Contreras v. Apker

Filing 12

ORDER Directing Clerk's Office to Assign a District Judge to this Matter; FINDINGS and RECOMMENDATIONS to Deny Petitioner's Request for Injunctive Relief and to Grant Respondent's Motion to Dismiss re 8 , 9 , signed by Magistrate Ju dge Michael J. Seng on 5/11/17. Case is assigned to District Judge Anthony W. Ishii and Magistrate Judge Michael J. Seng. The New Case Number is: 1:16-cv-0295-AWI-MJS. Objections to F&R due by 6/14/2017. Referred to Judge Ishii. (Gonzalez, R)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 JUAN CONTRERAS, Petitioner, 14 15 16 v. CRAIG APKER, Warden Respondent. 17 Case No. 1:16-cv-00295-MJS ORDER DIRECTING CLERK’S OFFICE TO ASSIGN A DISTRICT JUDGE TO THIS MATTER FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S REQUEST FOR INJUNCTIVE RELIEF AND TO GRANT RESPONDENT’S MOTION TO DISMISS 18 (ECF NOS. 8, 9) 19 THIRTY (30) DAY OBJECTION DEADLINE 20 21 22 23 24 25 26 27 28 Petitioner is a former federal prisoner proceeding pro se with a petition for writ of habeas corpus under the authority of 28 U.S.C. § 2241. Respondent Craig Apker is represented by Roger Yang of the United States Attorney’s Office, Eastern District of California. Petitioner filed the instant petition for writ of habeas corpus on March 3, 2016. (Pet., ECF No. 1.) He contends that private contractors employed at Taft Correctional 1 Institution – rather than Bureau of Prisons employees – conducted his prison disciplinary 2 proceedings, in violation of 28 C.F.R. §§ 500.1(b) and 541.10. Plaintiff alleges that, as a 3 result of this defect, he was assessed a loss of good time credits in violation of his due 4 process rights. On May 2, 2016, Petitioner filed an “opposition” to the results of a later disciplinary 5 6 hearing and sought to enjoin the results of that hearing. (ECF No. 8.) 7 On May 3, 2016, Respondent filed a motion to dismiss the petition on mootness 8 grounds. (Motion, ECF No. 9.) On May 23, 2016, Petitioner filed a response. (ECF No. 9 10.) Respondent filed no reply and the time for doing so has passed. The matter stands 10 ready for adjudication. 11 I. Factual and Procedural History 12 Petitioner was sentenced on March 7, 2007 to a determinate 135-month term of 13 imprisonment for the offense of conspiracy to distribute more than 500 grams of 14 methamphetamine. (Motion, Exh. 1, Attachment 1; ECF No. 9-1 at 7.) At the time he filed 15 his petition, Petitioner was incarcerated at the Federal Correctional Institution in Taft, 16 California. (ECF No. 1.) 17 On June 16, 2012, Petitioner was accused of engaging in a sexual act. (Motion, 18 Exh. 1, Attachment 2; ECF No. 9-1 at 10.) A hearing on the disciplinary charge was 19 conducted on July 19, 2012. (Id.) The hearing was conducted by Discipline Hearing 20 Officer (“DHO”) Curtis Logan, an employee of Management & Training Corporation 21 (“MTC”), the private company contracted to operate Taft. (Id.; ECF No. 1.) DHO Logan 22 found the allegations true, disallowed 27 days of good conduct time, and imposed 60 23 days of disciplinary segregation. (Motion, Exh. 1, Attachment 2; ECF No. 9-1 at 11.) 24 Subsequently, in 2013, the United States Court of Appeals for the Ninth Circuit 25 decided Arrendondo-Virula v. Adler, 510 F. Appx. 581 (9th Cir. 2013). In this 26 unpublished opinion, the Ninth Circuit invalidated a disciplinary determination made by 27 Mr. Logan, as an employee of MTC, on the ground that he was not authorized to 28 2 1 discipline a prisoner pursuant to the then-current version of 28 C.F.R. § 541.10(b)(1) 2 (2010) because he was not an “employee of the Bureau of Prisons or Federal Prison 3 Industries, Inc.” Id. at 582 (citing 28 C.F.R. § 500.1(b)). 4 Petitioner underwent a new disciplinary hearing on April 19, 2016 with DHO 5 Richard Deveraux, an employee of the Bureau of Prisons. (Motion, Exh. 1, Attachment 2; 6 ECF No. 9-1 at 2, 14-16.) The new disciplinary hearing was conducted “based upon 7 pending litigation filed by [Petitioner] with the courts,” presumably a reference to the 8 instant petition. (Id. at 15.) Deveraux found the allegation against Petitioner to be true 9 and reimposed the sanctions. (Id. at 16.) 10 At the time Respondent filed his motion to dismiss, Petitioner’s projected release 11 date was June 21, 2016. (Id. at 7.) On June 23, 2016, Petitioner filed a notice of change 12 of address with the Court, listing a non-custodial address. (ECF No. 11.) 