Opinion
CV-22-00528-TUC-RM-BGM
08-23-2023
Gary Allen Kachina, Petitioner, v. M. Gutierrez, Warden, Respondent.
REPORT AND RECOMMENDATION RE: PETITION UNDER 28 U.S.C. § 2241 FOR A WRIT OF HABEAS CORPUS (DOC. 1)
Honorable Bruce G. Macdonald, United States Magistrate Judge
Pending before the Court is Petitioner Gary Allen Kachina's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Petition”). (Doc. 1.) Respondent filed a Return and Answer to Petition (“Answer”) and Petitioner replied. (Doc. 12; Doc. 17.) The Petition is ripe for adjudication. Pursuant to 28 U.S.C. § 636(b) and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (“LRCiv”) this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court, deny the Petition (Doc. 1).
I. THE PETITION
Gary Allen Kachina's Petition raises due process challenges for a prison disciplinary proceeding and asks this Court to restore all of Petitioner's loss of good conduct time, i.e., 27 days, revoked for a violation of Code 201, fighting with another person, for an incident that occurred on June 2, 2021. (Doc. 1 at 4.)
In the Petition, Petitioner does not identify the incident report number Petitioner is challenging. The Bureau determined the report to be Incident Report No. 3510327, based on the dates Petitioner provided, the description of the incident, and resulting loss of good conduct time. (Doc. 12-1 at 3, Ex. A, at ¶ 8.).
Petitioner asserts four (4) grounds for relief. In Ground One, Petitioner contends that his “27 days of good time was taken by a bias hearing officer in violation of due process,” and that information contained in the DHO report was not available to him when he filed his administrative remedies. (Doc. 1 at 4.) In Ground Two, Petitioner alleges that he was “denied [the] right to present documentary evidence . . . in violation of due process . . . .” (Doc. 1 at 5.) In Ground Three, Petitioner contends that his due process rights were violated because he was “denied [the] right to call witnesses[.]” (Doc. 1 at 6.) In Ground Four, Petitioner alleges that he was “denied notice of the charge within 24 hrs of [the] hearing date” based on the theory that the original incident report was withheld, allegedly violating his due process rights. (Doc. 1 at 7.)
Petitioner is currently serving a 120-month term of imprisonment for Felon in Possession of a Firearm in violation of §§ 922(g)(1) & 924(a)(2), Title 18, United States Code. (Doc. 12.) Petitioner committed the underlying offense which gave rise to his incarceration on February 5, 2015. (Doc. 12), Public Info. Inmate Data (as of Mar. 7, 2023) (Att. “1”) (Doc. 12-1 at 11). Petitioner's projected released date is February 26, 2024. Fed. BOP Inmate Locater, https://www.bop.gov/inmateloc/ (last visited August 10, 2023). Petitioner has been incarcerated at USP-Tucson since November 22, 2017. See Answer (Doc. 12 at 2), Estrada Decl. (Exh. “A”) (Doc. 12-1 at 3, ¶ 6.)
Page citations refer to the Case Management/Electronic Case Files (“CM/ECF”) page number for ease of reference.
Petitioner's original sentence was for 210-months but was later reduced to 120-months by the United States District Court for the District of Minnesota. (Doc. 12-1 at 3, Ex. A, at ¶ 6) (see also Doc. 12-1 at 11). United States v. Kachina, 715 Fed.Appx. 587 (8th Cir. 2018); see also United States v. Kachina, 810 Fed.Appx. 475 (8th Cir. 2020) (the supervised release portion of Kachina's sentence was reduced from a five-year term to “not more than three years” 18 U.S.C. § 3583(b)(2)). The Court takes judicial notice Fed.R.Evid. 201.
II. JURISDICTION
“Federal courts are always ‘under an independent obligation to examine their own jurisdiction,' . . . and a federal court may not entertain an action over which it has no jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). “Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court.” Id. at 864. Therefore, before proceeding to any other issue a court must establish whether a habeas petition is filed pursuant to § 2241 or § 2255 to determine whether jurisdiction is proper. Id. at 865.
