Troiano v. Thomas
Filing
20
OPINION AND ORDER. The Court DENIES the Petition for Writ of Habeas Corpus. IT IS SO ORDERED. Signed on 6/28/2012 by Judge Anna J. Brown. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTL.AND DIVISION
LAWRENCE TROIANO,
Case No. 3:11-cv-01004-BR
Petitioner,
OPINION AND ORDER
v.
J.E. THOMAS,
Respondent.
ANTHONY D. BORNSTEIN
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
AMANDA MARSHALL
United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 SW Third Avenue
Suite 600
Portland, OR 97204
Attorneys for Respondent
1 - OPINION AND ORDER -
BROWN, Judge.
Petitioner,
an inmate at FCI Sheridan,
corpus action pursuant to 28 U.S.C.
§
2241.
brings this habeas
For the reasons that
follow, the Court DENIES the Petition for Writ of Habeas Corpus.
BACKGROUND
On November 1, 2010, this Court imposed a 68-month sentence
against
Petitioner
of
Distribution
841 (a) (1), (b) (1) (c)
after
Heroin
he
in
pleaded
guilty
violation
to
of
one
of
u.s.c.
21
count
§
Petitioner has a projected release date of
November 11, 2014.
Prior to the sentencing hearing, Petitioner was detained at
While Petitioner was there,
FCI Sheridan.
approximately
6: 4 5 p.m.
on June 4,
BOP Senior Officer Specialist
2010,
J.
at
Lara
walked past cell 108 and noticed a smell of intoxicants coming
from inside.
Officer Lara opened the door and observed Petitioner
"in direct possession of a bag of homemade intoxicants."
She
noted that the smell of intoxicants was very strong inside the
cell.
the
Officer Lara saw Petitioner place the bag he was holding in
toilet
additional
and
rip
inmates
it
open.
who
were
Officer
standing
Lara
near
also
two
observed two
trash
cans
containing intoxicants.
Lieutenant D.
Payne took photographs of the intoxicants in
the toilet and the two trash cans.
Senior Officer Brian Gray
tested the intoxicants, which tested positive for .06% alcohol.
2 - OPINION AND ORDER -
- - . - - - - - - - - - -
Officer Lara wrote Incident Report No. 2024338 which charged
Petitioner with a violation of Code 222,
Possessing or
The Incident Report also charged a violation
Using Intoxicants.
of Code 316,
Making,
"Being in an Unauthorized Area," because Petitioner
was not assigned to that cell.
On June 5, 2010, Lieutenant J. Keller delivered a copy of the
Incident
Report
to
Petitioner
Petitioner
rights.
Lieutenant Keller,
On June
8,
indicated
and
advised
he
understood.
of
According
his
to
Petitioner then stated "It's right."
2010,
the Unit
Disciplinary Committee
convened to consider the Incident Report.
Petitioner stated:
Petitioner
"Yeah,
it was mine,
("UDC")
During the UDC meeting,
I
was helping someone
The UDC referred the Incident Report to the Discipline
out."
Hearing Officer ( "DHO") for a hearing.
Petitioner signed a Notice
of Discipline Hearing Before the DHO indicating he did not wish to
have
a
staff
representative
or
to
have
witnesses
at
the
DHO
hearing.
On June 12, 2010, DHO Daniel Cortez conducted a disciplinary
During
hearing.
the
hearing,
Petitioner
"I
stated:
was
in
possession of the intoxicants and I was in someone else's cell.
I was not supposed to do either.
I wasn't drinking."
Petitioner
did not offer any documentation or other evidence in his defense.
DHO
Cortez
admissions
to
considered
Lieutenant
3 - OPINION AND ORDER -
Petitioner's
Keller
and
the
admission,
UDC,
as
his
well
prior
as
the
written
statement
of
Lara,
and
Gray,
Officer
photographs
the
a
memorandum
taken
submitted by
Senior
Officer
by
Lieutenant
Payne.
The DHO found Petitioner committed the prohibited acts as
charged.
As sanctions for the Code 222 violation, the DHO disallowed
27
days
of good conduct
Disciplinary
Segregation
privileges.
