a federal court may not entertain an action over which it has no

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jurisdiction.”

Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting

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FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). “Generally, motions to

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contest the legality of a sentence must be filed under § 2255 in the sentencing court,

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while petitions that challenge the manner, location, or conditions of a sentence’s

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execution must be brought pursuant to § 2241 in the custodial court.” Id. at 864.

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Therefore, before proceeding to any other issue a court must establish whether a habeas

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petition is filed pursuant to § 2241 or § 2255 to determine whether jurisdiction is proper.

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Id. at 865.

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Here, Petitioner does not claim that the sentencing court imposed an illegal

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sentence; rather he seeks relief with respect to disciplinary proceedings while

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incarcerated at a federal facility. As such, Petitioner is challenging the manner, location

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or condition of the execution of his sentence. See e.g., Rogers v. United States, 180 F.3d

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349 (1st Cir. 1999) (Section 2241 petition is appropriate vehicle to challenge the

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correctness of a jail-time credit determination, once administrative remedies have been

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exhausted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc),

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(“[c]hallenges to the validity of any confinement or to the particulars affecting its

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duration are the province of habeas corpus[.]” (quoting Muhammad v. Close, 540 U.S.

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749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004)); Tucker v. Carlson, 925 F.2d 330, 332

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(9th Cir. 1991) (a prisoner’s challenge to the “manner in which his sentence was executed

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. . . [is] maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. §

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2241”); Weinstein v. U.S. Parole Comm’n, 902 F.2d 1451, 1452 (9th Cir. 1990) (“The

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district court had jurisdiction pursuant to 28 U.S.C. § 2241 to review a claim by a federal

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prisoner challenging a decision of the United States Parole Commission; Bostic v.

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Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (“Habeas corpus jurisdiction is also

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available for a prisoner’s claims that he has been subjected to greater restrictions of his

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liberty, such as disciplinary segregation without due process of law”). Such a challenge

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must be brought pursuant to § 2241 in the custodial court. At the time of filing the

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Petition, Petitioner was incarcerated at USP – Tucson in Arizona. Accordingly, this

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Court has jurisdiction over this matter. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990).

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B. Exhaustion

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1. In General

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The Ninth Circuit Court of Appeals has stated:

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[28 U.S.C. § 2241] does not specifically require petitioners to exhaust
direct appeals before filing petitions for habeas corpus. [Footnote omitted.]
However, we require, as a prudential matter, that habeas petitioners exhaust
available judicial and administrative remedies before seeking relief under §
2241.

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Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds

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by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006).

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“The requirement that federal prisoners exhaust administrative remedies before filing a

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habeas corpus petition was judicially created; it is not a statutory requirement.” Brown v.

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Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray,

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515 U.S. 50, 54–55, 115 S.Ct. 2021, 2023–24, 132 L.Ed.2d 46 (1995). “Nevertheless,

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‘[p]rudential limits like jurisdictional limits and limits on venue, are ordinarily not

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optional.’” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (alterations in original)

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(quoting Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other

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grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d

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323 (2006)).

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“Courts may require prudential exhaustion if ‘(1) agency expertise makes agency

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consideration necessary to generate a proper record and reach a proper decision; (2)

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relaxation of the requirement would encourage the deliberate bypass of the administrative

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scheme; and (3) administrative review is likely to allow the agency to correct its own

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mistakes and to preclude the need for judicial review.’” Id. (quoting Noriega-Lopez v.

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Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). “When a petitioner does not exhaust

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administrative remedies, a district court ordinarily should either dismiss the petition

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without prejudice or stay the proceedings until the petitioner has exhausted remedies,

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unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir.

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2011) (citations omitted). Exhaustion may be excused if pursuing an administrative

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remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th

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Cir. 1993).