Here, Petitioner does not claim that the sentencing court imposed an illegal sentence; rather he seeks relief with respect to the time credited to his federal sentence. As such, Petitioner is challenging the manner, location, or condition of the execution of his sentence. See e.g., Rogers v. United States, 180 F.3d 349 (1st Cir. 1999) (Section 2241 petition is appropriate vehicle to challenge the correctness of a jail-time credit determination, once administrative remedies have been exhausted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc). At the time Petitioner filed his Petition, Petitioner was an inmate at United States Penitentiary in Tucson, Arizona (USP-Tucson). See Fed. Bureau of Prisons (“BOP”) Inmate Locator, www.bop.gov/inmateloc/ (last visited August 10, 2023). Based on Petitioner's incarceration at USP-Tucson at the time of the Petition's filing, this Court retains jurisdiction to consider the Petition. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990).
III. INMATE DISCIPLINE PROGRAM
The Bureau's inmate discipline program is designed to help ensure the safety, security, and orderly operation of the Bureau's correctional institutions and the protection of the public, by authorizing Bureau staff to impose sanctions on inmates who commit prohibited acts. 28 C.F.R. § 541.1; see also 18 U.S.C. § 4042(a)(3). Bureau policy enumerates the prohibited acts divided into four categories of severity: Low, Moderate, High, and Greatest. 28 C.F.R. § 541.3. The discipline process usually begins when a staff member issues an inmate an incident report, based on the staff member's observation or reasonable belief that the inmate committed a prohibited act. 28 C.F.R. § 541.5. The incident report describes the incident and is ordinarily delivered to the inmate within 24 hours of staff learning of the incident. Id. A staff member investigates the incident and informs the inmate of the charge or charges and of the inmate's right to remain silent. 28 C.F.R. § 541.5(b). During the investigation, the inmate may make a statement and request that the investigator interview witnesses or review other evidence. Id. Under 28 C.F.R. § 541.5:
a) Incident report. The discipline process starts when staff witness or reasonably believe that you committed a prohibited act. A staff member will issue you an incident report describing the incident and the prohibited act(s) you are charged with committing. You will ordinarily receive the incident report within 24 hours of staff becoming aware of your involvement in the incident.
b) Investigation. After you receive an incident report, a Bureau staff member will investigate it.
(1) Information: The investigator will specifically inform you:
(A) of the charge(s) against you; and
(B) that you may remain silent at all stages of the discipline process, but that your silence may be used to draw an adverse inference against you at any stage of the process. Your silence alone, however, cannot be the basis for finding you committed the prohibited act(s).
(2) Statement: When the investigator asks for your statement, you may give an explanation of the incident, request any witnesses be interviewed, or request that other evidence be obtained and reviewed. However, the staff investigation of the incident report may be suspended before requesting your statement if it is being investigated for possible criminal prosecution.
(3) Informally resolving the incident report. The incident report may be informally resolved at any stage of the disciplinary process, except for prohibited acts in the Greatest and High severity levels, or as otherwise required by law or these regulations. If the incident report is informally resolved, it will be removed from your records.28 C.F.R. § 541.5 (emphasis added).
Once the investigation is complete, the Unit Disciplinary Committee (“UDC”) reviews the incident report. 28 C.F.R. § 541.7. The inmate may appear before the Committee and may make a statement and present documentary evidence. 28 C.F.R. § 541.7(d) & (e). The Committee automatically refers the incident report to the Disciplinary Hearing Officer (“DHO”) if an inmate is charged with a Greatest or High severity prohibited act or if the inmate is subject to the loss of good conduct sentence credit as a mandatory disciplinary sanction. 28 C.F.R. § 541.7(a)(4). “If the UDC refers the incident report to the DHO for further review, the UDC will advise you of your rights at the upcoming DHO hearing, as detailed in § 541.8.” 28 C.F.R. § 541.7(g).
When an incident report is referred to the DHO, the officer conducts a hearing. 28 C.F.R. § 541.8. The DHO is an “impartial decision maker,” who was not “a victim, witness, investigator, or otherwise significantly involved in the incident.” 28 C.F.R. § 541.8(b). The inmate receives written notice of the charge or charges at least 24 hours before the hearing. 28 C.F.R. § 541.8(c). The inmate may request a staff representative to help him understand the charges and the proceedings and to assist him before and during the hearing. 28 C.F.R. § 541.8 (d). The inmate is permitted to appear at the hearing, unless the hearing officer determines the inmate's appearance would jeopardize institution security. 28 C.F.R. 541.8(e)(1). The inmate may make a statement and present documentary evidence at the hearing. 28 C.F.R. 541.8(f).
