Bolanos-Renteria v. Benov

Filing 15

FINDINGS and RECOMMENDATIONS to Grant Respondent's Motion to Dismiss the Petition 13 ; FINDINGS and RECOMMENDATIONS to Dismiss the Petition for Writ of Habeas Corpus as Moot 1 and to Direct the Clerk to Close the Action, signed by Magistrate Judge Sheila K. Oberto on 11/6/14: Thirty-Day Deadline. (Hellings, J)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
11 ENAR BOLANOS-RENTERIA,

Case No. 1:14-cv-00488-AWI-SKO-HC

12

FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
DISMISS THE PETITION (DOC. 13)

13

Petitioner,
v.

14
15

MICHAEL L. BENOV,
Respondent.

16

FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION FOR WRIT OF
HABEAS CORPUS AS MOOT (DOC. 1)
AND TO DIRECT THE CLERK TO CLOSE
THE ACTION

17
18
19
20
21
22
23
24
25
26
27
28

Petitioner is a federal prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241.

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court is the Respondent’s motion to dismiss the
petition as moot, which was filed on July 16, 2014, and supported
with documentation.

Petitioner filed opposition to the motion on

September 24, 2014.

Although the fourteen-day period for filing a

reply has passed, no reply has been filed.
I.

Background

Petitioner, an inmate of the Taft Correctional Institution
1

1 (TCI), challenges the disallowance of forty-one days of good conduct
2 time credit, as well as one month in disciplinary segregation and
3 loss of privileges for a year, that Petitioner suffered as a result
4 of prison disciplinary findings that he engaged in the prohibited
5 conduct of use of a controlled substance or paraphernalia.

(Pet.,

6 doc. 1, 1-12.)
7

Petitioner seeks invalidation of the sanctions as well as

8 injunctive relief.
9 petition:

Petitioner raises the following claims in the

1) because the disciplinary hearing officer (DHO) was not

10 an employee of the Federal Bureau of Prisons (BOP) and lacked the
11 authority to conduct the disciplinary hearing and make findings
12 resulting in punishment, including disallowance of good conduct time
13 credit, Petitioner suffered a violation of his due process rights;
14 and 2) because the DHO was not an employee of the BOP but an
15 employee of a private entity with a financial interest in the
16 disallowance of good time credits, Petitioner’s due process right to
17 an independent and impartial decision maker at the disciplinary
18 hearing was violated.
19

(Id. at 1-9.)

Respondent moves for dismissal of the petition as moot because

20 the disciplinary charges were reheard via teleconference on June 17,
21 2014, by a certified disciplinary hearing officer of the BOP.

At

22 the rehearing, Petitioner admitted the violation, explaining that he
23 had felt sick, and someone had offered him medication.
24 15.)

(Doc. 13-1,

The BOP DHO found that Petitioner had committed the prohibited

25 misconduct, and he assessed the same disallowance of good conduct
26 time credit (forty-one days) and imposed the same month-long
27 placement in disciplinary segregation and year’s loss of privileges.
28 (Doc. 13-1, 16-17.)
2

1

II.

Mootness

2

Federal courts lack jurisdiction to decide cases that are moot

3 because the courts= constitutional authority extends to only actual
4 cases or controversies.

Iron Arrow Honor Society v. Heckler, 464

5 U.S. 67, 70-71 (1983).

Article III requires a case or controversy

6 in which a litigant has a personal stake in the outcome of the suit
7 throughout all stages of federal judicial proceedings and has
8 suffered some actual injury that can be redressed by a favorable
9 judicial decision.

Id.

A petition for writ of habeas corpus

10 becomes moot when it no longer presents a case or controversy under
11 Article III, ' 2 of the Constitution.
12 477, 479 (9th Cir. 2003).

Wilson v. Terhune, 319 F.3d

A petition for writ of habeas corpus is

13 moot where a petitioner=s claim for relief cannot be redressed by a
14 favorable decision of the court issuing a writ of habeas corpus.
15 Burnett v. Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005) (quoting
16 Spencer v. Kemna, 523 U.S. 1, 7 (1998)).
17 jurisdictional.

Mootness is

See, Cole v. Oroville Union High School District,

18 228 F.3d 1092, 1098-99 (9th Cir. 2000).

Thus, a moot petition must

19 be dismissed because nothing remains before the Court to be
20 remedied.
21

Spencer v. Kemna, 523 U.S. 1, 18.

Here, documentation submitted by Respondent in support of the

22 motion to dismiss demonstrates that the claims initially alleged by
23 Petitioner are no longer in controversy.

The charges were reheard

24 by an officer who had the precise qualifications that Petitioner had
25 alleged were required by principles of due process of law and the
26 pertinent regulations.