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If a prisoner is unable to obtain an administrative remedy because of his failure to

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appeal in a timely manner, then the petitioner has procedurally defaulted his habeas

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corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis,

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Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990); Martinez v. Roberts, 804 F.2d 570,

16

571 (9th Cir. 1986)). If a claim is procedurally defaulted, the court may require the

17

petitioner to demonstrate cause for the procedural default and actual prejudice from the

18

alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause

19

and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492, 106

20

S.Ct. 2639, 2647–48, 91 L.Ed.2d 397 (1986) (cause and prejudice test applied to

21

procedural defaults on appeal); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905,

22

906–08 (9th Cir. 1986) (cause and prejudice test applied to pro se litigants).

23

2. BOP Administrative Procedures

24

The BOP has established an administrative remedy process permitting an inmate

25

to seek review of an issue relating to “any aspect of his/her own confinement.” 28 C.F.R.

26

§ 542.10(a). Under that process, an inmate seeking to appeal a DHO decision shall

27

submit the appeal “initially to the Regional Director for the region where the inmate is

28

currently located.” 28 C.F.R. § 542.14(d)(2). “An inmate who is not satisfied with the

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1

Regional Director’s response may submit an Appeal on the appropriate form (BP-11) to

2

the General Counsel within 30 calendar days of the date the Regional Director signed the

3

response.” 28 C.F.R. § 542.15(a). The deadlines contained within this process may be

4

extended upon request by the inmate and a showing of a valid reason for delay. 28

5

C.F.R. § 542.15(a); 28 C.F.R. § 542.14(b). An appeal is considered filed on the date it is

6

logged in the Administrative Remedy Index as received. 28 C.F.R. § 542.18. Once an

7

appeal is filed, a Regional Director shall respond within 30 days; General Counsel shall

8

respond within 40 calendar days. Id. “If the inmate does not receive a response within

9

the time allotted for reply, including extension, the inmate may consider the absence of a

10
11

response to be a denial at that level.” Id.
3. Exhaustion in the Instant Case

12

Here, Respondent did not comment regarding Petitioner’s exhaustion of his

13

administrative remedies. Petitioner began the administrative appeal process after each

14

incident report, although the record consistently reflects a lack of response from either the

15

Regional Director or General Counsel. As such, the Court finds it appropriate to consider

16

“the absence of a response to be a denial at that level[.]” 28 C.F.R. § 542.18; see also

17

Martin v. Fed. Bureau of Prisons, 2011 WL 6057608, *2 (C.D. Cal. 2011) (“If General

18

Counsel fails to respond within 40 days, the inmate can assume that the appeal was

19

denied and proceed with a lawsuit”). Additionally, the Ninth Circuit Court of Appeals

20

has recognized that:

21
22
23
24
25
26
27
28

the requirement of exhaustion of remedies [is to] aid judicial review by
allowing the appropriate development of a factual record in an expert
forum; conserve the court’s time because of the possibility that the relief
applied for may be granted at the administrative level; and allow the
administrative agency an opportunity to correct errors occurring in the
course of administrative proceedings.
Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). In this case, the factual record is
adequately developed, and nothing in the record suggests that further administrative
review would result in any changes. Accordingly, the Court finds the Petitioner’s claims

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1

exhausted; however, even if the exhaustion is faulty, it shall be excused and the Court

2

will reach the merits.

3

C. Due Process

4

Petitioner asserts due process violations arising from each of the three incident

5

reports. See Petition (Doc. 1). These alleged violations include 1) the DHO’s “refus[al]

6

to use the statement of the other inmate as it would have proven me innocent” regarding

7

the telephone abuse charge; 2) Petitioner’s finding of guilt regarding breaking his cell

8

window was unjust, because it was an accident; 3) the DHO’s failure to have the

9

prescription bottle lab tested and refusal to review the video, as well as her credibility

10

findings in favor of the staff member; and 4) the DHO failing to act as an impartial

11

decision-maker. Petition (Doc. 1) at 5–8.

12

1. Legal Standard

13

“Due process in a prison disciplinary hearing is satisfied if the inmate receives

14

written notice of the charges, and a statement of the evidence relied on by the prison

15

officials and the reasons for disciplinary action.” Zimmerlee v. Keeny, 831 F.2d 183, 186

16

(9th Cir. 1987) (citing Wolff v. McDonnell, 418 U.S. 539, 563–66, 94 S.Ct. 2963, 2978–

17

79, 41 L.Ed.2d 935 (1974)). Additionally, “[t]he inmate has a limited right to call

18

witnesses and to present documentary evidence when permitting him to do so would not

19

unduly threaten institutional safety and goals.”

