Dickerson v. Thomas
Filing
27
Opinion And Order. Petitioner's petition for writ of habeas corpus 1 is DENIED, and this proceeding is DISMISSED, with prejudice. Signed on 8/22/11 by Judge Malcolm F. Marsh. (cib)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ELDEE DICKERSON,
Petitioner,
Case No. 11-cv-744-MA
OPINION AND ORDER
v.
J.E. THOMAS, Warden FCI
Sheridan,
Respondent.
ANTHONY D. BORNSTEIN
Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
DWIGHT HOLTON
United States Attorney
District of Oregon
RONALD K. SILVER
Assistant United States Attorney
United States Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
MARSH, Judge
Petitioner Eldee Dickerson, an inmate at FCI Sheridan, brings
this petition for writ of habeas corpus pursuant to 28 U.S.C. §
1 - OPINION AND ORDER
2241. Petitioner alleges that he was denied due process when after
failing a drug test, the Bureau of Prisons (BOP) transferred him
from a residential reentry center (RRC) to FCI Sheridan and
sanctioned him 41 days lost good conduct time (GCT) credits without
an adequate hearing. For the reasons set forth below, the petition
is DENIED.
BACKGROUND
Petitioner is serving an 87-month sentence for Distribution of
a Controlled Substance.
Petitioner’s current projected release
date is March 8, 2012, via GCT.
On February 10, 2011, while petitioner was designated to the
Spokane Residential Reentry Center, the RRC received a report from
Redwood Toxicology Laboratory indicating that a urine specimen
submitted by petitioner on February 1, 2011 was positive for
synthetic cannabinoids, commonly known as “Spice.” On February 11,
2011, petitioner was removed from the RRC by the United States
Marshal’s Service and apparently taken to the Spokane County Jail.
On February 15, 2011, the RRC generated an incident report,
indicating a Code 112 violation for use of drugs, in violation of
28 C.F.R. § 541.13.
Petitioner was given a copy of the incident
report on February 15, 2011.
On February 16, 2011, petitioner was
given an inmate rights form describing his rights at the Center
Discipline Committee (CDC) hearing, which petitioner acknowledged
receiving on that date.
2 - OPINION AND ORDER
The inmate rights form includes a
provision indicating that the inmate has 20 days to pursue an
Administrative Remedy.
(Declaration of Frankie Moyers (Moyers
Dec.) (#19) Att. 2, p. 1.)
On February 17, 2011, the CDC conducted a hearing on the
incident report at the Spokane County Jail.
4.)
During
the
CDC
hearing,
(Moyers Dec. (#19) ¶
petitioner
was
afforded
the
opportunity to call witnesses and present documentary evidence, but
declined
to
do
representation.
so.
Petitioner
waived
his
right
(Moyers Dec. (#19) Att. 3, p. 1).
to
staff
During the
hearing, petitioner admitted to smoking Spice, but asserted that he
was unaware at the time that the cigarette he smoked contained
Spice.
Based on the toxicology report, the incident report, and
petitioner’s admission, the CDC found petitioner guilty of the Code
112 infraction.
The CDC referred the incident report to the
Discipline Hearing Officer (DHO) for sanctions.
Petitioner was
provided with a written statement of the evidence relied upon and
the reasons for the disciplinary decision. (Moyers Dec. (#19) ¶ 4.)
DHO David Perez reviewed the disciplinary records relating to
petitioner’s incident report.
Based on those records, the DHO
imposed a sanction of 41 days lost GCT and a disciplinary transfer.
On March 17, 2011, petitioner was returned to FCI Sheridan.
(Declaration of David Perez (Perez Dec.) (#18) p. 2.)
////
////
3 - OPINION AND ORDER
DISCUSSION
In this proceeding, petitioner asserts that the DHO should not
have imposed sanctions without holding an additional independent
hearing.
According to petitioner, the DHO’s paper review of the
CDC proceeding is invalid under the Due Process Clause of the Fifth
Amendment.1
Petitioner seeks to have the sanctions nullified.
Respondent contends that petitioner received all the process
he was due at the CDC hearing and that the sanctions imposed are in
accordance with BOP policy and applicable regulations.