It is undisputed that the findings and

27 sanctions that constituted the object of Petitioner’s challenges in
28
3

1 the petition have now been superseded by the findings and sanctions
2 of the certified BOP DHO.
3

When, because of intervening events, a court cannot give any

4 effectual relief in favor of the petitioner, the proceeding should
5 be dismissed as moot.

Calderon v. Moore, 518 U.S. 149, 150 (1996).

6 It appears that the only relief that Petitioner sought was
7 invalidation of the findings and associated sanctions.

It has been

8 demonstrated that the rehearing of the incident report by an
9 indisputably qualified DHO has effectuated the relief sought by
10 Petitioner.

Thus, this Court can no longer issue a decision

11 redressing the injury.
12

Petitioner contends the controversy is not moot because the

13 rehearing was part of disciplinary proceedings that were wholly
14 invalid or unconstitutional.

The asserted invalidity is based on

15 the fact that in the earlier stages of the disciplinary process,
16 employees of the private prison management company, who did not
17 constitute BOP staff, participated in violation of various
18 regulations, including 28 C.F.R. § 541.5(a), which requires “staff”
19 to witness or suspect a violation and issue an incident report; 28
20 C.F.R. § 541.5(b) which requires a “Bureau staff member” to
21 investigate the incident report; and § 541.7(b), which provides it
22 is “staff” who ordinarily serve on a unit disciplinary committee
23 (UDC) -- a body which considers disciplinary charges before the
24 charges are heard by a DHO.

Petitioner argues the hearing and

25 rehearing processes evinced deliberate indifference to his liberties
26 and violated his Fifth Amendment right to equal protection of the
27 laws and his Eighth Amendment right to be free from cruel and
28 unusual punishment.
4

1

The documentation attached to the petition shows that the BOP

2 DHO considered the incident report and investigation, and also the
3 results of laboratory testing of Petitioner’s urine, which revealed
4 the presence of methamphetamine; evidence that Petitioner lacked a
5 prescription for any medication that contained methamphetamine; and
6 Petitioner’s admission that he had taken the substance.
7 16.)

(Doc. 13-1,

This evidence supports the finding of misconduct and also

8 undercuts Petitioner’s general allegation that he suffered a taint
9 from the participation of non-BOP staff in the earlier stages of the
10 disciplinary process.
11

The documentation also establishes that Petitioner received all

12 procedural due process due under Wolff v. McDonnell, 418 U.S. 539
13 (1974).

(Doc. 13-1 at 11-13, 15-17.)

Procedural due process

14 requires that where the state has made good time subject to
15 forfeiture only for serious misbehavior, prisoners subject to a loss
16 of good-time credits must be given advance written notice of the
17 claimed violation, a right to call witnesses and present documentary
18 evidence where it would not be unduly hazardous to institutional
19 safety or correctional goals, and a written statement of the finder
20 of fact as to the evidence relied upon and the reasons for the
21 disciplinary action taken.

Wolff v. McDonnell, 418 U.S. at 563-64.

22 If the inmate is illiterate, or the issue is so complex that it is
23 unlikely the inmate will be able to collect and present the evidence
24 necessary for an adequate comprehension of the case, the inmate
25 should have access to help from staff or a sufficiently competent
26 inmate designated by the staff.

However, confrontation, cross-

27 examination, and counsel are not required.
28 70.

Wolff, 418 U.S. at 568-

Where good conduct time credits are a protected liberty
5

1 interest, the decision to revoke credits must also be supported by
2 some evidence in the record.

Superintendent v. Hill, 472 U.S. 445,

3 454 (1985).
4

Here, the forensic evidence and Petitioner’s admission preclude

5 a claim of a lack of evidence to support the disciplinary finding.
6 The documentation also shows that Petitioner received adequate
7 notice; waived witnesses, staff representation, and presentation of
8 evidence; and received a written statement of the decision.
9 13-1 at 11-13, 15-17.)

(Doc.

The Court, therefore, concludes that

10 Petitioner has not suffered any prejudice from either participation
11 of non-BOP staffers in the earlier stages of the disciplinary
12 process or any delay experienced during the rehearing process.
13

Generally a failure to meet a prison guideline regarding a

14 disciplinary hearing would not alone constitute a denial of due
15 process.
16 1989).

See Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir.

To establish a denial of due process of law, prejudice is

17 generally required.