20

illiterate inmate is involved . . . [or] the complexity of the issue makes it unlikely that the

21

inmate will be able to collect and present the evidence necessary for an adequate

22

comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that

23

is forbidden to have adequate substitute aid in the form of help from the staff or from a

24

sufficiently competent inmate designated by the staff.” Wolff, 418 U.S. at 570, 94 S.Ct.

25

at 2981. Finally, inmates have a right to an impartial decision maker. Id. at 571, 94 S.Ct.

26

at 2982.

27

prosecution, and the full panoply of rights due a defendant in such proceedings do[] not

28

apply.” Wolff, 418 U.S. at 556, 94 S.Ct. at 2975.

Id. (citations omitted).

“Where an

“Prison disciplinary proceedings[, however,] are not part of a criminal

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1

Once the minimal procedural requirements of Wolff are met, the district court must

2

ask “whether there is any evidence in the record that could support the conclusion

3

reached by the disciplinary board.” Superintendent, Mass. Corrections Inst. v. Hill, 472

4

U.S. 445, 455–56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). “[T]he requirements of

5

due process are satisfied if some evidence supports the decision by the prison disciplinary

6

board to revoke good time credits.” Id. “Ascertaining whether this standard is satisfied

7

does not require examination of the entire record, independent assessment of the

8

credibility of witnesses, or weighing of the evidence.” Id. Indeed, “[t]he standard is

9

‘minimally stringent’ only requiring ‘any evidence in the record that could support the

10

conclusion reached by the disciplinary board.’” Cato v. Rushen, 824 F.2d 703, 705 (9th

11

Cir. 1987) (citing Hill, 472 U.S. at 454–56, 105 S.Ct. at 2774) (emphasis added in Cato).

12
13

2. Petitioner’s Disciplinary Proceedings
a. Ground One: Right to call witnesses

14

Petitioner stated that he “was given an incident report for telephone abuse due to

15

another inmate stealing [his] information and using the phone with this information, and

16

without [] permission[,] [and] the other inmate confessed to taking this information

17

without my knowledge[.]” Petition (Doc. 1) at 5. Petitioner asserts that his due process

18

rights were violated, because the “DHO refused to use the statement of the other inmate

19

as it would have proven [Petitioner] innocent[.]” Id. The Notice of Discipline Hearing

20

Before the DHO indicates that Petitioner declined to call any witnesses. Response (Doc.

21

19), White Decl. (Exh. “A”), Incident Report No. 2462624 (Attach. “2”) at 3. The DHO

22

Hearing Officer Report similar reflects that Petitioner did not request any witnesses. Id.,

23

Exh. “A,” Attach. “2” at 12–13. At the DHO hearing, Petitioner stated, “I gave him

24

access to my PAC number for emergency purposes only[,] [h]e used it without my

25

knowledge.” Id., Exh. “A,” Attach. “2” at 13. Based upon Petitioner’s own statement,

26

the DHO noted, “Regardless of the reason, it is never permissible to allow another inmate

27

to utilize you phone account.” Id.

28

As such, the record reflects that Petitioner did not request the other inmate to be

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1

called as a witness. See Response (Doc. 19), Exh. “A,” Attach. “2.” Moreover, even if

2

the other inmate had been allowed to testify, it does not change Petitioner’s own

3

admission. As the DHO noted, allowing inmates “to abuse the telephone system is a

4

serious violation which jeopardizes the secure and orderly running of the institution.” Id.,

5

Exh. “A,” Attach. “2” at 13. Accordingly, Petitioner’s due process rights were not

6

violated as a result of the other inmate not being called as a witness during the DHO

7

hearing for Incident Report Number 2462624.