For
time
the
and
Code
("GCT")
45
316
and
days
of
violation,
imposed
loss
the
21
of
DHO
of
commissary
imposed
additional 4 5 days of loss of commissary privileges,
suspended pending 180 days of clear conduct.
days
an
which was
A copy of the DHO's
report was addressed to Petitioner and placed in the inmate mail
on July 9, 2010.
Petitioner did not appeal the DHO's decision.
On November 29,
Officer
Specialist
Petitioner's cell.
2010,
at
approximately
P.L.
Campbell
6:50
conducted
a.m.,
a
Senior
search
of
Officer Campbell found a trash can covered
with a towel in Petitioner's locker.
In the trash can, Officer
Campbell found a yellow bag containing a liquid which emitted a
strong odor of grapefruit.
intoxicants.
Officer
The
Campbell
Officer Campbell tested the liquid for
liquid
wrote
tested
Incident
positive
Report
No.
for
.40%
alcohol.
2095752
charging
Petitioner with violating Code 222, "Making, Possessing, or Using
Intoxicants."
On November 29, 2010, Lieutenant M. Morris-Silveira delivered
a copy of the Incident Report to Petitioner and advised Petitioner
4 - OPINION AND ORDER -
of his rights.
Petitioner indicated he understood.
Lieutenant Marris-Silveira,
me.
According to
Petitioner then said "It belongs to
I made it out of grapefruit."
On
December
Incident Report.
1,
2010,
consider
the
During the UDC meeting, Petitioner stated:
"It
was grapefruit juice."
the
UDC
convened
to
Based on Officer Campbell's statement in
the incident report and the positive reading for intoxicants, the
UDC
referred
the
Incident
Report
to
the
DHO
for
a
hearing.
Petitioner signed a Notice of Discipline Hearing Before the DHO
indicating he did not wish to have a staff representative or to
have witnesses at the DHO hearing.
On
December
10,
2010,
DHO
During the hearing,
hearing.
juice from grapefruits
I
Roszel
held a
Petitioner stated:
got at breakfast.
because it was in my locker.
with it."
J.
I
disciplinary
"I made the
took possession
I was attempting to do something
Petitioner did not offer any documentation or other
evidence in his defense.
The DHO considered Petitioner's statements at the DHO hearing
and to
the
UDC and Lieutenant Morris-Sil veira.
considered the written Incident Report,
The
DHO also
as well as a memorandum
written by Officer Campbell which stated the following:
On 29 November 2010, at approximately 0658, after
departing cell 203, Inmate Troiano/72379-065, called at
me, stating he needed to talk to me. After entering the
officer station Troiano indicated that hooch is his and
his roommate has no knowledge.
He asked me several
5 - OPINION AND ORDER -
times not to report the finding the hooch to the
Operations Lt and for me just to have him pour out down
the toilet while I watch. He stated he would move to a
different cell and restrict himself in his room and not
come out for the rest of the day.
The
DHO found
Petitioner committed the prohibited act
charged in the Incident Report.
By way of sanctions,
as
the DHO
disallowed 27 days of GCT and imposed 20 days of disciplinary
segregation and 45 days of loss of commissary privileges.
The
loss of commissary privileges was suspended pending 180 days clear
However,
conduct.
because Petitioner had not maintained clear
conduct for 180 days since his previous Incident Report, the DHO
executed the sanction of 45 days of loss of commissary privileges
from Incident Report 2024338.
was
addressed to
A copy of the DHO's written report
Petitioner and placed in the
December 17, 2010.
inmate mail
on
Petitioner did not appeal the DHO's decision.
On August 18, 2011, Petitioner filed his Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C.
§
2241 in this Court.
In the
Petition he alleges his due process rights were violated in the
course
of
both
disciplinary
proceedings.
Respondent
argues
Petitioner is not entitled to relief because he failed to exhaust
his available administrative remedies and because, in any event,
he was provided all the process due under the circumstances.
6 - OPINION AND ORDER -
DISCUSSION
I.
Exhaustion of Remedies
In
general,
prisoners
federal
must
exhaust
their
administrative remedies prior to filing a habeas corpus petition
under 28 U.S.C.
§
Martinez v. Roberts,
2241.
(9th Cir. 198 6) (per curiam) .
is not jurisdictional,
804 F.2d 570, 571
Although the exhaustion requirement
this court may dismiss a habeas petition
for failure to exhaust administrative remedies.