See Brecht v. Abrahamson, 507 U.S. 619, 637

18 (1993) (proceeding pursuant to 28 U.S.C. § 2254); see also Tien v.
19 Sisto, Civ. No. 2:07 cv-02436-VAP (HC), 2010 WL 1236308, at *4
20 (E.D.Cal. Mar. 26, 2010) (while neither the United States Supreme
21 Court nor the Ninth Circuit Court of Appeals has spoken on the
22 issue, numerous federal Courts of Appeals, as well as courts in this
23 district, have held that a prisoner must show prejudice to state a
24 habeas claim based on an alleged due process violation in a
25 disciplinary proceeding, and citing Pilgrim v. Luther, 571 F.3d 201,
26 206 (2d Cir. 2009); Howard v. United States Bureau of Prisons, 487
27 F.3d 808, 813 (10th Cir. 2007); Piggie v. Cotton, 342 F.3d 660, 666
28 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992);
6

1 Poon v. Carey, no. Civ. S 05 0801 JAM EFB P, 2008 WL 5381964, *5
2 (E.D.Cal. Dec. 22, 2008); and Gonzalez v. Clark, no. 1:07 CV 0220
3 AWI JMD HC, 2008 WL 4601495, at *4 (E.D.Cal. Oct. 15, 2008)); see
4 also Smith v. United States Parole Commission, 875 F.2d 1361, 13685 69 (9th Cir. 1989) (in a § 2241 proceeding that a prisoner, who
6 challenged the government’s delayed compliance with a procedural
7 regulation that required counsel to be appointed before a record
8 review in parole revocation proceedings, was required to demonstrate
9 prejudice to be entitled to habeas relief); Standlee v. Rhay, 557
10 F.2d 1303, 1307-08 (9th Cir. 1977) (burden is on a parolee to
11 demonstrate that failure to permit a witness’s live testimony at a
12 revocation hearing was so prejudicial as to violate due process).
13

Here, in view of the passage of time since the disciplinary

14 misconduct, Petitioner asks how he can call the employees who wrote
15 the rules violation report, investigated the matter, and handled the
16 UDC hearing.

However, Petitioner does not suggest what evidence

17 they could have provided that might have affected the result or the
18 fairness of the proceedings.

Further, Petitioner did not seek to

19 call any of these witnesses at either the initial hearing or the
20 rehearing.
21

(Doc. 13-1 at 11-3, 15-17.)

Petitioner suggests in a general fashion in his opposition that

22 the rehearing process denied him his right to equal protection of
23 the laws (doc. 14, 3).

However, Petitioner has not shown any

24 factual basis or legal theory for such a violation.

The Fourteenth

25 Amendment's Equal Protection Clause directs that all persons
26 similarly situated be treated alike.

City of Cleburne, Tex. v.

27 Cleburne Living Center, 473 U.S. 432, 439 (1985).

Petitioner can

28 establish an equal protection claim by showing that he was
7

1 intentionally discriminated against based on his membership in a
2 protected class (See, Lee v. City of Los Angeles, 250 F.3d 668, 686
3 (9th Cir. 2001)), or that similarly situated individuals were
4 intentionally treated differently without a rational basis for the
5 difference in treatment (See, Village of Willowbrook v. Olech, 528
6 U.S. 562, 564 (2000) (per curiam); Engquist v. Oregon Department of
7 Agriculture, 553 U.S. 591, 601-02 (2008)).

Petitioner has not shown

8 any membership in a protected class or intentionally disparate
9 treatment with respect to similarly situated persons.
10

With respect to Petitioner’s generalized characterization of

11 the BOP’s rehearing procedure as cruel and unusual punishment that
12 was deliberately indifferent to his rights (doc. 14, 3), there is no
13 basis for habeas relief because Petitioner’s sanction was neither
14 disproportionate nor excessive with regard to the duration of his
15 confinement.
16

In summary, the claims in the petition before the Court

17 regarding the DHO hearing are no longer subject to redress by the
18 Court.

The factual accuracy of the findings on rehearing are fully

19 supported by the record, the record establishes that Petitioner
20 received procedural due process of law, and there is no indication
21 that Petitioner suffered any legally cognizable prejudice.

Although

22 Petitioner now alleges that other details of the early stages of the
23 prison’s disciplinary program are contrary to regulation, these
24 aspects of Petitioner’s confinement do not bear any relationship to
25 the legality or duration of Petitioner’s confinement, and thus do
26 not fall within the core of habeas corpus jurisdiction.
27

A federal court may not entertain an action over which it has

28 no jurisdiction.

Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir.
8

1 2000).

Relief by way of a writ of habeas corpus extends to a person

2 in custody under the authority of the United States if the
3
4
5
6

petitioner can show that he is “in custody in violation of the
Constitution or laws or treaties of the United States.”
§ 2241(c)(1) & (3).

