Harway v. Ives
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
Case No. 3:18-cv-00143-BR
RICHARD IVES, Warden,
an inmate at
corpus action pursuant to 28 U.S.C. § 2241.
( ECF No.
For the reasons that
the Court DENIES the Petition for Writ of Habeas Corpus
Pe ti ti oner's
Order/Preliminary Injunction (ECF No. 3) and DISMISSES this action.
imprisonment imposed by District Judge Michael Mcshane in Case No.
1 - ORDER -
staff have issued two Incident Reports against Petitioner.
first Incident Report alleges that Petitioner violated two prison
Introduction of Narcotics and Use of Phone for Criminal
The second Incident Report alleges Petitioner violated
the Use of Phone for Other than Criminal Purposes.
Unit Disciplinary Committee ("UDC") convened and recommended that
both matters be referred to a
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.
process rights because the statements upon which they are based are
conclusory and do not establish "some evidence" that Petitioner
committed the code violations.
Petitioner also alleges the first
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.
The writ of habeas corpus
to a prisoner "in
custody in violation of the Constitution or laws or treaties of the
2 - ORDER -
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.
Governing § 2254
Cases apply to habeas
petitions brought pursuant to§ 2241.
Under Rule 4, the court must
undertake a preliminary review of each petition for writ of habeas
Upon such review, "[i]f it plainly appears from the face
of the petition and any attached exhibits that the petitioner is
Premature Petition/Exhaustion of Remedies
It is well settled that federal prisoners must exhaust their
federal administrative remedies prior to filing a habeas corpus
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
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 -
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."
Moreover, it allows "the administrative agency an opportunity
Id.; United Farm Workers v. Arizona Agric. Employ.
Relations Bd., 669 F. 2d 124 9, 1253 (9th Cir. 1982) .
is not required where the
inadequate, inefficacious, or futile, where pursuit of them would
proceedings themselves are void."
United Farm Workers, 669 F.2d at
1253 (citation omitted).
asserts, nonetheless, that this Court should consider his Petition
because staff at FCI Sheridan have "a history of harassing inmates
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 . . . . "
statement is not sufficient to excuse Petitioner from awaiting the
outcome of the disciplinary proceeding and then exhausting his
4 - ORDER -
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
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
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
a written statement as to the evidence relied on
and the reasons
in the prison context.
Hill, 472 U.S. 445, 455-56 (1985).
As noted, Petitioner's disciplinary hearing has not yet been
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,
5 - ORDER -
constitutional right to an 'adequate investigation'" in the context
of prison disciplinary proceedings) ) .
not based upon
claim upon which habeas
relief may be granted under § 2241.
III. Loss of Telephone Privileges
in his request for a temporary restraining order,
Petitioner claims that the potential loss of telephone privileges
violates his rights under the First Amendment.
Such a challenge,
is not cognizable in a habeas petition as a successful
challenge to the loss of telephone privileges will not shorten
(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
disciplinary sanction not sufficient to support habeas jurisdiction
22 41) .
Pe ti ti oner's motion
order preventing prison officials
Petitioner's telephone access must be denied.
6 - ORDER -
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.
day of February, 2018.
ANNA J. BROWN
United StatesflDistrict Judge
7 - ORDER -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?