Ramirez v. Benov

Filing 19

FINDINGS and RECOMMENDATIONS Recommending that the 1 Petition for Writ of Habeas Corpus be Dismissed as Moot and the Clerk be Directed to Close the Action signed by Magistrate Judge Michael J. Seng on 7/14/2014. Referred to Judge Anthony W. Ishii. Objections to F&R due by 8/18/2014. (Sant Agata, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:13-cv-01906 AWI MJS (HC)
ARMANDO PEREZ RAMIREZ,

FINDINGS AND RECOMMENDATION
Petitioner, REGARDING RESPONDENT’S MOTION
TO DISMISS

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v.

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[Doc. 15]
MICHAEL L. BENOV,
Respondent.

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Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been

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referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302-

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304. Pending before the Court is the Respondent's March 3, 2014, motion to dismiss the

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petition as moot, and a supplement thereto filed May 22, 2014. Petitioner filed an

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opposition to the motion on April 3, 2014.

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I.

BACKGROUND

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Petitioner, an inmate of the Taft Correctional Institution (TCI), challenges the

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disallowance of twenty-seven (27) days of good conduct time credit Petitioner suffered

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(for stealing three bulbs of garlic from the chow hall) as a result of a May 18, 2011,

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prison disciplinary finding at TCI. (ECF No. 1 at 13-15.) Petitioner challenges the loss of
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credit and seeks invalidation of the sanctions.

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Petitioner raises the following claims in his petition: 1) because the disciplinary

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hearing officer (DHO) was not an employee of the Federal Bureau of Prisons (BOP) and

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thus lacked the authority to conduct the disciplinary hearings and make findings resulting

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in punishment, including disallowance of good time credit, Petitioner suffered a violation

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of his right to due process of law; and 2) because the DHO was not an employee of the

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BOP but rather was an employee of a private entity with a financial interest in the

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disallowance of good time credits, Petitioner's due process right to an independent and

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impartial decision maker at the disciplinary hearings were violated. (Id. at 1-9.)

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Respondent moves for dismissal of the petition as moot because on February 27,

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2014, the disciplinary charges were reheard via teleconference by a certified disciplinary

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hearing officer of the BOP. At the rehearing, the BOP DHO found that Petitioner had

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committed the prohibited misconduct and assessed the same disallowance of good

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conduct time credit (twenty-seven days). (Decl., ECF No. 18.)

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II.

MOOTNESS

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Federal courts lack jurisdiction to decide cases that are moot because the courts'

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constitutional authority extends to only actual cases or controversies. Iron Arrow Honor

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Society v. Heckler, 464 U.S. 67, 70-71, 104 S. Ct. 373, 78 L. Ed. 2d 58 (1983). Article III

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requires a case or controversy in which a litigant has a personal stake in the outcome of

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the suit throughout all stages of federal judicial proceedings and has suffered some

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actual injury that can be redressed by a favorable judicial decision. Id. A petition for writ

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of habeas corpus becomes moot when it no longer presents a case or controversy under

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Article III, § 2 of the Constitution. Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003).

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A petition for writ of habeas corpus is moot where a petitioner's claim for relief cannot be

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redressed by a favorable decision of the court issuing a writ of habeas corpus. Burnett v.

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Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005) (quoting Spencer v. Kemna, 523 U.S. 1,

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7, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998)). Mootness is jurisdictional. See, Cole v.

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Oroville Union High School District, 228 F.3d 1092, 1098-99 (9th Cir. 2000). Thus, a
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moot petition must be dismissed because nothing remains before the Court to be

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remedied. Spencer v. Kemna, 523 U.S. 1, 18, 118 S. Ct. 978, 140 L. Ed. 2d 43.

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Here, documentation submitted by Respondent in support of the motion to

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dismiss demonstrates that the claims initially alleged by Petitioner are no longer in

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controversy. The charges were reheard by an officer who had the precise qualifications

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that Petitioner had alleged were required due process principles and pertinent

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regulations. It is undisputed that the findings and sanctions that constituted the object of

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Petitioner's challenges in the petition have now been superseded by the findings and

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sanctions of the certified BOP DHO.

