Harway v. Ives

Filing 5

ORDER: The Court DENIES the Motion for Temporary Restraining Order (ECF No. 3 ) and the Petition for Writ of Habeas Corpus (ECF No. 1 ), and DISMISSES this action. Signed on 2/8/2018 by Judge Anna J. Brown. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MATTHEW HARWAY,
Case No. 3:18-cv-00143-BR
Petitioner,
ORDER

v.
RICHARD IVES, Warden,
Respondent.
BROWN, Judge.
Petitioner,

an inmate at

FCI

Sheridan,

corpus action pursuant to 28 U.S.C. § 2241.
follow,
( ECF No.

brings this

habeas

For the reasons that

the Court DENIES the Petition for Writ of Habeas Corpus
1)

and

Pe ti ti oner's

Motion

for

Temporary

Restraining

Order/Preliminary Injunction (ECF No. 3) and DISMISSES this action.
BACKGROUND
Petitioner

is

currently

serving

a

six-month

term

of

imprisonment imposed by District Judge Michael Mcshane in Case No.

1 - ORDER -

6: 07-cr-60033-MC-3

for

a

supervised release

Prison

violation.

staff have issued two Incident Reports against Petitioner.

The

first Incident Report alleges that Petitioner violated two prison
Introduction of Narcotics and Use of Phone for Criminal

rules:

Purposes.
one rule,

The second Incident Report alleges Petitioner violated
the Use of Phone for Other than Criminal Purposes.

A

Unit Disciplinary Committee ("UDC") convened and recommended that
both matters be referred to a
further hearing,

Disciplinary Hearing Officer for

and that Petitioner be sanctioned with loss of

good conduct time and loss of telephone privileges.

It does not

appear the Disciplinary Hearing Officer has yet conducted a hearing
on either Incident Report.
Petitioner

alleges

the

Incident

Reports

violate

his

due

process rights because the statements upon which they are based are
conclusory and do not establish "some evidence" that Petitioner
committed the code violations.
Incident
freedom

Report
of

interferes

association.

Petitioner also alleges the first

with

his

right

to

free

speech

Petitioner

seeks

an

immediate

and

order

restraining Respondent from imposing the proposed sanctions based
upon an argument that he faces imminent and irreparable harm in the
form of loss of his telephone privileges.
LEGAL STANDARDS

The writ of habeas corpus

is available

to a prisoner "in

custody in violation of the Constitution or laws or treaties of the

2 - ORDER -

United States."

28 U.S.C. § 224l(c) (3).

Habeas petitions brought

under § 2241 are subject to summary dismissal pursuant to Rules
l(b) and 4 of the Rules Governing Section 2254 Cases.
1 (b),

the Rules

Governing § 2254

Under Rule

Cases apply to habeas

petitions brought pursuant to§ 2241.

corpus

Under Rule 4, the court must

undertake a preliminary review of each petition for writ of habeas
corpus.

Upon such review, "[i]f it plainly appears from the face

of the petition and any attached exhibits that the petitioner is
not

entitled to

dismiss

the

relief

petition

in
and

the

district

direct

the

court,

the

clerk

to

judge must
notify

the

petitioner."

DISCUSSION
I.

Premature Petition/Exhaustion of Remedies
It is well settled that federal prisoners must exhaust their

federal administrative remedies prior to filing a habeas corpus
petition.

Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986);

see also Fendler v. United States Parole Com'n, 774 F.2d 975, 979

(9th

Cir.

1985).

jurisdictional,

its

While

the

importance

exhaustion
is

well

requirement

established.

is

not

Brown

v.

Rison, 895 F.2d 533, 535 (9th Cir. 1990).

Requiring a petitioner to exhaust his administrative remedies
aids "judicial review by allowing the appropriate development of a
factual record in an expert forum."
844, 845 (9th Cir. 1983).
3 - ORDER -

Ruviwat v.

Smith,

701 F.2d

Use of available administrative remedies

conserves "the court's time because of the possibility that the
relief applied for may be granted at the administrative level."
Id.

to

Moreover, it allows "the administrative agency an opportunity
correct

errors

proceedings."

occurring

in

the

course

of

administrative

Id.; United Farm Workers v. Arizona Agric. Employ.

