Opinion
21-cv-00042
08-13-2021
Roberto Antoine Darden, Petitioner, v. Barbara Von Blanckensee Respondent.
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE
Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed on January 28, 2021, by Roberto Antoine Darden, who is incarcerated at the U.S. Penitentiary in Tucson, Arizona. (Doc. 1) Darden challenges the loss of 27 days of good conduct time after a prison disciplinary proceeding. Id.
The respondent filed an answer opposing the petition on May 6, 2021. (Doc. 11) Darden filed a reply on May 26, 2021. (Doc. 12)
Also pending is Darden's motion for discovery, filed on May 26, 2021. (Doc. 15) The respondent filed a response, and Darden filed a reply. (Doc. 18); (Doc. 20)
Also pending is Darden's motion for appointment of counsel to assist with discovery, filed on May 26, 2021. (Doc. 16)
Also pending is Darden's motion to strike, filed on May 26, 2021. (Doc. 17) The respondent filed a response, and Darden filed a reply. (Doc. 19); (Doc. 21)
Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bowman for a Report and Recommendation. The petition should be denied on the merits.
Darden's claims that his due process rights were violated at the first disciplinary hearing are moot because the Bureau of Prisons (BOP) granted Darden a rehearing. His due process rights were not violated when the BOP granted that rehearing.
Summary of the Case
Darden was sentenced to a 600-month term of imprisonment by the U.S. District Court for the Eastern District of Virginia on October 12, 2012. (Doc. 11-1, p. 10) He is currently confined in the U.S. Penitentiary (USP) in Tucson, Arizona. (Doc. 11-1, p. 4)
“On May 10, 2020, Officer Doner wrote an incident report [No. 3397085] charging Petitioner with fighting with another inmate, Code 201.” (Doc. 11-1, p. 4) “Doner observed Petitioner and another inmate in their cell striking each other with a closed fist to the face and upper torso area.” Id. (punctuation modified) “The inmates were separated, removed from the cell, and escorted to be medically assessed.” Id.
“On May 12, 2020, the UDC [Unit Disciplinary Committee] conducted a hearing of Incident Report No. 3397085 with Petitioner.” (Doc. 11-1, p. 4) “Following the UDC hearing, Incident Report No. 3397085 was referred to the DHO [Discipline Hearing Officer] for further consideration” presumably because of the serious nature of the alleged offense. (Doc. 11-1, p. 5)
Seven days later, on May 19, 2020, the DHO conducted a hearing. (Doc. 11-1, p. 5) The DHO found that “Petitioner did commit the prohibited act of fighting with another person, Code 201.” Id. She sanctioned Darden with “ 120 days loss of commissary privileges, 12 days of disciplinary segregation, and 27 days loss of good conduct time.” Id., pp. 5-6.
Darden alleged a number of irregularities in connection with the May hearing. He filed an administrative appeal arguing that he was not given a copy of the incident report before the hearing, he did not meet with his staff representative before the hearing, his staff representative did not assist him with discovery, and the DHO was an “investigator”. (Doc. 1-1, pp. 5-6) The Regional Director remanded the disciplinary proceeding for a rehearing. (Doc. 1-1, p. 7); (Doc. 11-1, p. 6) The Regional Director's decision explained that “[o]n appeal, the appropriate eviewing official may approve, modify, reverse, or send back with directions, including ordering a rehearing, any discipline action of the Unit Discipline Committee or Discipline Hearing Officer, but may not increase any valid sanction imposed.” (Doc. 1-1, p. 7)
Darden objected to the remand and filed an administrative appeal on October 1, 2020. Doc. 11-2, p. 5); (Doc. 11-2, pp. 21-22) On April 22, 2021, the National Inmate Appeals Administrator denied his appeal explaining that because the rehearing had already taken place, he “must first file an appeal of the rehearing decision to the Regional Director for review and esponse.” (Doc. 11-2, p. 23) The National Inmate Appeals Administrator did not address Darden's argument that the rehearing ordered by the Regional Director was not authorized by aw. Id.
