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)

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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 -

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