Garcia-Garcia v. Masters

Filing 18

MEMORANDUM OPINION AND ORDER: The Clerk is directed to modify the docket sheet to reflect that Barbara Rickard is the proper defendant herein, both in the style of the case and the short style at the top of the docket sheet. The court OVERRULES plain tiff's objections and CONFIRMS and ACCEPTS the factual and legal analysis contained within the 14 Proposed Findings and Recommendation by Magistrate Judge Aboulhosn. The court DISMISSES plaintiff's Petition for Writ of Habeas Corpus; and DIRECTS the Clerk to remove this matter from the court's docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 4/26/2018. (cc: plaintiff, pro se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
SANDRY GARCIA-GARCIA,
Plaintiff,
v.

CIVIL ACTION NO. 1:15-11697

BARBARA RICKARD, Warden,1
Defendant.

MEMORANDUM OPINION AND ORDER
I.

Introduction

By Standing Order, this action was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of proposed
findings and recommendation (“PF&R”).

Magistrate Judge Aboulhosn

submitted his proposed findings and recommendation on August 16,
2016.

In that Proposed Findings and Recommendation, the

magistrate judge recommended that this court dismiss plaintiff’s
application for Writ of Habeas Corpus, and remove this matter
from the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b), the
parties were allotted fourteen days, plus three mailing days, in
which to file any objections to Magistrate Judge Aboulhosn’s

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The proper defendant in a habeas corpus matter is the
plaintiff's custodian. The current Warden at FCI McDowell is
believed to be Barbara Rickard. Accordingly, the Clerk is
directed to modify the docket sheet to reflect that Barbara
Rickard is the proper defendant herein, both in the style of the
case and the short style at the top of the docket sheet.

Findings and Recommendation.

The failure of any party to file

such objections constitutes a waiver of such party's right to a
de novo review by this court.

Snyder v. Ridenour, 889 F.2d 1363

(4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985).

Moreover,

this court need not conduct a de novo review when a petitioner
“makes general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings
and recommendations.”
Cir. 1982).

Orpiano v. Johnson, 687 F.2d 44, 47 (4th

After obtaining an extension of time to do so, see

ECF No. 16, plaintiff filed timely objections to the Proposed
Findings and Recommendation on September 26, 2016.

The court has

conducted a de novo review of the record as to those objections.
See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.”).
II.

Analysis

On July 31, 2015, plaintiff filed an Application for Writ of
Habeas Corpus by a Person in Federal Custody under 28 U.S.C. §
2241.

In that filing, he contends that he was denied due process

during prison disciplinary proceedings that resulted in a loss of
good time credits.

Specifically, Garcia-Garcia contends that his

due process rights were violated because (1) he was denied

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witnesses and an interpreter at the hearing; and (2) the hearing
officer relied upon hearsay evidence.
Magistrate Judge Aboulhosn recommended that the court
dismiss plaintiff’s § 2241 because Garcia-Garcia was afforded the
due process to which he was entitled.
418 U.S. 539, 563-70 (1974).

See Wolff v. McDonnell,

The magistrate judge further found

that plaintiff’s due process rights were not violated because he
was not actually denied an interpreter.

Finally, Magistrate

Judge Aboulhosn concluded that sufficient evidence supported the
disciplinary decision.
Garcia-Garcia’s single objection to the PF&R is to its
conclusion that his due process rights were not violated because
he was not provided an interpreter.

Specifically, he argues that

both Wolff and the regulations of the Bureau of Prisons (“BOP”)
required that an interpreter be provided during his disciplinary
hearing.

Plaintiff also takes issue with Magistrate Judge

Aboulhosn’s conclusion that Garcia-Garcia did not require an
interpreter because the language barrier was not such that an
interpreter was necessary for him to understand the disciplinary
proceeding.

According to plaintiff, he was entitled to an

evidentiary hearing on this issue and, in his objections, he
provided evidence that showed he was provided an interpreter at a
disciplinary hearing held approximately six months before the one
at issue herein.

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“Prison disciplinary proceedings 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.

Where

a prison disciplinary hearing may result in the loss of good time
credits, Wolff held that the inmate must receive: (1) “advance
written notice of the claimed violation”; (2) an opportunity,
when consistent with institutional safety and correctional goals,
“to call witnesses and present documentary evidence in his
defense”; (3) “a written statement by the factfinders as to the
evidence relied on and the reasons for the disciplinary action”;
and (4) an opportunity to seek the aid of a fellow inmate or
prison staff on complex matters or if the inmate is illiterate”.
Id. at 563-70.
Courts have not interpreted Wolff to require the presence of
an interpreter especially where, as here, the record does not
support a finding that an interpreter was necessary for GarciaGarcia to understand the proceedings or provide a defense on his
behalf.

