Rivero v. Roal

Filing 18

ORDER re 11 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Jesus Rivero. The Court remands this matter to Magistrate Judge Frazier to amend the findings of fact of the Report and Recommendation if appropriate. See Order for details. Signed by Chief Judge David R. Herndon on 11/26/12. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JESUS RIVERO,
Plaintiff,
v.
WENDY J. ROAL, WARDEN,
Defendant.

No. 12-0132-DRH
ORDER

HERNDON, Chief Judge:
Pending before the Court is a Report and Recommendation (‘the Report”)
submitted by Magistrate Judge Philip M. Frazier (Doc. 11). Based on the following,
the Court remands this matter to Judge Frazier for further findings.
On October 2, 2012, Judge Frazier entered a Report recommending that
Rivero’s habeas corpus petition pursuant to 28 U.S.C. § 2241 be granted in part and
denied in part (Doc. 12). Specifically, the Report recommended that the Court grant
relief on Rivero’s claim that he was deprived of a liberty interest in violation of the
Due Process Clause when sanctions were imposed without some evidence that Rivero
possessed a weapon behind a wall outlet and recommended that the Court deny relief
on his other claims. The Report found that “none of the evidence presented to the
DHO suggests that the weapon was discovered in a space assigned to Rivero.”
Further, the Report found that “[e]ven assuming that the DHO was justified in
drawing an inference that Rivero was assigned to or otherwise responsible for cubicle
3BU-46l, the surrounding circumstances prohibit any reasonable finding of the

prohibited act of possession.” (Doc. 11, p. 4). The Report was sent to the parties
with a notice informing them of their right to appeal by way of filing “objections” by
October 19, 2012.
On October 12, 2012, respondent filed an objection to the Report stating that
the Report contains a mistake of fact as to the cubical 46L, where the weapon was
found (Doc. 12). Specifically, respondent contends that the correct facts are that
petitioner was assigned to cubical 46L with one other inmate and inside that cubical,
behind a wall outlet, Officer White found a weapon and that petitioner lived in that
cubical, 46L, for eleven months and at the time the weapon was found he lived there
with one other inmate. On November 16, 2012, petitioner filed a response to the
objections stating: “ Respondent states: ‘A weapon was located within the common
are the TWO inmates shared.’ (Emp [sic] mine). Rivero has always stated this. This
is part of his complaint, that the OTHER inmate was NOT charged.” (Doc. 16, p. 1).
Petitioner further contends that he has proven that Officer’s White statement could
have not happened that way.
Thus, the Court REMANDS the Report to Magistrate Judge Frazier to
determine whether the facts upon which the Report was based on are in error and,
if so, to determine if the Report needs to be amended.
IT IS SO ORDERED.
Signed this 26th day of November, 2012.

Digitally signed by
David R. Herndon
Date: 2012.11.26
15:39:25 -06'00'

Chief Judge
United States District Court
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