Lay v. Ives

Filing 19

FINDINGS and RECOMMENDATIONS, recommending that 1 Petition be denied, signed by Magistrate Judge Charlene H. Sorrentino on 2/3/2012. These F/Rs are REFERRED to District Judge William B. Shubb. Within 21 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CURTIS JAMES LAY, 11 Petitioner, 12 No. CIV S-10-1642 WBS CHS vs. 13 RICHARD IVES, Warden, 14 Respondent. 15 FINDINGS AND RECOMMENDATIONS 16 / 17 I. INTRODUCTION 18 Curtis James Lay, a federal prisoner in custody of the Bureau of Prisons (“BOP”), 19 proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Lay 20 challenges the outcome of a 2009 prison disciplinary proceeding for which he lost 41 days Good 21 Conduct Time. 22 II. FACTUAL AND PROCEDURAL BACKGROUND 23 On February 13, 2009, while incarcerated at the Federal Correctional Institution in 24 Petersburg, Virginia, Lay was served with an incident report charging him with Assaulting Any 25 Person. The Description of the Incident provided: 26 ///// 1 1 On January 22, 2009, at 10:30 am, inmate Lay, Curtis, #18851-016 was involved in a serious Assault with inmate Roper, Sammie, #70123-054 in Unit D-North, Cell # 46. A review of the CCTV revealed that on January 22, 2009, at 10:00 a.m., Inmate Lay, Curtis approached inmate Roper in the common area of Unit DNorth and they walked to cell 46. The CCTV revealed minutes later inmate Williams entered cell # 46. Seconds after the cell door is seen swinging open and you can see a flash of bodies. Inmate Roper states he was held from behind by an unknown inmate while inmate Lay, Curtis # 18851-016 assaulted him. Inmate Roper states, shortly thereafter, the unknown inmate placed him in a head lock while inmate Lay struck him in the face with a hard object causing him to become unconscious. The CCTV confirmed, inmate Williams, Lay and Roper was the only inmates [sic] in the cell at the time of the Assault. When the Officer arrived she observed inmate Lay and Williams standing over inmate Roper as inmate Roper laid unresponsive on the floor. During the assault inmate Williams sustained an abrasion to his left middle finger. Inmate Roper was medically assessed for multiple lacerations to his upper and lower lip, fractured nose, hematoma to his forehead, exophthalmos to his left eye and lacerations to both eye braw [sic]. Inmate Roper had to be rushed to the local hospital for further medical treatments. Inmate Lay was medically assessed for a 2 cm. laceration over the right eye, a 1.5 cm. laceration over the left eye and a superficial laceration over the left upper chest. 2 3 4 5 6 7 8 9 10 11 12 13 14 (Attachment One to the declaration of Curtis Hise, Incident Report by K. Vaughan, SIS 15 Lieutenant, dated and served 02/13/09.) 16 On February 19, 2009, Lay appeared before a Unit Discipline Committee and 17 denied the charges. The matter was forwarded to a Discipline Hearing Officer (“DHO”) for 18 further action. 19 On March 6, 2009, Lay appeared before the DHO. He requested and was 20 provided with a staff representative, Officer Holmes. Due to a discrepancy in the Incident Report 21 and supporting documentation as to the time of the incident, the hearing was postponed to March 22 23, 2009 for clarification of the issue. On March 23, 2009, Lay waived his appearance before the 23 DHO but provided a written statement that was delivered by Officer Holmes. Lay also requested 24 that inmate Roper (the alleged victim) be called as a witness. The DHO questioned inmate 25 Roper, who stated he did not remember anything and did not recall making any statements to 26 investigating staff. 2 1 Considering all the available information, including the documentary evidence, 2 investigative reports, Lay’s written statement and questions, the DHO found that Lay committed 3 the prohibited act of Assault with Serious Injury. A penalty of 41 days loss of Good Conduct 4 Time, 45 days disciplinary segregation, and loss of social visits and commissary privileges for 6 5 months was assessed. Lay was served with a copy of the document notifying him of the outcome 6 of the proceeding. He proceeded unsuccessfully through the BOP’s four-level review process. 