Moreover,
respondent contends that the CDC hearing was based on “some
evidence” to find petitioner guilty of the Code 112 violation, and
therefore, habeas relief must be denied.
I.
Respondent is correct.
Petitioner’s Failure to Exhaust is Excused.
In
general,
federal
prisoners
must
exhaust
their
administrative remedies prior to filing a habeas corpus petition
under 28 U.S.C. § 2241.
Martinez v. Roberts, 804 F.2d 570, 571
(9th Cir. 1986)(per curiam).
1
Although the exhaustion requirement
In his pro se petition, petitioner alleges that a Code 112
violation was not the correct charge for possession of Spice.
With the benefit of counsel, petitioner appears to have abandoned
this argument. In any event, the argument is meritless.
Petitioner was charged with use of a drug, based on his failed
urinalysis, not possession. Furthermore, petitioner signed an
acknowledgment on January 4, 2011, which specifically informed
Spokane RRC residents of the Zero Tolerance Policy for the use or
possession of Spice and that violating the policy could result in
termination from the RRC program and lost GCT credits. (Moyers
Dec. (#19) Att. 4, p.1.)
4 - OPINION AND ORDER
is not jurisdictional, this court may dismiss a habeas petition for
failure to exhaust administrative remedies. Id. Exhaustion may be
excused if the administrative remedies are inadequate, futile, or
where
pursuit
of
irreparable injury.
the
administrative
remedies
would
cause
See Laing v. Ashcroft, 370 F.3d 994, 1000-01
(9th Cir. 2004).
Petitioner has not exhausted his administrative remedies.
(Declaration of Cecilia Burks (#17) ¶ 5.) While the court has some
concern
that
petitioner
did
not
diligently
pursue
his
administrative remedies, it is obvious that requiring exhaustion at
this juncture would be futile.
Accordingly, petitioner’s failure
to exhaust is excused in the circumstances of this case.
II.
Petitioner Was Not Denied Due Process.
In order to obtain relief pursuant to 28 U.S.C. § 2241,
petitioner must establish that he is “in custody in violation of
the Constitution or laws or treaties of the United States.”
U.S.C. § 2241(b)(3).
28
Petitioner asserts that the hearing he
received was inadequate under the Due Process Clause of the Fifth
Amendment to the Constitution.
It is well established that an inmate must be afforded
procedural protections before he can be deprived of a protected
liberty interest, which includes good time credits (GTC). Wolff v.
McDonnell, 418 U.S. 539, 556-57 (1974); Superintendent v. Hill, 472
U.S. 445, 454 (1984). However, “[p]rison disciplinary hearings are
5 - OPINION AND ORDER
not part of a criminal prosecution, and the full panoply of rights
due a defendant in such proceedings does not apply.”
Wolff, 418
U.S. at 556.
Due process in prison disciplinary hearings requires: (1) the
right to appear before an impartial decision-maker;
advance
written
opportunity,
notice
when
of
the
consistent
disciplinary
with
(2) 24-hour
charges;
institutional
(3)
safety
an
and
correctional goals, to call witnesses and present documentary
evidence
in
his
defense;
(4)
assistance
from
an
inmate
representative if the charged inmate is illiterate or complex
issues are involved; and (5) a written statement by the factfinder
of the evidence relied on and the reasons for the disciplinary
action.
Wolff, 418 U.S. at 563-77; Hill, 472 U.S. at 454; see also
Argento v. Thomas, 2010 WL 3661998, *4 (D. Or. Sept. 17, 2010).
The substantive requirements of due process are satisfied where
there is “some evidence” to support the decision by the prison
disciplinary officials.
Hill, 472 U.S. at 454.
The record clearly demonstrates that petitioner received the
procedural protections required by Wolff.
the process he was due at the CDC hearing:
Petitioner received all
the decision maker was
impartial; he received more than 24 hours notice of the hearing; he
was given the opportunity to call witnesses and present documentary
evidence–which he declined to do; he declined representation; and
6 - OPINION AND ORDER
he received a written statement of the evidence relied upon and the
reasons for the sanctions. (Moyers Dec. (#19) ¶ 4.)