13 II. 14 Discussion The petition seeks the reinstatement of good time credits based on defects in 15 Petitioner’s initial, July 19, 2012, disciplinary hearing. (ECF No. 1.) 16 contends that the petition is moot because the defects in the initial disciplinary hearing 17 were remedied when the matter was reheard by DHO Devereaux, a BOP employee.1 18 (ECF No. 9.) Petitioner contends that the petition is not moot because the rehearing was 19 “infected” by the conduct of MTC employees and there is insufficient evidence to support 20 the decision by DHO Devereaux. Respondent 21 A. Legal Standard 22 A case becomes moot when it no longer satisfies the case-or-controversy 23 1 24 25 26 27 28 The Court notes that it appears Petitioner was released from prison subsequent to briefing on Respondent’s motion. (ECF No. 11.) This may be an additional ground for concluding the Petition is moot. See, e.g., Kittel v. Thomas, 620 F.3d 949 (9th Cir.2010) (dismissing as moot a petition challenging the denial of early release where there was no live, justiciable question on which the parties disagreed); Pacheco-Lozano v. Benov, No. 1:13-CV-00526-AWI, 2014 WL 28805, at *3 (E.D. Cal. Jan. 2, 2014) (dismissing as moot challenge to disciplinary proceeding by Taft employee on the ground Petitioner had been released); but see Mujahid v. Daniels, 413 F.3d 991, 995 (9th Cir. 2005) (challenge to calculation of good time credits not moot where petitioner was on supervised release). Because the parties have not addressed this issue and the Court is without information regarding the terms of Petitioner’s release from prison or his current custodial status, his release is not relied on herein as a basis for dismissal. 3 1 requirement of Article III, Section 2, of the Constitution. Spencer v. Kemna, 523 U.S. 1, 7 2 (1998). This requirement demands that the parties continue to have a personal stake in 3 the outcome of a federal lawsuit through all stages of the judicial proceeding. Id. “This 4 means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened 5 with, an actual injury traceable to the defendant and likely to be redressed by a favorable 6 judicial decision.’” Id. (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 7 (1990)). A habeas petition is moot when the petitioner's claim for relief cannot be 8 redressed by issuance of a writ of habeas corpus by the court. See id. Mootness is 9 jurisdictional. See Cole v. Oroville Union High School District, 228 F.3d 1092, 1098. (9th 10 Cir. 2000). When, because of intervening events, a court cannot give any effectual relief 11 in favor of the petitioner, the proceeding should be dismissed as moot. Calderon v. 12 Moore, 518 U.S. 149, 150 (1996). 13 B. Challenge to July 19, 2012 Hearing 14 The claims asserted in the petition are no longer in controversy. In the present 15 case, it appears that the only relief Petitioner sought in his petition was invalidation of the 16 findings and sanctions resulting from his July 19, 2012 disciplinary hearing on the 17 ground that the hearing officer was unqualified under the applicable regulations. 18 However, the charges were reheard by an officer who had the very qualifications that 19 Petitioner alleged were required. DHO Devereaux reheard the charge, considered 20 statements by Petitioner and witnesses, weighed the evidence, rendered independent 21 findings and, based thereon, imposed sanctions on Petitioner. Thus, the original findings 22 and sanctions that constituted the basis for Petitioner's challenges in the petition have 23 now been superseded by the findings and sanctions of a BOP DHO. 24 The procedural error in the July 19, 2012 hearing was remedied. The rehearing of 25 the disciplinary charge by a qualified DHO has effectuated the relief sought by Petitioner. 26 Therefore, it is no longer possible for this Court to issue a decision redressing the injury 27 that he alleges he suffered as a result of the July 19, 2012 disciplinary hearing. 