Stevens v. Thomas
Filing
22
OPINION AND ORDER. Petitioner's petition for writ of habeas corpus 1 is DENIED, and this proceeding is DISMISSED, with prejudice. IT IS SO ORDERED. Signed on 8/10/2011 by Judge Malcolm F. Marsh. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JOSEPH ALAN STEVENS,
Petitioner,
Case No. 11-cv-790-MA
OPINION AND ORDER
v.
JEFFREY 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 Joseph Alan Stevens, an inmate at the Federal
Detention Center (FDC) at Sheridan, Oregon, brings this petition
1 - OPINION AND ORDER
for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner
alleges that he received an inadequate hearing and was denied due
process when the Bureau of Prisons (BOP) transferred him to a more
secure facility and he lost 41 days of good conduct time (GCT)
credits resulting from a failed drug test while designated to a
residential reentry center (RRC). For the reasons set forth below,
the petition is DENIED.
BACKGROUND
Petitioner
is
serving
a
100-month
term
of
imprisonment
following his plea of guilty to five counts of Bank Robbery in
violation of 18 U.S.C. § 2113(a).
Prior to the events at issue in
this case, petitioner’s projected good time release date was July
14, 2012, via GCT.
Petitioner’s current projected release date is
August 24, 2012.
On
January
21,
2011,
petitioner
was
designated
to
the
Northwest Regional RRC in Portland, Oregon. On April 25, 2011, the
Northwest Regional RRC received a laboratory report from Redwood
Toxicology Laboratory indicating that a urine sample submitted by
petitioner
on
April
15,
2011,
methylenedioxypyrovalerone (MDPV).
tested
positive
for
MDPV is a designer stimulant
marketed in the United States as “bath salts” under names such as
Cloud 9, Ivory Wave, or White Lighting.
(Declaration of David
Perez in Support of Respondent’s Response (Perez Dec.) (#12) p.4.)
2 - OPINION AND ORDER
On April 25, 2011, the RRC staff generated an Incident Report
charging petitioner with a violation of Code 112, use of narcotics,
drugs, or other paraphernalia not prescribed by medical staff.
That same day, RRC staff also generated a Transfer Order for
petitioner’s removal from the RRC.
On April 26, 2011, petitioner
was picked up from the RRC by the United States Marshals’ Service
(USMS), and taken to Multnomah County Jail.
On April 26, 2011, RRC staff provided petitioner with a copy
of the Incident Report, which indicated the Code 112 violation. On
April 28, 2011, petitioner received a Notice of Center Discipline
Committee (CDC) Hearing, advising him that a hearing would be
conducted on April 29, 2011.
CDC
Hearing,
reflecting
Petitioner initialed the Notice of
that
he
waived
his
representation, and the right to call witnesses.
April
28,
2011,
petitioner
signed
an
right
to
staff
Additionally, on
Inmate
Rights
Form,
acknowledging that he had been advised of his rights with regard to
the CDC hearing.
On April 29, 2011, the CDC hearing was conducted at the
Multnomah County Jail.
At the hearing, petitioner admitted to
using the synthetic stimulant, but contended that he did not break
any laws by using illegal narcotics.
p.2.)
The
CDC
concluded
that
(Perez Dec. (#12) Att. 3,
petitioner
had
committed
the
prohibited act as charged, and recommended that the Disciplinary
Hearing Officer (DHO) sanction petitioner with a loss of 27 days of
3 - OPINION AND ORDER
GCT and a transfer to a more secure facility.
Petitioner was
subsequently transferred to FDC Sheridan.
On June 6, 2011, DHO David Perez reviewed the CDC Report and
recommendation.
DHO Perez imposed a sanction of 41 days lost GCT
credits and a disciplinary transfer.
In a letter dated June 30,
2011, petitioner was provided with a copy of the CDC Report, along
with notice that he had 20 days thereafter to file an appeal.
DISCUSSION
In
this
habeas
proceeding,
petitioner
advances
several
arguments challenging the BOP's sanctions of 41 days lost GCT
credits and disciplinary transfer. First, petitioner contends that
he did not receive adequate notice that the synthetic stimulant he
ingested was prohibited.
Second, petitioner argues that his due
process rights were violated when the DHO increased the sanction
from 27 to 41 lost GCT days without holding another hearing.
Third,
petitioner
submits
that
the
greater
sanction
was
not
mandatory, and therefore, this court should direct the BOP to
impose the lesser sanction.