Petitioner does not appear to challenge the sufficiency of the
evidence
to
support
the
CDC’s
finding.
To
the
extent
that
petitioner’s petition could be construed to raise such an argument,
I conclude that the CDC’s decision is supported by “some evidence”
in the record.
Hill, 473 U.S. at 455-56.
The CDC expressly based
its decision on the toxicology report indicating the presence of
synthetic cannabinoids in the specimen provided by plaintiff; the
investigative report by Robert C. Mostek; petitioner’s admission to
the zero tolerance policy for Spice and admission that he violated
that policy; and that petitioner failed to advise staff or his case
manager about the Spice in the cigarette.
(Moyers Dec. (#19)
Att.1, p. 2.)
In this proceeding, petitioner does not argue that the CDC
hearing failed to comport with the required procedural due process
protections mandated by Wolff.
Instead, petitioner asserts that
the Due Process Clause requires that he be given a second hearing
before the DHO prior to the imposition of sanctions.
Petitioner
argues that had he been given a second, independent hearing he
could have emphasized “important mitigating information.”
(Brief
in Support of Petition (#26) p. 4.) Petitioner contends that he did
not have “‘any premeditated thoughts about going into the . . .
restroom to smoke on the day of the incident.’”
7 - OPINION AND ORDER
(Id. quoting
Moyers Dec. (#19), Att. 1, p. 3.)
Petitioner submits that due
process requires that he have the opportunity to argue directly to
the DHO for a lesser penalty.
I disagree.
Petitioner’s argument is foreclosed by Stevens v. Thomas, Case
No. 11-cv-790-MA, 2011 WL 3563131 (Aug. 10, 2011). In Stevens, the
petitioner lost 41 days GCT and was returned to prison following a
failed drug test while designated to an RRC.
In that case, the
petitioner received a CDC hearing, with a review by a DHO who
imposed more severe sanctions than those recommended by the CDC.
In Stevens, I rejected the petitioner’s argument that due process
required a second, full disciplinary hearing prior to imposing the
more severe sanctions:
Because petitioner was housed in an RRC at the time
of the incident, due process is afforded at a CDC
hearing, not a DHO hearing. Mazzanti v. Bogan, 866 F.
Supp. 1029, 1033 (E.D. Mich. 1994); accord Harris v.
Norwood, 2008 WL 5377647, *1 (C.D. Cal. Dec. 16, 2008)(no
due process violation where petitioner at RRC given CDC
hearing, with review by DHO prior to sanctions of GCT
credits loss and disciplinary transfer). See Community
Corrections Manual, BOP Program Statement 7300.09, p. 1819, available at www.bop.gov/DataSource/execute/
dsPolicyLoc (disciplinary procedures used by CDCs must
adhere to Wolff). As one court aptly stated, “Wolff does
not mandate that [p]etitioner be granted two hearings[,]
one before the CDC and one before the DHO.”
Rini v.
Nash, 2005 WL 2033689, *3 (D.N.J. Aug. 22, 2005).
Stevens, 2011 WL 3563131, at *4.
As
petitioner
acknowledges,
he
presented
the
mitigating
information to the CDC, and the fact that petitioner was remorseful
and cooperative was included in the CDC investigative report, which
8 - OPINION AND ORDER
was reviewed by the DHO.
Petitioner offers no support for his
contention that due process requires petitioner to receive a second
opportunity to present the same mitigating evidence.
As I held in
Stevens, the additional protections advocated by petitioner are
simply not required. Accordingly, because petitioner’s CDC hearing
met the requirements set forth in Wolff, petitioner is not entitled
to a second hearing before the DHO.
Therefore, petitioner has
failed to demonstrate that he is in custody in violation of the
Constitution or laws of the United States, and habeas relief is not
warranted.
28 U.S.C. § 2241(b)(3).
CONCLUSION
Based on the foregoing, petitioner's petition for writ of
habeas corpus (#1) is DENIED, and this proceeding is DISMISSED,
with prejudice.
IT IS SO ORDERED.
DATED this _22_ day of AUGUST, 2011.
__/s/ Malcolm F. Marsh______
Malcolm F. Marsh
United States District Judge
9 - OPINION AND ORDER
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