The rehearing took place previously on October 7, 2020. (Doc. 11-1, p. 6) Darden did not request a staff representative, present witnesses, or provide a new statement. Id. He apparently objected to the rehearing and refused to participate. (Doc. 11-1, pp. 25-26) The DHO found that Darden was provided a copy of the incident report, and “based upon the greater weight of the evidence [the DHO] found that Petitioner did commit the prohibited act of ighting with another person (Code 201).” (Doc. 11-1, p. 6) The DHO again imposed sanctions of “120 days loss of commissary privileges, 12 days of disciplinary segregation, and 27 days oss of good conduct time.” (Doc. 11-1, pp. 5-6)
On January 28, 2021, Darden filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C 2241 challenging his loss of 27 days of good conduct time. (Doc. 1) He claims (1) he was not served a copy of the charge prior to the first hearing on May 19, 2020 and he DHO “was aware of my request to have video footage admitted as evidence, ” (2) the DHO nsisted that he answer her questions at the first hearing on May 19, 2020, (3) his staff epresentative did not contact him prior to the day of the hearing on May 19, 2020 and would not postpone the hearing to let him gather video evidence, and (4) the Western Region's remand for a second hearing violated his due process rights because a second hearing is not allowed unless he waives his rights, which he did not do. (Doc. 1); (Doc. 12, p. 4)
The respondent filed an answer on May 6, 2021, in which she argues the petition should be denied for failure to exhaust administrative remedies and, in the alternative, on the merits. (Doc. 11) Darden filed a reply on May 26, 2021. (Doc. 12) The court finds that the petition should be denied on the merits. The court does not reach the respondent's alternate arguments.
Discussion
“Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen.” Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974 (1974). Nevertheless, prisoners do retain some constitutional rights concerning the procedures for administering prison discipline. Id. These rights are not as extensive as those due a defendant in a criminal proceeding, but they are not negligible. Id.
“Due process in a prison disciplinary hearing is satisfied if the inmate receives written notice of the charges, and a statement of the evidence relied on by the prison officials and the reasons for disciplinary action.” Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987), cert. denied, 487 U.S. 1207 (1988). “The inmate has a limited right to call witnesses and to present documentary evidence when permitting him to do so would not unduly threaten institutional safety and goals.” Id.
The final decision to revoke good conduct time credits must be based on “some evidence.” Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774 (1985). “The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56, 2774. If so, then due process is satisfied. Id. The court need not examine the entire record, independently assess the credibility of the witnesses, or weigh the evidence. Id. at 455, 2774.
Claims (1), (2), and (3) allege irregularities in the first disciplinary hearing on May 12, 2020. (Doc. 1) These claims are now moot because the result of that hearing was reversed and the disciplinary proceeding was remanded for a rehearing. Put another way, even if those irregularities occurred, they did not result in a permanent loss of good conduct time because the 27-day sanction imposed after the first hearing was reversed. Those irregularities, therefore, did not affect Darden's custody, and habeas corpus relief is not available. See, e.g., 28 U.S.C. § 2241; Strohmeyer v. Belanger, 661 Fed.Appx. 471, 473 (9th Cir. 2016) (“The district court properly dismissed Strohmeyer's due process claim arising from a December 2012 disciplinary hearing because the result of that disciplinary hearing was overturned on appeal.”); Rodriguez-Puente v. Feather, 2015 WL 3514173, at *2 (D. Or. 2015) (“Because the findings and sanctions from the January 4, 2013 hearing have been superseded by the January 8, 2015 rehearing decision . . . this action is moot.”).
In Claim (2), Darden argues that the Discipline Hearing Officer (DHO) was not impartial. He maintains that she was an “avid investigator” because she noted his “uncooperative behavior during the DHO hearing” and his “refusal to answer questions that were asked of you.” (Doc. 1, p. 5) He also asserts that she was “the other inmate's personal psychologist before becoming a DHO.” Id. The DHO at the second hearing was the same DHO that conducted the first hearing, so the court will construe this claim as alleging an irregularity at the second hearing as well as the first.