7 See 28 C.F.R. § 542.10 et. seq. The parties agree that he properly exhausted administrative 8 remedies before filing this suit. 9 10 11 12 13 14 15 16 17 18 III. GROUNDS FOR RELIEF In five separate grounds for relief, Lay claims, verbatim: Ground One: Denial of Due Process of Law- Loss of (41) Days Good Conduct Time Credits. I was denied due process of law before, during, and after the prison disciplinary hearing by Captain Evans, Lieutenant Vaughan, Officer Holmes, and the Hearing Officer Mr. Hise. The incident Report was based on falsified, uncorroborated and contradicted information made in retaliation against me for insisting that I was innocent; invoking my right to remain silent; and for accusing Lieutenant Vaughan of falsifying information. Ground Two: Due to fear of retaliation my staff representative Officer E. Holmes refused to fulfill his duties and responsibilities of assisting me in presenting the best possible defense. He abandoned me and thereby violated my right to due process of law. When Officer E. Holmes discovered that I was accusing Lieutenant Vaughan of falsifying (lying) the information in the Incident Report That the alleged inmate victim (Roper) never made any statement to Vaughan, Officer E. Holmes refused to fulfill continue [sic] to help me to prepare the best possible defense. He abandoned me. 19 20 21 22 23 Ground Three: Staff representative Officer E. Holmes wilfully disregarded his duties and responsibilities as staff representative by failing to review the surveillance video (discovery material) thereby violating petitioner’s rights to due process of law under the Fifth Amendment of the United States Constitution. Ground Four: Staff representative Officer E. Holmes violated his duties and as staff representative when he failed to obtain and consult, and review with the petitioner the investigation report for the incident thereby violating petitioner’s rights to due process of law under the Fifth Amendment. 24 25 26 Ground Five: Staff representative Officer E. Holmes failed to ask petitioner’s written questions of witnesses at the disciplinary hearing including the alleged inmate victim Sammie Roper thereby violating petitioner’s rights to due process of law under the Fifth Amendment of the United States Constitution. 3 1 For purposes of this opinion, Lay’s grounds for relief will be addressed in a single 2 discussion on the process due under the United States Constitution in a prison disciplinary 3 hearing when the loss of Good Conduct Time is among the penalties assessed. 4 5 IV. JURISDICTION AND APPLICABLE LAW Relief by way of a writ of habeas corpus extends to a prisoner in custody under 6 the authority of the United States who shows that his custody violates the Constitution, laws, or 7 treaties of the United States. 28 U.S.C. § 2241(c)(3). “[A] prisoner may seek a writ of habeas 8 corpus under section 2241 for ‘expungement of a disciplinary finding from his record if 9 expungement is likely to accelerate the prisoner’s eligibility for parole.’” Ramirez v. Galaza, 334 10 11 12 F.3d 850, 858 (9th Cir. 2003) (quoting Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989). V. DISCUSSION Inmates subject to prison disciplinary action are not guaranteed the full panoply of 13 rights afforded to criminal defendants under the Due Process Clause. Where a disciplinary 14 proceeding results in the loss of a liberty interest, however, such as the loss of good conduct time 15 credits, certain procedural protections must be afforded. Wolff v. McDonnell, 418 U.S. 539, 556- 16 58 (1974); Superintendent v. Hill, 472 U.S. 445, 455-56 (1985). In such situations, due process 17 requires: “(1) advance written notice of the disciplinary charges; (2) an opportunity, when 18 consistent with institutional safety and correctional goals, to call witnesses and present 19 documentary evidence in his defense; and (3) a written statement by the factfinder of the 20 evidence relied on and the reasons for the disciplinary action.” Hill, 445 U.S. at 454 (citing 21 Wolff, 418 U.S. at 563-67). If the charges are complex and it is unlikely the inmate will be able 22 to collect and present relevant evidence, he may additionally be entitled to the assistance of 23 another inmate or, if that is prohibited, a staff member. Wolff, 418 U.S. at 563. 