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When, because of intervening events, a court cannot give any effectual relief in

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favor of the petitioner, the proceeding should be dismissed as moot. Calderon v. Moore,

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518 U.S. 149, 150, 116 S. Ct. 2066, 135 L. Ed. 2d 453 (1996). In the present case, it

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appears that the only relief that Petitioner sought was invalidation of the findings and

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associated sanctions. It has been demonstrated that the rehearing of the incident report

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by an indisputably qualified DHO has effectuated the relief sought by Petitioner. Thus, it

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is no longer possible for this Court to issue a decision redressing the injury.

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Petitioner argues that the controversy is not moot because the rehearing was part

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of disciplinary proceedings that were wholly invalid or unconstitutional. The asserted

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invalidity is based on the fact that in the earlier stages of the disciplinary process,

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employees of the private prison management company, who did not constitute BOP

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staff, participated in violation of various regulations, including 28 C.F.R. § 541.5, which

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requires "staff" to witness or suspect a violation and issue an incident report, 28 C.F.R. §

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541.5(a); requires a "Bureau staff member" to investigate the incident report, 28 C.F.R. §

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541.5(b); and directs that it is "staff" who ordinarily serve on a unit disciplinary

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committee, a body which considers disciplinary charges before the charges are heard by

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a DHO, § 541.7(b). Petitioner argues that the hearing and rehearing process evinced

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deliberate indifference to his liberties and violated his Fifth Amendment right to equal

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protection of the laws and his Eighth Amendment right to be free from cruel and unusual
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punishment.

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However, the documentation attached to the motion to dismiss shows that the

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BOP DHO considered not only the incident report and investigation, including

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photographic evidence, but also Petitioner's admissions of the truth with in the incident

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report made during the original investigation and hearing. (ECF No. 18, Attach. 3.) The

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photographs and Petitioner's repeated admissions provide strong and independent

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support for the finding of misconduct and also undercut Petitioner's general allegation

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that he suffered a taint from the participation of non-BOP staff in the earlier stages of the

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disciplinary process.

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Further, the documentation establishes that Petitioner received all procedural due

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process due under Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935

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(1974). Procedural due process of law requires that where the state has made good time

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subject to forfeiture only for serious misbehavior, then prisoners subject to a loss of

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good-time credits must be given advance written notice of the claimed violation, a right to

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call witnesses and present documentary evidence where it would not be unduly

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hazardous to institutional safety or correctional goals, and a written statement of the

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finder of fact as to the evidence relied upon and the reasons for disciplinary action taken.

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Wolff v. McDonnell, 418 U.S. at 563-64. Further, if the inmate is illiterate, or the issue so

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complex that it is unlikely that the inmate will be able to collect and present the evidence

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necessary for an adequate comprehension of the case, the inmate should have access

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to help from staff or a sufficiently competent inmate designated by the staff. However,

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confrontation, cross-examination, and counsel are not required. Wolff, 418 U.S. at 568-

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70. Where good-time credits are a protected liberty interest, the decision to revoke

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credits must also be supported by some evidence in the record. Superintendent v. Hill,

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472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985).

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Here, Petitioner's admission of responsibility with regard to the incident report

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precludes any claim of a lack of evidence to support the disciplinary finding. Likewise,

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the documentation shows that Petitioner received adequate notice; waived witnesses,
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staff representation, and presentation of evidence; and received a written statement of

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the decision. (ECF No. 18, Attach. 3.) From these circumstances, the Court concludes

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that Petitioner has not suffered any prejudice from either participation of non-BOP

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staffers in the earlier stages of the disciplinary process or any delay experienced in the

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course of the rehearing process.