Prisoners have a due process right to an unbiased decision maker. Wolff v. McDonnell, 418 U.S. 539, 570-571, 94 S.Ct. 2963, 2982 (1974). “[A] prison official who has participated in the case as an investigating or reviewing officer, or who has personal knowledge of the incident, is not sufficiently impartial to preside over the hearing.” James v. Rios, 2012 WL 2912249, at *4 (E.D. Cal. 2012). A prisoner alleging bias must overcome the “presumption of honesty and integrity on the part of decision makers.” Burgess v. Rios, 2015 WL 3402933, at *6 (E.D. Cal. 2015); see also Carlucci v. Shartle, 2019 WL 1473316, at *4 (D. Ariz. 2019) (“Prison disciplinary hearing officers are not held to the same standards of neutrality as adjudicators in other contexts.”), report and recommendation adopted, 2019 WL 1469165 (D. Ariz. 2019), affd sub nom Carlucci v. Blanckensee, 785 Fed.Appx. 443 (9th Cir. 2019).
Here, Darden argues that the DHO was biased because she was an “investigator.” (Doc. 1, p. 5) Darden does not, however, argue that the DHO was an investigator because she investigate d the fighting incident. Instead, he argues that she was an investigator because she asked him pointed questions at the hearing, noted his uncooperative behavior, and commented on his refusal to answer her questions. The DHO's behavior at the hearing is not evidence that she was a biased decision maker. See Carlucci v. Shartle, 2019 WL 1473316, at *5 (D. Ariz. 2019) (“[A]n adjudicator's remarks during the course of a proceeding that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.”) (punctuation modified).
Darden further asserts that the Discipline Hearing Officer (DHO) was “the other inmate's personal psychologist before becoming a DHO.” (Doc. 1, p. 5); (Doc. 1-1, p. 6) He does not provide any evidence to support this allegation, however. Moreover, it is unclear how this allegation, assuming it were true, would indicate that the DHO was biased. If the DHO had a professional treating relationship with the other inmate, she might evaluate his testimony based on factors that were not presented at the hearing, which could result in improper bias. But in this case, the other inmate did not offer any testimony. (Doc. 11-1, p. 25) The decision of the DHO was apparently based entirely on the documentary evidence and Darden's behavior at the rehearing. (Doc. 11-1, pp. 25-26) Accordingly, the court finds that the alleged treating relationship is not evidence that the DHO was a biased decision maker.
In Claim (4), Darden argues that the Bureau of Prisons (BOP) violated due process when it reversed the DHO's decision after the first hearing and remanded for a rehearing. He maintains that a rehearing is not permitted “unless I waive my other rights, which is something I refuse to do.” (Doc. 1, p. 7) Essentially, he argues that the BOP does not get a second bite at the apple. The court does not agree.
“[I]t is generally accepted that in the absence of a specific statutory limitation, an administrative agency has the inherent authority to reconsider its decisions.” Macktal v. Chao, 286 F.3d 822, 825-26 (5th Cir. 2002) (collecting cases). This court is unaware of any specific statutory limitations in this area. Accordingly, this court concludes that the Bureau of Prisons has the authority to reverse a DHO's decision after a disciplinary hearing and remand for a rehearing. Id. The Regional Director's remand for a second hearing here did not violate Darden's due process rights. See, e.g., Powell v. Leonard, 2009 WL 4639796, at *2 (S.D. Ind. 2009) (Petitioner's claim that “his due process rights were violated in the way the rehearing was secured or conducted” was denied citing Macktal v. Chao.).
Darden further argues that the regulatory scheme is incompatible with a rehearing. Specifically, he asserts that a rehearing is incompatible with 28 C.F.R. §§ 541.5(a), 541.8(c), 541.7(c), which “intended for the initial process to flow outward or sequentially.” (Doc. 12, p. 8) “Because if such process is reversed, it will become congested with abnormalities that are without observance of the procedure required by the aforesaid codes, and thus contrary to the constitutional rights of the petitioner.” Id. (punctuation modified) (citing 5 U.S.C. § 706(2)(B) and (D)). The court is not persuaded.