28 4 1 Furthermore, to the extent Petitioner seeks to challenge the results of the April 19, 2 2016 hearing on due process grounds, he must first exhaust his available administrative 3 remedies and then file a new habeas petition. See Huang v. Ashcroft, 390 F.3d 1118, 4 1123 (9th Cir. 2004) (holding that exhaustion is required under 28 U.S.C. § 2241); 5 Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir.1986) (same); Rivas v. Benov, No. 1:14- 6 CV-01109-SAB-HC, 2015 WL 367473, at *2 (E.D. Cal. Jan. 27, 2015) (declining to 7 address issues arising from rehearing where only claims based on original hearing were 8 exhausted); see also 28 C.F .R. §§ 542.10–542.19 (setting forth the BOP's 9 administrative procedures). 10 C. Challenges to Other Regulatory Violations 11 Although not alleged in the petition, Petitioner now argues that the controversy is 12 not moot because both hearings were “infected” by the involvement of MTC employees 13 in earlier stages of the disciplinary process, in violation of 28 C.F.R. § 541.5, which 14 requires “staff” to witness or suspect a violation and issue an incident report, 28 C.F.R. 15 § 541.5(a); and requires a “Bureau staff member” to investigate the incident report, 28 16 C.F.R. § 541.5(b). (ECF Nos. 8, 10.) Here, it appears that MTC employees issued and 17 investigated the incident report. 18 Because Petitioner was accused of misconduct that could result in the loss of 19 good time credit, he was entitled to the following minimal procedural protections in the 20 conduct of his disciplinary proceedings: (1) the right to appear before an impartial 21 decision-making body; (2) twenty-four hour advance written notice of the disciplinary 22 charges; (3) an opportunity to call witnesses and present documentary evidence in his 23 defense when it is consistent with institutional safety and correctional goals; (4) 24 assistance from an inmate representative if the charged inmate is illiterate or complex 25 issues are involved; and (5) a written decision by the fact finder of the evidence relied 26 upon and the rationale behind the disciplinary action. Wolff v, McDonnell, 418 U.S. 539, 27 563-67 (1974). The Supreme Court has held that the standard of review with regard to 28 5 1 the sufficiency of the evidence in such proceedings is whether there is “any evidence in 2 the record that could support the conclusion reached by the disciplinary board.” 3 Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); see also Griffin v. Spratt, 969 F.2d 4 16, 19 (3d Cir. 1992). If there is “some evidence” to support the decision of the hearing 5 officer, the court must reject any evidentiary challenges by the plaintiff. Hill, 472 U.S. at 6 457. 7 Petitioner does not contend that any of the Wolff procedures were lacking.2 8 Rather, he alleges that prison regulations were not followed. Generally a failure to meet 9 a prison guideline regarding a disciplinary hearing would not alone constitute a denial of 10 due process. See Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989), overruled on 11 other grounds by Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016). In the absence of 12 controlling authority, the Court notes that several courts have concluded that to establish 13 a denial of due process of law, prejudice is generally required. See Brecht v. 14 Abrahamson, 507 U.S. 619, 637 (1993) (proceeding pursuant to 28 U.S.C. § 2254); see 15 also Tien v. Sisto, Civ. No. 2:07 cv–02436–VAP (HC), 2010 U.S. Dist. LEXIS 39749, 16 2010 WL 1236308, at *4 (E.D. Cal. Mar. 26, 2010) (recognizing that, while neither the 17 United States Supreme Court nor the Ninth Circuit Court of Appeals has spoken on the 18 issue, numerous federal Courts of Appeals, as well as courts in this district, have held 19 that a prisoner must show prejudice to state a habeas claim based on an alleged due 20 process violation in a disciplinary proceeding, and citing Pilgrim v. Luther, 571 F.3d 201, 21 206 (2d Cir. 2009); Howard v. United States Bureau of Prisons, 487 F.3d 808, 813 (10th 22 Cir. 2007); Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 23 48, 53 (3d Cir.1992); Poon v. Carey, No. Civ. S-05-0801 JAM EFB P, 2008 U.S. Dist. 24 LEXIS 105665, 2008 WL 5381964, *5 (E.D. Cal. Dec. 22, 2008); and Gonzalez v. Clark, 25 No. 1:07-cv--0220 AWI JMD HC, 2008 U.S. Dist. LEXIS 82011, 2008 WL 4601495, at *4 26 27 28 2 He does contend that the evidence in the second hearing was insufficient. However, even if this issue was properly before the Court in this petition, the record demonstrates that there was “some evidence” to support the decision, in the form of the reporting officer’s statement. 