28 U.S.C.

A habeas corpus action is the proper mechanism

7 for a prisoner to challenge the fact or duration of his confinement.
8 Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Tucker v. Carlson,
9 925 F.2d 330, 332 (9th Cir. 1990) (holding in a Bivens1 action that a
10
11
12
13

claim that time spent serving a state sentence should have been
credited against a federal sentence concerned the fact or duration
of confinement and should have been construed as a petition for writ

14 of habeas corpus pursuant to ' 28 U.S.C. ' 2241, but to the extent
15 the complaint sought damages for civil rights violations, it should
16 be construed as a Bivens action); Crawford v. Bell, 599 F.2d 890,
17
891B892 (9th Cir. 1979) (upholding dismissal of a petition
18
challenging conditions of confinement and noting that the writ of
19
20 habeas corpus has traditionally been limited to attacks upon the
21 legality or duration of confinement); see, Greenhill v. Lappin, 376
22 Fed. Appx. 757, 757-58 (9th Cir. 2010) (unpublished) (appropriate
23
24
25
26

remedy for a federal prisoner's claim that relates to the conditions
of his confinement is a civil rights action under Bivens); but see
Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (holding that

27
28

1

The reference is to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).

9

1 habeas corpus is available pursuant to § 2241 for claims concerning
2 denial of good time credits and subjection to greater restrictions
3
4
5
6

of liberty, such as disciplinary segregation, without due process of
law); Cardenas v. Adler, no. 1:09-cv-00831-AWI-JLT-HC, 2010 WL
2180378 (E.D.Cal., May 28, 2010) (petitioner's challenge to the

7 constitutionality of the sanction of disciplinary segregation and
8 his claim that the disciplinary proceedings were the product of
9 retaliation by prison staff were cognizable in a habeas proceeding
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

pursuant to ' 2241).
Claims concerning various prison conditions brought pursuant to
' 2241 have been dismissed in this district for lack of subject
matter jurisdiction with indications that an action pursuant to
Bivens is appropriate.

See, e.g., Dyson v. Rios, no. 1:10–cv–00382–

DLB(HC), 2010 WL 3516358, *3 (E.D.Cal. Sept. 2, 2010) (a claim
challenging placement in a special management housing unit in
connection with a disciplinary violation); Burnette v. Smith, no.
CIV S–08–2178 DAD P, 2009 WL 667199 at *1 (E.D.Cal. Mar. 13, 2009)
(a petition seeking a transfer and prevention of retaliation by
prison staff); Evans v. U.S. Penitentiary, no. 1:07-CV-01611 OWW GSA
HC, 2007 WL 4212339 at *1 (E.D.Cal. Nov. 27, 2007) (claims brought
pursuant to ' 2241 regarding a transfer and inadequate medical
care).
To the extent that any claims remain before the Court, the
claims concern conditions of confinement that do not bear a
relationship to, or have any effect on, the legality or duration of
Petitioner’s confinement.

Habeas corpus should be used as a vehicle
10

1 to determine the lawfulness of custody and not as a writ of error.
2 See Eagles v. U.S. ex rel. Samuels, 329 U.S. 304, 311-12 (1946).
3 Habeas corpus proceedings are not an appropriate forum for claims
4 regarding disciplinary procedures if the effect of the procedures on
5 the length of the inmate’s sentence is only speculative or
6 incidental.

Sisk v. Branch, 974 F.2d 116, 117-118 (9th Cir. 1992).

7 Any claims remaining before the Court are not within the core of
8 habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241, and
9 Petitioner has not shown he is entitled to relief as to such claims
10 in this proceeding.
11

In summary, Petitioner has not asserted any factual or legal

12 basis that would preclude a finding of mootness.

The matter is moot

13 because the Court may no longer grant any effective relief.

See,

14 Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (habeas claim was
15 moot where a former inmate sought placement in a community treatment
16 center but was subsequently released on parole and no longer sought
17 such a transfer); Kittel v. Thomas, 620 F.3d 949 (9th Cir. 2010)
18 (dismissing as moot a petition seeking early release where the
19 petitioner was released and where there was no live, justiciable
20 question on which the parties disagreed).
21

Accordingly, it will be recommended that the Court grant the

22 motion to dismiss the petition as moot.
23

III.

Recommendations

24

Based on the foregoing, it is RECOMMENDED that:

25

1) Respondent’s motion to dismiss the petition be GRANTED;

26

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

27 and

3) The Clerk be DIRECTED to close the action.

28

These findings and recommendations are submitted to the United
11

1 States District Court Judge assigned to the case, pursuant to the
2 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
3 Rules of Practice for the United States District Court, Eastern
4 District of California.

Within thirty (30) days after being served

5 with a copy, any party may file written objections with the Court
6 and serve a copy on all parties.

Such a document should be

7 captioned AObjections to Magistrate Judge=s Findings and
8 Recommendations.@

Replies to the objections shall be served and

9 filed within fourteen (14) days (plus three (3) days if served by
10 mail) after service of the objections.

The Court will then review

11 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
12 The parties are advised that failure to file objections within the
13 specified time may waive the right to appeal the District Court=s
14 order.

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

15
16
17 IT IS SO ORDERED.
18
19

Dated:

November 6, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
12