First, the regulations are not statutes, so they cannot affect the BOP's inherent authority to reconsider its own decisions. See Macktal v. Chao, 286 F.3d 822, 825-26 (5th Cir. 2002). And even if they could, the court sees nothing in the regulations incompatible with the BOP ordering a rehearing. Section 541.5(a) states that a prisoner “will ordinarily receive the incident report within 24 hours of staff becoming aware of your involvement in the incident.” (emphasis added) Section 541.7(c) states that “ [t]he UDC will ordinarily review the incident report within five work days after it is issued. . . .” (emphasis added) Section 541.8(c) states that “[y]ou will receive written notice of the charge(s) against you at least 24 hours before the DHO's hearing.” These regulations describe the normal course of events surrounding a disciplinary hearing. They do not forbid a rehearing should a prisoner challenge the findings of the DHO. Darden cites to 5 U.S.C. § 706(2)(B) and (D), but that statute simply instructs a reviewing court to “set aside agency action, findings, and conclusions” found to be “contrary to constitutional right, power, privilege, or immunity” or “without observance of procedure required by law.” This court concludes, however, that the BOP's decision to remand the disciplinary hearing for a rehearing was not contrary to law. Id.
Motions
On May 26, 2021, Darden filed a motion for discovery. (Doc. 15) The respondent filed a response, and Darden filed a reply. (Doc. 18); (Doc. 20)
Unlike a party to a normal civil action, a habeas petitioner “is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 1796-97 (1997). Rule 6(a) of the Rules Governing § 2254 cases permits discovery “only in the discretion of the court and for good cause shown.” Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999), cert. denied, 528 U.S. 1092; see also Juda v. Chavez, 2010 WL 1193601, at * 1, n. 3 (D. Ariz. 2010) (applying Rule 6(a) to a § 2241 petition). “A ‘good cause' analysis requires the reviewing court to identify the ‘essential elements' of the underlying substantive claim, and determine whether petitioner's allegations, if proven, would satisfy those elements and show the violation of a constitutional right.” Williams v. Hall, 648 F.Supp.2d 1222, 1225 (D. Or. 2009) (citing Bracy, 520 U.S. at 904, 117 S.Ct. at 1797).
In the pending motion, Darden moves for “permission to discover or retrieve his ‘written request for staff rep' submitted to the DHO on May 19, 2020.” (Doc. 15, p. 1) He believes this document and other supporting evidence will help him to prove that he did not receive proper assistance from his staff representative at the May hearing. As explained above, however, the May hearing was remanded, so any irregularities concerning the May hearing are now moot.
Darden also moves for “permission to discover [the other inmate's] disciplinary record.” (Doc. 15, p. 3) He argues that this record will show that the DHO expunged this incident from the other inmate's record, which will show that the DHO was not impartial. The court does not follow Darden's argument.
Assuming the records show that the other inmate was not disciplined as severely as Darden, they do not prove that the DHO was impartial. The difference in treatment might simply indicate that the two inmates were not equally culpable. And even if the DHO was biased in favor of the other inmate, that does not indicate that the DHO was biased against Darden and he was denied an impartial decision maker. Darden's motion for discovery should be denied. (Doc. 15)
Also on May 26, 2021, Darden filed a motion for counsel to assist him with his discovery. (Doc. 16) The court finds that this motion is moot because Darden has not shown good cause for discovery in the first place. Id.
Also on May 26, 2021, Darden filed a motion to strike. (Doc. 17) The respondents filed a response, and Darden filed a reply. (Doc. 19), (Doc 21)
Darden moves that any reference to the October 7, 2020 rehearing be stricken from the respondent's answer because the rehearing was improper and any mention of it is an improper attempt to obscure the violations that occurred at the first hearing. (Doc. 17) This motion should be denied for the reasons explained above. The rehearing was not contrary to law, and it made irregularities in the first hearing moot.
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition for writ of habeas corpus (Doc. 1), denying the motion for discovery (Doc. 15), denying the motion for counsel (Doc. 16), and denying the motion to strike (Doc. 17).
Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response without permission from the District Court.