I d.
Exhaustion
may be excused if the administrative
are
inadequate,
futile,
or where pursuit
cause irreparable injury.
remedies
of the administrative
See Laing v. Ashcroft,
remedies
would
370 F.3d 994,
1000-01 (9th Cir. 2004).
Petitioner
argues
exhaustion
of
remedies
is
not
jurisdictional and that it should be excused because it is now
futile to do so.
While it appears Petitioner did not diligently
pursue his administrative remedies, the Court nevertheless excuses
the exhaustion requirement in the circumstances of this case in
order to reach the merits which, as noted, results in the denial
of the Petition in any event.
II.
Due Process Rights
A.
Legal Standards
In order to obtain relief pursuant to 28 U.S.C.
§
2241,
a
petitioner must establish that he is "in custody in violation of
7 - OPINION AND ORDER -
the Constitution or laws or treaties of the United States."
u.s.c. § 2241(b) (3)
Habeas
corpus
jurisdiction is
28
available
under§ 2241 for a prisoner's claim that he has been denied good
conduct credits without due process of law.
Bostic v.
Carlson,
884 F.2d 1267, 1269 (9th Cir. 1989)
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 conduct time credits.
Wolff
v. McDonnell, 418 U.S. 539, 556-57 (1974); Superintendent v. Hill,
472
u.s.
445,
454
However,
(1985).
hearings are not part of a
"[p]rison
criminal prosecution,
disciplinary
and the full
panoply of rights due a defendant in such proceedings does not
apply."
Wolff,
418
U.S.
at
(2)
Due
process
in
prison
(1) the right to appear before an
disciplinary hearings requires:
impartial decision-maker;
556.
24-hour advance written notice of
the disciplinary charges; (3) an opportunity, when consistent with
institutional safety 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
factfinder
of the
evidence
disciplinary action.
(5)
a written statement by the
relied on and the
reasons
for
the
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).
8 - OPINION AND ORDER -
The substantive requirements of due process are satisfied if
there is "some evidence" to support the decision by the prison
disciplinary officials.
Hill, 472 U.S. at 454.
The Supreme Court
explained the "some evidence" standard as follows:
Ascertaining whether this standard is satisfied does not
require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing
of the evidence. Instead, the relevant question is
whether there is any evidence in the record that could
support the conclusion reached by the disciplinary
board.
Id.
In order for a litigant to prevail on a claim of insufficient
evidence in a disciplinary hearing context, he must show that the
record in his case is "so devoid of evidence that the findings of
the . . . board were without support or otherwise arbitrary."
I d.
at 457.
B.
Analysis
1.
Incident Report 2024388
Petitioner argues his due process rights were violated by the
imposition of disciplinary sanctions in the form of loss of good
time credits for the June 4, 2010, incident because there was not
reliable evidence that the liquid found in his cell was anything
other than grapefruit juice.
without merit.
Petitioner
Petitioner's argument is patently
At the disciplinary hearing on June 12,
admitted
to
the
DHO
"I
was
in
intoxicants and I was in someone else's cell.
9 - OPINION AND ORDER -
possession
2 010,
of
the
I did know I was
not supposed to do either.
Exh. 2, p.
I wasn't drinking it."
Cortez Decl.,
This admission, along with the evidence that the
3.
reporting officer smelled a strong odor of intoxicants in the cell
and that the liquid found in the cell was tested positive for the
presence
of
alcohol
is
sufficient
for
the
DHO
to
conclude
Petitioner committed the prohibited act.
Petitioner also argues the June 2010 sanction violated his
due process rights because he had not yet been sentenced for his
crime and could not therefore be sanctioned with the loss of good
In Resnick v. Adams,
time credit.
37 F.Supp.2d 1154
1999), the same argument was considered and rejected.
(C.D. Cal.
This Court
agrees with the analysis in Resnick.
Pretrial detainees may not be punished by prison officials
for the crime or crimes that led to their incarceration.
Wolfish,
441
U.S.
520,
538-39
(1979)
They may,
Bell v.
however,
be
disciplined for misconduct they commit while awaiting trial and/or
sentencing.
Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996).