See, e.g., Encarnacion-Montero v. Sanders, No. CV 12-

5262 VBF (JC), 2014 WL 9913503, *5-6 (C.D. Cal. June 4, 2014)
(holding that due process did not require the provision of an
interpreter to inmate in prison disciplinary proceeding where,
among other things, inmate did not request assistance of
interpreter or any other kind of assistance); Ozsusamlar v.
Copenhaver, No. 1:13-cv-00422-SAB-HC, 2014 WL 791480, *5-6 (E.D.

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Cal. Feb. 24, 2014) (finding that no denial of due process where
inmate stated he was denied an interpreter during disciplinary
proceedings where, among other things, inmate “made several
statements at the DHO hearing and on previous occasions” and the
record did not support his allegation that inmate ever requested
an interpreter).

There is no evidence in the record that Garcia-

Garcia ever requested an interpreter.

Furthermore, during his

hearing, Garcia-Garcia indicated that he was advised of his
rights and understood them.

See ECF No. 8-1 at p.14.2

Indeed,

Garcia-Garcia communicated in English with prison officials
throughout the disciplinary proceedings making the following
comments at various junctures:

“It is not true.

I did not fight

with _____.” and “It wasn’t me; I have no comment to make.” and
“It was not a fight, it happened in Rec.
ECF No. 8-1 at pp. 5, 7, and 14.

This is all bullshit.”

Furthermore, the fact that

Garcia-Garcia had completed a 40-hour English Proficiency course
more than a year earlier is further evidence that the language
barrier was not such that an interpreter was required.

2

Garcia-Garcia was specifically advised that he had “[t]he
right to have a full-time member of the staff who is reasonably
available to represent you before the Disciplinary Hearing
Officer.” ECF No. 8-1 at p.11. Although Garcia-Garcia refused
to sign the form indicating that he had been advised of this and
other rights, BOP employee J. Solomon indicated that he or she
had personally advised Garcia-Garcia of the rights afforded to
him at a disciplinary hearing. See id. at pp.11-12.
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As to Garcia-Garcia’s evidence that he was provided an
interpreter at an earlier disciplinary hearing, the documents
from that hearing show that Garcia-Garcia specifically requested
an interpreter.

See ECF No. 17 at p.7.

Critically, Garcia-

Garcia does not contend that he requested an interpreter in
connection with the disciplinary proceeding that lays at the
heart of the action nor does the record show that one was
necessary.3
III.

Conclusion

For the reasons discussed above, the court hereby OVERRULES
plaintiff’s objections and CONFIRMS and ACCEPTS the factual and
3

With respect to Garcia-Garcia’s argument that the BOP
allegedly did not follow its own regulation, the failure to
follow a prison regulation does not mean that an inmate’s due
process rights have been violated. “[P]rison regulations are
meant to guide correctional officials, not to confer rights on
inmates.” Farrakhan-Muhammad v. Oliver, 677 F. App’x 478, 479,
2017 WL 460982, *1 (10th Cir. Feb. 3, 2017) (holding that “minor
deviations from Bureau of Prison regulations regarding when
Petitioner received the incident report and when the UDC hearing
occurred did not violate the Constitution.”); see also Cooper v.
Jones, No. 10-6003, 372 F. App’x 870, 872 (10th Cir. Apr. 13,
2010) (“The process due here is measured by the Due Process
Clause of the United States Constitution, not the internal
policies of the prison.”).
In any event, the record does not support Garcia-Garcia’s
contention that the BOP did not follow its own regulation. That
regulation provides that “[t]he Warden will also appoint a staff
representative if it appears you are unable to adequately
represent yourself before the DHO, for example, if you are
illiterate or have difficulty understanding the charges against
you.” 28 C.F.R. § 541.8(d)(1). As noted above, there is no
evidence that the BOP concluded that plaintiff was unable to
represent himself nor did plaintiff request a staff
representative despite being advised of his right to request one.
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legal analysis contained within the Proposed Findings and
Recommendation.

Accordingly, the court DISMISSES plaintiff’s

petition for Writ of Habeas Corpus; and DIRECTS the Clerk to
remove this matter from the court’s docket.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly, the

court DENIES a certificate of appealability.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and to
plaintiff pro se.
IT IS SO ORDERED this 26th day of April, 2018.
ENTER:
David A. Faber
Senior United States District Judge

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