8

b. Ground Two: Finding of guilt after an accident

9

Petitioner asserts that his due process rights were violated when the DHO found

10

him guilty of destruction of government property. Petition (Doc. 1) at 6. Petitioner

11

argues that he broke the window accidentally when he had a medical emergency and

12

there was no response to his pressing of the medical duress button. Id. The record before

13

the Court indicates that Petitioner received written notice of the charges; had the

14

opportunity to call witnesses and present documentary evidence; had a staff

15

representative; and received a statement of the evidence relied on by the prison officials,

16

and the reasons for disciplinary actions. See Response (Doc. 19), White Decl. (Exh.

17

“A”), Incident Report No. 2446852 (Attach. “3”). DHO White relied on Petitioner’s

18

admission of guilt, photographs of the broken window, and the facts presented in the

19

written report in finding Petitioner “committed the prohibited act of destruction of

20

government property, Code 218[.]” Response (Doc. 19), Exh. “A,” Attach. “3” at 7.

21

DHO White noted that “[p]roperty intentionally or unintentionally destroyed by inmates

22

prevents the use of those funds for other purposes[,] . . . [and] [w]hen [Petitioner]

23

destroyed/damaged Government property [he] caused a monetary loss to the U.S.

24

Government.” Id. The requirements of due process are satisfied if “there is some

25

evidence from which the conclusion of the administrative tribunal could be deduced[.]”

26

Hill, 472 U.S. at 455, 105 S.Ct. at 2774 (quoting United States ex rel. Vajtauer v.

27

Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 303, 71 L.Ed. 560

28

(1927)). Petitioner admitted that he broke the glass, albeit by accident. Petition (Doc. 1)

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1

at 6; Response (Doc. 19), Exh. “A,” Attach. “3” at 2, 6. The DHO relied on Petitioner’s

2

statement, as well as photographs of the broken window, and the statement contained in

3

SO Higgins’s written report in finding Petitioner guilty. Id., Exh. “A,” Attach. “3” at 7.

4

As such, there is “some evidence” to support the DHO’s finding, and Petitioner received

5

the requisite due process.

6

c. Ground Three: Finding of guilt regarding narcotics

7

Petitioner asserts that his due process rights were violated when the DHO found

8

him guilty of possession of narcotics. Petition (Doc. 1) at 7. Petitioner argues that the

9

DHO stated that there were no laboratory results, and refused a video review in violation

10

of his rights. Id. Petitioner further asserts that the reporting officer was retaliating

11

against him, and that he had “seen this staff member give another inmate drugs that

12

morning that he stated my empty pill bottle tested possitive [sic] on a nik test, to which

13

tthe [sic] two different medications will give off a false positive.” Id. The record before

14

the Court indicates that Petitioner received written notice of the charges;1 had the

15

opportunity to call witnesses and present documentary evidence; had a staff

16

representative; and received a statement of the evidence relied on by the prison officials,

17

and the reasons for disciplinary actions. See Response (Doc. 19), White Decl. (Exh.

18

“A”), Incident Report No. 2464836 (Attach. “4”). Petitioner requested Nurse Flagg as a

19

witness; however, DHO White did not call her to appear during the hearing, because she

20

was not present during the incident. Id., Exh. “A,” Attach. “4” at 9. The DHO did

21

communicate with Nurse Flagg via e-mail regarding Petitioner’s claims. Id., Exh. “A,”

22

Attach. “4” at 7–8. In that correspondence, Nurse Flagg indicated that Petitioner “did not

23
24
25
26
27
28

1

At the DHO hearing, Petitioner claimed that he had not received a written report of the
charges; however, the Court files indicates that Lt. Perkins investigated the incident, and
provided Petitioner a copy of the incident report. “[T]he function of notice [of a claimed
violation] is to give the charged party a chance to marshal the facts in his defense and to clarify
what the charges are, in fact.” Wolff, 418 U.S. at 564, 94 S.Ct. at 2978. Petitioner does not
claim that he did not receive notice of the DHO hearing, or that he was unable to “marshal the
facts in his defense.” Petitioner’s conclusory allegation that he did not receive the Incident
Report is insufficient to establish a due process violation. See Jones v. Gomez, 66 F.3d 199,
204–05 (9th Cir. 1995) (conclusory allegations unsupported by a statement of specific facts do
not warrant federal habeas relief); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (same).