Imposing sanctions on a pretrial detainee for misconduct committed
during his detention is "constitutional if it also serves some
legitimate governmental objective such as addressing a specific
institutional
violation
and
is
seriousness of the violation."
A federal
prisoner who is
not
excessive
light
of
the
Bell, 441 U.S. at 538-39.
serving a
term of imprisonment
pursuant to a sentence of more than one year
10 - OPINION AND ORDER -
in
(other than a term
for the duration of the prisoner's life),
days of credit per year for good conduct.
may receive up to 54
18 U.S.C.
§
3624(b) (1).
Although pretrial detainees do not automatically earn good time
credit, they may be recommended for good time credit for the time
spent
in
52 3. 17 ( 1)
pretrial
or
pre-sentence
See
custody.
28
C.F.R.
§
(" [a] pretrial detainee may not earn good time while in
pretrial status.
A pretrial detainee, however, may be recommended
for good time credit.
This recommendation shall be considered in
the event that the pretrial detainee is later sentenced on the
crime for which he or she was in pretrial status.")
the
Bureau
determines
that
the
However, "if
prisoner
has
not
satisfactorily complied with such institutional regulations, the
prisoner
shall
receive
no
such
credit
toward
service
of
the
prisoner's sentence or shall receive such lesser credit as the
Bureau determines is appropriate."
18 U.S.C.
§
3624(b) (1).
As in Resnick, Petitioner was eligible to be awarded up to 54
days of good time credit annually, provided he was later sentenced
to a prison term exceeding one year on his offense of conviction
and he
satisfactorily complied with institutional
Due to his disciplinary violation,
however,
regulations.
Petitioner lost 27
days of good conduct time he could have been eligible to receive.
Because
federal
pretrial detainees may be punished
for
prison
misconduct by disallowing good time credit, and because Petitioner
11 - OPINION AND ORDER -
received the process he was due, his challenge to the June 2010
disciplinary sanction lacks merit.
2.
Incident Report 2095752
Petitioner argues the evidence was not sufficient for the DHO
to find Petitioner committed a violation in connection with the
November 2010 incident.
Again, however, the Court concludes
the
record contains "some evidence" from which a DHO could conclude
Petitioner
intoxicants.
was
guilty
of
the
making,
possessing,
or
using
In the incident report prepared by Officer Campbell,
he stated that during a November 29, 2010, search of Petitioner's
cell he found a towel covering a trash containing a yellow bag of
liquid which smelled strongly of grape
liquid showed it contained alcohol.
fruit.
A test of the
In a separate memorandum on
that same date, Officer Campbell related what happened after he
left Petitioner's cell:
[Petitioner] called at me, stating he needs to
talk to me. After entering the officer station Troiano
indicated that hooch is his and his roommate has no
knowledge. He asked me several times not to report the
finding the hooch to the Operation Lt and for me just to
have him pour out down the toilet while I watch.
He
stated that he would move to a different cell and
restrict him self in his room and not come out for the
rest of the day.
Cortez Decl., Exh. 3, p. 7.
Finally, at the disciplinary hearing,
Petitioner stated "I made the
breakfast.
juice from grapefruits
I
I took possession because it was in my locker.
attempting to do something with it."
12 - OPINION AND ORDER -
got at
I was
Cortez Decl., Exh. 3, p. 3.
Petitioner
argues
the
test
results
on
the
liquid
are
unreliable, but he provides no evidence to support this assertion.
Petitioner
also
asserts
Officer Campbell
somehow
confused the
intoxicants found in his cell with those found in another inmate's
cell
but
again,
provides
no
evidence
in
support.
Finally,
Petitioner's present assertion that the liquid was only juice is
not sufficient.
a
reasonable
Accordingly,
The DHO relied on "some evidence" that could lead
person
to
conclude
Petitioner possessed
alcohol.
Petitioner received the process he was due for the
November 2010 disciplinary sanction.
CONCLUSION
For these reasons, the Court DENIES the Petition for Writ of
Habeas Corpus.
IT IS SO ORDERED.
DATED this
;)..c/'- day
of June, 2011.
ANNA J. BROWN
United States District Judge
13 - OPINION AND ORDER -
F:\Share\Brown-LawClerks\ll-1004troiano0627opin.wpd
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