In this proceeding, petitioner seeks
restoration of his GCT credits and a return to the RRC.
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
4 - OPINION AND ORDER
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).
Although the exhaustion requirement
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
the
irreparable injury.
administrative
remedies
would
cause
See Laing v. Ashcroft, 370 F.3d 994, 1000-01
(9th Cir. 2004).
Petitioner has not exhausted his administrative remedies and
asserts that he will suffer irreparable injury if his petition is
not considered. Because it is clear from the record before me that
petitioner would be unable to complete the administrative remedy
process
until
accomplished,
well
his
after
failure
any
to
requested
exhaust
is
relief
excused
could
be
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.”
5 - OPINION AND ORDER
28
U.S.C. § 2241(b)(3). Petitioner asserts that the sanctions imposed
are invalid 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
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
6 - OPINION AND ORDER
there is “some evidence” to support the decision by the prison
disciplinary officials.
Hill, 472 U.S. at 454.
The record demonstrates that in the CDC hearing, petitioner
clearly was afforded all the process he was due under Wolff.
Petitioner received 24 hours advance written notice of the charges
against him and notice of the hearing.
On April 26, 2011,
petitioner received a copy of the incident report, and on April 28,
petitioner received written notice that the CDC hearing would take
place the following day.
Petitioner’s hearing was conducted by an
impartial CDC, and petitioner waived his right to call witnesses
and his right to staff representation.
Petitioner appeared at the
CDC hearing and was afforded the opportunity to persuade the CDC.
Lastly, in a letter dated June 30, 2011, petitioner received a
written statement by the factfinder as to the evidence relief upon
and the reasons for the sanctions imposed.
The letter also
informed petitioner of his right to appeal.
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
MDPV
in
specimen
#956664,
that
specimen
#956664
belonged
to
petitioner, and that petitioner was not prescribed any medication
7 - OPINION AND ORDER
that would give a false positive for MDPV.
report
indicates
stimulant.
that
petitioner
Additionally, the
admitted
to
ingesting
the
(Perez Dec. (#12) Att. 3, p.5.)
In the current proceeding, petitioner asserts that his due
process
rights
constitutionally
substance.
were
violated
adequate
notice
because
that
he
MDPV
did
was
Petitioner’s argument is without merit.
not
a
have
prohibited
The relevant
regulation, 28 C.F.R. § 541.13, Table 3, has provided notice by
listing prohibited offenses. Specifically, a Code 112 violation is
described as the “[u]se of any narcotics, marijuana, drugs, or
related paraphernalia not prescribed for the individual by the
medical staff.”
28 C.F.R. § 541.13, Table 3 (emphasis added).
It
is undisputed that petitioner was not prescribed any drug which
would show a false positive result for MDPV.
(Perez Dec. (#12)
Att. 3, p.4.) Petitioner offers no support for his contention that
he was entitled to more specific advance notice that MDPV was
prohibited by Code 112.
While “bath salts” sound innocuous, the
toxicology report describes MDPV as a designer stimulant, and
petitioner admitted to ingesting it, presumably for its stimulating
effect.1
1
As respondent notes, the State of Oregon added MDPV to its
list of Schedule I Controlled Substances effective April 11,
2011. See Or. Admin. R. 855-080-0021 (defining MDPV in any form,
including salts, as a controlled substance)(available at
www.oregon.gov/Pharmacy/Imports/Rules/April11/855080_4.11.pdf?ga=t.)
8 - OPINION AND ORDER
In his pro se habeas petition, petitioner argues that he was
only given an “interim hearing” prior to losing his GCT credits,
and that due process requires a second hearing before the DHO.
With the benefit of counsel, petitioner asserts in his supporting
memorandum that he was entitled to a second hearing before the DHO
because the DHO increased the sanctions recommended by the CDC.
I
reject both of these arguments.
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. 18-19, available at
www.bop.gov/DataSource/execute/dsPolicyLoc (disciplinary procedures
used by CDCs must adhere to Wolff).
“Wolff
does
not
mandate
that
As one court aptly stated,
[p]etitioner
be
granted
hearings[,] one before the CDC and one before the DHO.”
two
Rini v.
Nash, 2005 WL 2033689, *3 (D.N.J. Aug. 22, 2005).
Petitioner provides no authority for the proposition that due
process requires a second hearing where the first hearing meets the
requirements set forth in Wolff.