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Generally a failure to meet a prison guideline regarding a disciplinary hearing

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would not alone constitute a denial of due process. See Bostic v. Carlson, 884 F.2d

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1267, 1270 (9th Cir. 1989). In the absence of controlling authority, the Court notes that

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several courts have concluded that to establish a denial of due process of law, prejudice

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is generally required. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710,

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123 L. Ed. 2d 353 (1993) (proceeding pursuant to 28 U.S.C. § 2254); see also Tien v.

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Sisto, Civ. No. 2:07 cv-02436-VAP (HC), 2010 U.S. Dist. LEXIS 39749, 2010 WL

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1236308, at *4 (E.D.Cal. Mar. 26, 2010) (recognizing that while neither the United States

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Supreme Court nor the Ninth Circuit Court of Appeals has spoken on the issue,

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numerous federal Courts of Appeals, as well as courts in this district, have held that a

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prisoner must show prejudice to state a habeas claim based on an alleged due process

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violation in a disciplinary proceeding, and citing Pilgrim v. Luther, 571 F.3d 201, 206 (2d

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Cir. 2009); Howard v. United States Bureau of Prisons, 487 F.3d 808, 813 (10th Cir.

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2007); Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48,

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53 (3d Cir. 1992); Poon v. Carey, no. Civ. S 05 0801 JAM EFB P, 2008 U.S. Dist. LEXIS

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105665, 2008 WL 5381964, *5 (E.D.Cal. Dec. 22, 2008); and Gonzalez v. Clark, no.

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1:07 CV 0220 AWI JMD HC, 2008 U.S. Dist. LEXIS 82011, 2008 WL 4601495, at *4

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(E.D.Cal. Oct. 15, 2008)); see also Smith v. United States Parole Commission, 875 F.2d

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1361, 1368-69 (9th Cir. 1989) (holding in a § 2241 proceeding that a prisoner, who

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challenged the government's delayed compliance with a procedural regulation that

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required counsel to be appointed before a record review in parole revocation

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proceedings, was required to demonstrate prejudice to be entitled to habeas relief);

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Standlee v. Rhay, 557 F.2d 1303, 1307-08 (9th Cir. 1977) (stating that burden is on a
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parolee to demonstrate that failure to permit a witness's live testimony at a revocation

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hearing was so prejudicial as to violate due process).

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In summary, the claims in the petition before the Court are no longer subject to

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redress by the Court. Further, the factual accuracy of the findings on rehearing are not

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seriously disputed, the record establishes that Petitioner received procedural due

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process of law, and there is no indication that Petitioner suffered any legally cognizable

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prejudice.

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Although Petitioner now alleges that other details of the early stages of the

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prison's disciplinary program were not conducted consistently with applicable

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regulations, the foregoing analysis leads the Court to conclude that any such alleged

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deficiencies did not bear on the legality or duration of Petitioner's confinement. As such,

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they do not fall within the core of habeas corpus jurisdiction.

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A federal court may not entertain an action over which it has no jurisdiction.

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Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). Relief by way of a writ of

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habeas corpus extends to a person in custody under the authority of the United States if

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the petitioner can show that he is "in custody in violation of the Constitution or laws or

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treaties of the United States." 28 U.S.C. § 2241(c)(1) & (3). A habeas corpus action is

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the proper mechanism for a prisoner to challenge the fact or duration of his confinement.

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Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973);

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Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990) (holding in a Bivens action that a

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claim that time spent serving a state sentence should have been credited against a

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federal sentence concerned the fact or duration of confinement and thus should have

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been construed as a petition for writ of habeas corpus pursuant to § 28 U.S.C. § 2241,

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but that to the extent that the complaint sought damages for civil rights violations, it

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should be construed as a Bivens action); Crawford v. Bell, 599 F.2d 890, 891-892 (9th

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Cir. 1979) (upholding dismissal of a petition challenging conditions of confinement and

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noting that the writ of habeas corpus has traditionally been limited to attacks upon the

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legality or duration of confinement); see, Greenhill v. Lappin, 376 Fed. Appx. 757, 7576

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58 (9th Cir. 2010) (unpublished) (holding that the appropriate remedy for a federal

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prisoner's claim that relates to the conditions of his confinement is a civil rights action