Relations Bd., 669 F. 2d 124 9, 1253 (9th Cir. 1982) .

administrative remedies

"Exhaustion of

is not required where the

remedies are

inadequate, inefficacious, or futile, where pursuit of them would
irreparably

injure

the

plaintiff,

proceedings themselves are void."

or

where

the

administrative

United Farm Workers, 669 F.2d at

1253 (citation omitted).
Petitioner
administrative
disciplinary

does

not

remedies;

hearing

deny

that

indeed,

has

not

he

as

yet

has

not

exhausted
alleges,

Petitioner

been

his
the

convened.

Petitioner

asserts, nonetheless, that this Court should consider his Petition
because staff at FCI Sheridan have "a history of harassing inmates
by

writing

them

false

incident

reports

(bogus

I/R)

and

then

following up with inadequate disciplinary hearings with a hearings
officer (OHO) who provides hearings that are lacking in the minimal
due process that inmates are entitled to . . . . "

This conclusory

statement is not sufficient to excuse Petitioner from awaiting the
outcome of the disciplinary proceeding and then exhausting his
administrative remedies.

4 - ORDER -

II.

Due Process
Petitioner alleges his due process rights have been violated

because the two Incident Reports are based on conclusory statements
that are not "some evidence" that Petitioner committed the code
violations charged.

In Wolff v. McDonald, 418 U.S. 539 (1974), the

Supreme Court set out the minimum procedural protections required
by the Due Process Clause in the context of prison disciplinary
Under Wolff,

hearings.

inmates facing the loss of good conduct

time are entitled to written notice of the charges no less than 24
hours before the disciplinary hearing; an impartial hearing body;
the right to present documentary evidence; a limited right to call
witnesses; and,

a written statement as to the evidence relied on

and the reasons
process

also

for

the discipline.

requires

disciplinary finding

"some

Id.

evidence"

at

of

563-66,

guilt

in the prison context.

to

571.

Due

support

a

Superintendent v.

Hill, 472 U.S. 445, 455-56 (1985).
As noted, Petitioner's disciplinary hearing has not yet been
convened.

The procedural protections described in Wolff do not

apply the pre-hearing investigation of a disciplinary violation.

See Henderson v. Schoville, Case No. CV 00-12616-MMM (JEM), 2010 WL
342596, at *8 (C.D.Cal. Jan. 28, 2010)
63 F.3d 527, 532 (7th Cir. 1995)

(citing Whitford v. Boglino,

(inmates do not have any "federal

due process right to a prehearing investigation"); Brown v. Frey,
889

F.2d

159,

5 - ORDER -

170-71

(8th

Cir.

1989)

(there

is

"no

clear

constitutional right to an 'adequate investigation'" in the context
of prison disciplinary proceedings) ) .
allegation that
evidence"

does

the
not

Incident Reports
state a

cognizable

Accordingly,
are

Plaintiff's

not based upon

"some

claim upon which habeas

relief may be granted under § 2241.
III. Loss of Telephone Privileges

Finally,

in his request for a temporary restraining order,

Petitioner claims that the potential loss of telephone privileges
violates his rights under the First Amendment.
however,

Such a challenge,

is not cognizable in a habeas petition as a successful

challenge to the loss of telephone privileges will not shorten
Petitioner's sentence.
(9th Cir. 2003)
§

See Ramirez v. Galaza,

334 F.3d 850, 859

(finding that "habeas jurisdiction is absent and a

1983 action proper,

where a successful challenge to a prison

condition will not necessarily shorten the prisoner's sentence");
Garcia-Cortez v. Sanders, Case No. 11-1554, 2013 WL 2417937, at *12

(C.D.Cal.

May

31,

2013)

(loss

telephone

privileges

as

a

disciplinary sanction not sufficient to support habeas jurisdiction
under

§

22 41) .

restraining

As

such,

Pe ti ti oner's motion

order preventing prison officials

Petitioner's telephone access must be denied.

6 - ORDER -

for
from

a

temporary

restricting

CONCLUSION

For these reasons, the Court DENIES the Motion for Temporary
Restraining Order (ECF No. 3) and the Petition for Writ of Habeas
Corpus (ECF No. 1), and DISMISSES this action.
IT IS SO ORDERED.
DATED this

~

day of February, 2018.

ANNA J. BROWN
United StatesflDistrict Judge

~

7 - ORDER -