After the hearing, the DHO may: (1) find that the inmate committed the prohibited act(s) charged and/or a similar prohibited act(s) as described in the incident report; (2) find the inmate did not commit the prohibited act(s) charged; or (3) refer the incident report back for further investigation, review and disposition. 28 C.F.R. § 541.8(a). The findings will be based on “at least some facts, and if there is conflicting evidence, on the greater weight of the evidence.” 28 C.F.R. § 541.8(f). The DHO provides the inmate a written copy of the DHO's decision, including: (1) whether the inmate was advised of his rights during the DHO process; (2) the evidence relied on by the DHO; (3) the DHO's decision; (4) the sanction imposed by the DHO; and (5) the reason(s) for the sanction(s) imposed. 28 C.F.R. § 541.8(h).
“The Attorney General may . . . classify the inmates; and provide for their proper government, discipline, treatment, care, rehabilitation, and reformation.” 18 U.S.C.A. § 4001(b)(2); U.S. v. Marchese, 341 F.2d 782, 789 (9th Cir. 1965) (“The federal prison system is operated in all its aspects by the Attorney General, part of the executive branch of the government, and not by the judiciary.”). “‘Good time' is a matter for prison authorities, not the courts, except in those extreme cases where the Bureau of Prisons or the Attorney General acts arbitrarily or fraudulently or abuses its authority.” Marchese, 341 F.2d at 789.
IV. BACKGROUND
On June 2, 2021, Correctional Officer (CO) A. Hernandez observed Petitioner and another inmate fighting in Housing Unit B. See Answer (Doc. 12 at 4), Estrada Decl. (Doc. 12-1 at 3, Exh. A, ¶ 9). CO Hernandez wrote the original incident report the same day and stated that he observed another inmate striking Petitioner. (Doc. 12-1 at 4, Exh. A, ¶ 9); Incident Report - Part I - dated June 2, 2021 (original) (Attach. “3”) (Doc. 12-1 at 17). CO Hernandez charged Petitioner with a violation of Discipline Code 201, fighting with another person. (Doc. 12 at 4) Exh. A, ¶ 9 (Doc. 12-1 at 3), Attach. 3 (Doc. 12-1 at 17). However, the “incident report had to be rewritten due to the elements of the offence [not being] met or needing more supporting language.” (Doc. 12 at 4); Exh. A, ¶ 9 (Doc. 12-1 at 4); Incident Report - Part V - dated June 21, 2021 (Attach. “5”) (Doc. 12-1 at 29-31).
On June 3, 2021, CO Hernandez rewrote the incident report, providing an expanded description of the incident that included additional details. (Doc. 12 at 4); Exh. A, ¶ 10 (Doc. 12-1 at 4); Incident Report - Part 1 - dated June 3, 2021 (rewrite) (Attach. “5”) (Doc. 12-1 at 32). In the rewrite, CO Hernandez stated that he observed Petitioner push another inmate. Exh. A, ¶ 10 (Doc. 12-1 at 4); Incident Report - Part 1 - dated June 3, 2021 (rewrite) (Attach. 5) (Doc. 12-1 at 32). Petitioner and the other inmate then began fighting. Exh. A, ¶ 10 (Doc. 12-1 at 4); Attach. 5 (Doc. 12-1 at 32). CO Hernandez gave loud verbal commands, ordering both inmates to stop fighting and lay on the ground. Exh. A, ¶ 10 (Doc. 12-1 at 4); Attach. 5 (Doc. 12-1 at 30, 32). Both inmates complied with CO Hernandez's commands. Exh. A at 3, ¶ 10 (Doc. 12-1 at 4); Attach. 5 (Doc. 12-1 at 30, 32). Petitioner was handcuffed and escorted out of the housing unit. Exh. A at 3, ¶ 10 (Doc. 12-1 at 4); Attach. 3 (Doc. 12-1 at 17); Attach. 5 (Doc. 12-1 at 30, 32). CO Hernandez charged Petitioner with a violation of Discipline Code 201, fighting with another person. Exh. A at 3, ¶ 10 (Doc. 12-1 at 4); Attach. 5 (Doc. 12-1 at 32).