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under Bivens); but see Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (holding

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that habeas corpus is available pursuant to § 2241 for claims concerning denial of good

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time credits and subjection to greater restrictions of liberty, such as disciplinary

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segregation, without due process of law); Cardenas v. Adler, no. 1:09-cv-00831-AWI-

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JLT-HC, 2010 U.S. Dist. LEXIS 52556, 2010 WL 2180378 (E.D.Cal., May 28, 2010)

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(holding that a petitioner's challenge to the constitutionality of the sanction of disciplinary

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segregation and his claim that the disciplinary proceedings were the product of

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retaliation by prison staff were cognizable in a habeas proceeding pursuant to § 2241).

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Claims concerning prison conditions brought pursuant to § 2241 have been

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dismissed in this district for lack of subject matter jurisdiction with indications that an

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action pursuant to Bivens is appropriate. See, e.g., Dyson v. Rios, no. 1:10-cv-00382-

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DLB (HC), 2010 U.S. Dist. LEXIS 97607, 2010 WL 3516358, *3 (E.D.Cal. Sept. 2, 2010)

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(a claim challenging placement in a special management housing unit in connection with

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a disciplinary violation); Burnette v. Smith, no. CIV S-08-2178 DAD P, 2009 U.S. Dist.

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LEXIS 20219, 2009 WL 667199 at *1 (E.D.Cal. Mar. 13, 2009) (a petition seeking a

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transfer and prevention of retaliation by prison staff); Evans v. U.S. Penitentiary, no.

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1:07-CV-01611 OWW GSA HC, 2007 U.S. Dist. LEXIS 87181, 2007 WL 4212339 at *1

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(E.D.Cal. Nov. 27, 2007) (claims brought pursuant to § 2241 regarding a transfer and

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inadequate medical care).

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Here, to the extent that any claims remain before the Court, the claims concern

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conditions of confinement that do not bear a relationship to, or have any effect on, the

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legality or duration of Petitioner's confinement. It has long been established that habeas

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corpus should be used as a vehicle to determine the lawfulness of custody and not as a

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writ of error. See Eagles v. U.S. ex rel. Samuels, 329 U.S. 304, 311-12 (1946), 67 S. Ct.

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313, 91 L. Ed. 308. Habeas corpus proceedings are not an appropriate forum for claims

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regarding disciplinary procedures if the effect of the procedures on the length of the
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inmate's sentence is only speculative or incidental. Sisk v. Branch, 974 F.2d 116, 117-

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118 (9th Cir. 1992). The Court concludes that if any claims remain before the Court, they

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are not within the core of habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241.

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In summary, Petitioner has not asserted any factual or legal basis that would

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preclude a finding of mootness. The Court thus concludes that the matter is moot

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because the Court may no longer grant any effective relief. See, Badea v. Cox, 931 F.2d

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573, 574 (9th Cir. 1991) (holding that a habeas claim was moot where a former inmate

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sought placement in a community treatment center but was subsequently released on

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parole and no longer sought such a transfer); Kittel v. Thomas, 620 F.3d 949 (9th Cir.

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2010) (dismissing as moot a petition seeking early release where the petitioner was

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released and where there was no live, justiciable question on which the parties

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disagreed).

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Accordingly, it will be recommended that the Court grant the motion to dismiss the

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petition as moot.

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III.

RECOMMENDATIONS

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Accordingly, it is RECOMMENDED that:

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1) The petition for writ of habeas corpus be DISMISSED as moot; and

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2) The Clerk be DIRECTED to close the action.

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These findings and recommendations are submitted to the United States District

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Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636

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(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court,

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Eastern District of California. Within thirty (30) days after being served with a copy, any

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party may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned "Objections to Magistrate Judge's Findings and

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Recommendations." Replies to the objections shall be served and filed within fourteen

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(14) days (plus three (3) days if served by mail) after service of the objections. The Court

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will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The

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parties are advised that failure to file objections within the specified time may waive the
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right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

July 14, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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