6 1 (E.D. Cal. Oct. 15, 2008)); see also Smith v. United States Parole Commission, 875 F.2d 2 1361, 1368-69 (9th Cir. 1989) (holding in a § 2241 proceeding that a prisoner who 3 challenged the government’s delayed compliance with a procedural regulation that 4 required counsel to be appointed before a record review in parole revocation 5 proceedings was required to demonstrate prejudice to be entitled to habeas relief); 6 Standlee v. Rhay, 557 F.2d 1303, 1307-08 (9th Cir. 1977) (stating that burden is on a 7 parolee to demonstrate that failure to permit a witness’s live testimony at a revocation 8 hearing was so prejudicial as to violate due process). 9 The Court concludes that Petitioner was not prejudiced by any regulatory 10 violations preceding the disciplinary hearing. The incident report written by an MTC 11 employee apparently was the only evidence presented against Plaintiff. (ECF No. 9-1 at 12 15.) That report contained a statement by the reporting officer describing her observation 13 of Plaintiff and the event at issue in the disciplinary charge. However, nothing before the 14 Court suggests that the officer’s statement would have been different had it been 15 memorialized by a BOP employee. Notably, “Section 541.5 does not require BOP staff to 16 witness the prohibited act.” Arellano v. Benov, No. 1:13-CV-00558-AWI-MJS, 2014 WL 17 1271530, at *10 (E.D. Cal. Mar. 27, 2014). 18 Furthermore, documentation attached to the motion to dismiss shows that the 19 BOP DHO considered not only the incident report and investigation, but also Petitioner's 20 statement and the testimony of Petitioner’s witness. (ECF No. 9-1 at 15-16.) The DHO 21 made detailed findings regarding the credibility of Petitioner’s account and the reasons 22 for the DHO’s conclusions. These facts undercut Petitioner’s general allegation that he 23 suffered a taint from the participation of non-BOP employees in the incident report and 24 investigation. From these circumstances, the Court concludes that Petitioner has not 25 suffered any prejudice from participation of non-BOP staff in the earlier stages of the 26 disciplinary process. 27 28 7 1 D. 2 In summary, the claims in the petition before the Court are no longer subject to 3 redress by the Court. Further, the factual accuracy of the findings on rehearing are not 4 seriously disputed, the record establishes that Petitioner received procedural due 5 process of law, and there is no indication that Petitioner suffered any legally cognizable 6 prejudice. Conclusion 7 Although Petitioner now alleges that other details of the early stages of the 8 prison's disciplinary program were not conducted consistently with applicable 9 regulations, the foregoing analysis leads the Court to conclude that any such alleged 10 deficiencies did not bear on the legality or duration of Petitioner's confinement. As such, 11 they do not fall within the core of habeas corpus jurisdiction. 12 III. Conclusion and Recommendation 13 Because Respondent has not submitted a consent to or declination of Magistrate 14 Judge jurisdiction, the Clerk of Court is HEREBY DIRECTED to assign a District Judge 15 to this matter. 16 Furthermore, based on the foregoing, it is HEREBY RECOMMENDED that: 17 1. Petitioner’s request for injunctive relief (ECF No. 8) be DENIED; 18 2. The motion to dismiss (ECF No. 9) be GRANTED; and 19 3. The petition be dismissed at moot. 20 The findings and recommendations are submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 22 thirty (30) days after being served with the findings and recommendations, any party 23 may file written objections with the Court and serve a copy on all parties. Such a 24 document should be captioned “Objections to Magistrate Judge’s Findings and 25 Recommendations.” Any reply to the objections shall be served and filed within fourteen 26 (14) days after service of the objections. The parties are advised that failure to file 27 objections within the specified time may result in the waiver of rights on appeal. 28 8 1 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 2 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: May 11, 2017 /s/ 6 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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