Furthermore,
petitioner was
provided with a review of the CDC procedures by DHO Perez, who
9 - OPINION AND ORDER
certified
the
CDC’s
protections were met.
findings,
indicating
that
due
process
I conclude that because the CDC hearing met
the requirements set forth in Wolff, petitioner received all the
process he was due.
Accordingly, petitioner is not entitled to a
second hearing before the DHO prior to the imposition of sanctions.
I am not persuaded by petitioner’s argument that because the
DHO imposed greater sanctions (41 GCT days lost) than those
recommended by the CDC (27 GCT days lost), due process requires a
new hearing.
Although petitioner received a greater sanction than
that recommended by the CDC, the sanction is still within the range
set forth in the BOP policies and regulations.
See Ramos v.
Gilkey, 1997 WL 201566, *4 (N.D. Ill. Apr. 17, 1997)(no due process
violation
where
DHO
increased
inmate’s
sanctions
from
that
recommended by CDC; sanctions still within recommended range and
CDC hearing complied with due process).
Therefore, the additional
procedural protections advocated by petitioner are simply not
required.
Petitioner also submits that because the more severe sanction
(38 days lost GCT credits and three days lost non-vested GCT
credits) was not mandatory, DHO Perez was required to follow the
recommendation of the CDC.
I disagree.
The regulations provide
that for a Code 112 sanction, a DHO may disallow between 50 and 75
percent (27 to 41 days) of good conduct time credit available, and
forfeit 100 percent of non-vested GCT credits. 28 C.F.R. § 541.13,
10 - OPINION AND ORDER
Table 3.
Petitioner does not dispute that 38 days is 75 percent of
his available GCT credits, and that he lost 100 percent of his nonvested GCT credits.
Clearly, the sanction petitioner received
falls within the range of sanctions in the relevant regulation.
Accordingly, because petitioner has failed to demonstrate that he
is in custody in violation of the Constitution or laws of the
United States, habeas relief is not warranted.
28 U.S.C. §
2241(b)(3).
Lastly, I reject petitioner’s assertion that he was entitled
to a hearing prior to being transferred from the RRC to Multnomah
County Jail.
constitutes
Not every change in the conditions of confinement
a
deprivation
of
liberty,
even
if
there
is
a
substantially adverse impact on the prisoner. See Meachum v. Fano,
427 U.S. 215, 224-25 (1976).
protected
liberty
interest
To be sure, a constitutionally
arises
only
if
a
restraint
on
a
prisoner’s freedom imposes an “atypical and significant hardship on
the inmate in relation to the ordinary incident of prison life.”
Sandin v. Conner, 515 U.S. 472, 484-86 (1995).
I find the reasoning in Hatch v. Lappin, 660 F.Supp.2d 104,
111-112 (D.Mass. 2009), instructive. In Hatch, the court concluded
that
an
inmate’s
transfer
from
home
confinement
back
imprisonment was not an atypical and significant hardship.
to
There,
the court noted that Hatch’s participation in the home confinement
program was a privilege and not a right, and was awarded solely at
11 - OPINION AND ORDER
the discretion of the BOP.
Therefore, Hatch was not entitled to
the procedural protections of due process prior to his return to
the
federal
correctional
institution.
Id.
at
112.
Accord
Rodriguez v. Wiley, 2009 WL 2868838, *2-3 (D.Colo. Sept. 3,
2009)(no due process violation when inmate transferred from halfway
house back to general prison population because his placement in
halfway house was not a liberty interest).
Furthermore, this
reasoning comports with the BOP’s broad discretion to transfer
inmates from one correctional facility to another “at any time.”
18 U.S.C. § 3621(b); see also Olim v. Wakinekona, 461 U.S. 238,
244-45 (1983)(inmate lacks any due process liberty interest in his
classification or placement); Ingram v. Thomas, 2011 WL 1791234 (D.
Or. May 10, 2011)(“Petitioner has no Constitutional right to be
placed in a particular institution”).
I conclude that because petitioner does not have a protected
liberty or property interest in an RRC placement, he was not
entitled
to
due
process
procedural
protections
transfer from the RRC to Multnomah County Jail.
habeas relief is not warranted.
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12 - OPINION AND ORDER
prior
to
his
Accordingly,
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 _10_ day of AUGUST, 2011.
_/s/ Malcolm F. Marsh_______
Malcolm F. Marsh
United States District Judge
13 - OPINION AND ORDER
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