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1

have a prescription that would test positive for codeine or amphehetamines [sic].” Id.,

2

Exh. “A,” Attach. “4” at 7, 10. The requirements of due process are satisfied if “there is

3

some evidence from which the conclusion of the administrative tribunal could be

4

deduced[.]” Hill, 472 U.S. at 455, 105 S.Ct. at 2774 (quoting United States ex rel.

5

Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 303, 71

6

L.Ed. 560 (1927)). DHO White considered the staff member’s written account of the

7

incident, as well as Petitioner’s denial; a photograph of the pill bottle and NIK test

8

positive for codeine and amphetamines; and Nurse Flagg’s statement that the medication

9

she provided to Petitioner would not result in such a positive. As such, there is “some

10

evidence” to support the DHO’s finding, and Petitioner received the requisite due

11

process.

12

d. Impartiality of DHO

13

Petitioner asserts that “[o]n all three of Incident Reports, the DHO Officer had

14

always stated that she will always believe her fellow officers before she will believe an

15

inmate.” Petition (Doc. 1) at 8. Petitioner argues that “[t]he DHO officer is suppose [sic]

16

to be an independant [sic] person and is suppose [sic] to be unbiased towards us inmates

17

and there [sic] job is to review all of the evidence of both parties and if there is any

18

weight that is [sic] inmate is telling the truth then they should rule in favor of the inmate.”

19

Id. Petitioner further asserts that his due process rights were violated because of an

20

alleged “failure to have an unbiased DHO hearing officer.” Id.

21

“[D]ue process is satisfied as long as no member of the disciplinary board has

22

been involved in the investigation or prosecution of the particular case, or has had any

23

other form of personal involvement in the case.” Wolff v. McDonnell, 418 U.S. 539, 592,

24

94 S.Ct. 2963, 2992, 41 L.Ed.2d 935 (1974) (Marshall, J. concurring in part and

25

dissenting in part). Here, DHO White did not participate in the original incident or its

26

investigation, her only role was as the hearing officer. See Response (Doc. 19), White

27

Decl. (Exh. “A”), Incident Rpt. Nos. 2462624, 2446852, 2464836 (Attach. “2,” “3,” &

28

“4”). Petitioner has not demonstrated any actual bias or impartiality on the part of the

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1

DHO, and there is no evidence before the Court to suggest that the DHO’s decision was

2

arbitrary. Accordingly, Petitioner’s claim regarding DHO bias must fail.

3

e. Unspecified claims

4

Petitioner does not allege any other irregularities in his disciplinary proceedings.

5

Beyond the specific claims discussed in Sections II.C.2.a.–d., supra, the record indicates

6

that in each instance, Petitioner received written notice of the charges; had the

7

opportunity to call witnesses; present documentary evidence; have a staff representative;

8

and received a statement of the evidence relied on by the prison officials, and the reasons

9

for disciplinary actions. Furthermore, there is sufficient evidence to support the decisions

10

of the DHO.

11

proceedings.

Accordingly, Petitioner received the requisite due process in his

12
13

III.

CONCLUSION

14

Based on the foregoing, the Court finds that the due process requirements as

15

delineated by Wolff were met in this case. Additionally, the Court finds that the DHO

16

findings were supported by “some evidence” as required by Hill.

17

Petitioner’s Petition (Doc. 1) shall be denied. Accordingly, IT IS HEREBY ORDERED

18

that:

19

(1)

Therefore, the

J. T. Shartle, Warden, is SUBSTITUTED as the sole Respondent, replacing

20

Charles E. Samuels, Jr. and Louis Winn pursuant to Rule 25(d) of the Federal Rules of

21

Civil Procedure and Rule 43(c)(2) of the Federal Rules of Appellate Procedure; and

22
23

(2)

Petitioner’s Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus

by a Person in Federal Custody (Doc. 1) is DENIED; and

24

(3)

25

Dated this 13th day of February, 2018.

The Clerk of the Court shall enter judgment and close its file in this matter.

26
27
28

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