24 Due process also requires that the disposition of a prison disciplinary hearing be 25 supported by “some evidence” in the record. Hill, 472 U.S. at 455. This standard does not 26 require an examination of the entire record, independent assessment of the credibility of 4 1 witnesses, or weighing of the evidence.; rather, the only question is whether “any evidence in the 2 record... could support the conclusion reached by the disciplinary board.” Id. at 455-56. 3 Although this standard is “minimally stringent,” the evidence supporting the disciplinary decision 4 must bear some indicia of reliability. Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). 5 Review of the record reveals that Lay was afforded all the due process elements 6 required by Wolff v. McDonnell. Written notice of the charges was provided on February 13, 7 2009, substantially in advance of his initial appearance before the DHO on March 6, 2009. See 8 Wolff, 418 U.S. at 564 (inmate must be given advance notice of at least 24 hours before hearing). 9 Lay appeared before the DHO at the initial hearing and waived his appearance at the subsequent 10 hearing. He had the opportunity to present witnesses and documentary evidence: his written 11 statement was read and considered by the DHO and his requested witness was called and 12 questioned. (See Declaration of Curtis Hise.) The DHO prepared a written statement of the 13 evidence relied on and the reasons for the disciplinary action. (See Attachment Two to the 14 declaration of Curtis Hise.) Lay does not dispute that he was served with a copy of this 15 document. 16 Moreover, there was “some evidence” in the record, as set forth in both the 17 incident report and the written summary of reasons for the disciplinary action, to support the 18 finding of guilt. The evidence included, but was not limited to, the CCTV footage showing only 19 three inmates walking into the cell, a staff member’s report that he found Lay and one other 20 inmate standing over the unresponsive victim inmate, and the victim’s initial statement 21 implicating Lay and another unknown inmate in the attack. Despite the fact that Lay denied the 22 assault and the victim inmate claimed not to remember anything when interviewed by the DHO, 23 the record contains ample evidence supporting the DHO’s finding of guilt. See Hill, 472 U.S. at 24 457 (where “the record is not so devoid of evidence that the findings of the disciplinary board 25 were without support or otherwise arbitrary,” those findings must be upheld); see also Bostric v. 26 Carlson, 884 F.2d 1267, 1269-70 (9th Cir. 1989) (eyewitness account by reporting officer and 5 1 statement by inmate witness that he heard the disciplined inmate challenge another inmate to a 2 fight were sufficient to support guilt). 3 As to Lay’s complaints about the assistance he received from Officer Holmes, his 4 staff representative, Supreme Court precedent clearly establishes only that such assistance is 5 required for illiterate inmates or in “complex” cases. See Wolff, 418 U.S. at 563. Lay does not 6 allege that he is illiterate and this incident did not involve a complex matter. In any event, 7 because there is no right to assistance of counsel in a prison disciplinary proceeding, there is no 8 such claim as ineffective assistance of counsel by an assisting staff member in that context. See 9 Bostic, 884 F.2d at 1274. 10 Lay was afforded all the process due under the United States Constitution in 11 connection with the disciplinary proceeding in question. He therefore fails to meet his burden of 12 showing that he is in custody in violation of the Constitution or laws of the United States and no 13 relief is available. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002). 14 15 VI. CONCLUSION For the foregoing reasons, IT IS HEREBY RECOMMENDED that the petition be 16 denied. These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 21 within the specified time waives the right to appeal the District Court’s order. Martinez v. Ylst, 22 951 F.2d 1153 (9th Cir. 1991). Any reply to the objections shall be filed and served within seven 23 days after service of the objections. 24 DATED: February 3, 2012 25 26 CHARLENE H. SORRENTINO UNITED STATES MAGISTRATE JUDGE 6

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