Petitioner disputed this fact at the UDC hearing and stated, “I was assaulted.” Attach. 5 (Doc. 12-1 at 30). And when asked by the DHO if Petitioner admits or denies the charge, Petitioner “denied the charge” and stated “I don't remember that at all. I was knocked out.” Attach. 5 (Doc. 12-1 at 30).
After the fight, Petitioner was evaluated by Health Services staff at USP Tucson. Exh. A at 4, ¶ 11 (Doc. 12-1 at 4). Due to his injuries, Petitioner was transported to the outside hospital on June 2, 2021, at 3:04 p.m. and returned to the institution at 10:32 p.m., the same day. Exh. A at 4, ¶ 11 (Doc. 12-1 at 5); SENTRY Inmate History, (Attach. “2”) (Doc. 12-1 at 14).
The original and rewritten incident report do not include the date and time the incident report was delivered to the inmate. Exh. A at 4, ¶ 12 (Doc. 12-1 at 5); Attach. 3 (Doc. 12-1 at 17); Attach. 5 at 7 (Doc. 12-1 at 32). However, the investigation into the incident states that Petitioner was provided a copy of the rewritten incident report on June 4, 2021. Exh. A at 4, ¶ 12 (Doc. 12-1 at 5); Attach. 5 (Doc. 12-1 at 34). During the investigation on June 4, 2021, Petitioner was advised of his rights and declined to provide a statement to investigating Lieutenant Joshua Christensen. Id. Lieutenant Christensen noted that Petitioner did not request witnesses or staff representation and that Petitioner “was not initially served the incident report in the 24-hour timeframe due a re-write [being] needed, as well as the inmate being at the outside hospital.” Id. Lieutenant Christensen determined that Petitioner had been properly charged and referred the matter to the UDC for further proceedings. Id.
On June 7, 2021, the UDC conducted a hearing of Incident Report No. 3510327. Exh. A at 4, ¶ 13 (Doc. 12-1 at 5); Attach. 5 (Doc. 12-1 at 33). During the UDC hearing, Petitioner stated, “I was assaulted.” (Doc. 12-1 at 33.) Based on the seriousness of the conduct, the UDC referred the Incident Report to the DHO for further proceedings. Id. On June 7, 2021, Petitioner was provided copies of the Notice of Discipline Hearing Before the DHO (Form BP-A0294) and the Inmate Rights at Discipline Hearing (Form BP-A0293), both of which Petitioner signed. Exh. A at 4, ¶ 14, Attach. 5 (Doc. 12-1 at 45-46). On the Notice of Discipline Hearing Before the DHO, Petitioner indicated that he did not wish to have a staff representative or call witnesses. (Doc. 12-1 at 46.)
On June 15, 2021, DHO Antonietta Estrada conducted the DHO hearing on Incident Report No. 3510327. Exh. A at 4, ¶ 15 (Doc. 12-1 at 5). DHO Estrada was not a victim, witness, investigator, or otherwise significantly involved in the incident prior to conducting the DHO hearing. Id. DHO Estrada confirmed that Petitioner received a copy of the incident report and understood his due process rights. Exh. A at 4-5, ¶ 15 (Doc. 12-1 at 5-6), Attach. 5 at 1-2 (Doc. 12-1 at 28-29). According to the DHO Report, Section V, “DHO Findings,” “The inmate's due process rights were read and reviewed by the DHO to the inmate[,]” “[t]he DHO confirmed the inmate received a copy of his incident report[,]”and “[t]he inmate understood his due process rights and was ready to proceed with the DHO hearing.” Attach. 5 at 1 (Doc. 12 -1 at 28). Petitioner waived his right to a staff representative, elected not to call any witnesses, and chose not to submit documentary evidence. Id. Petitioner did provide a statement. Id. In response to the charges, Petitioner stated, “I don't remember that at all. I was knocked out.” (Doc. 12-1 at 28).
The Court notes Section I, “Notice of Charge(s)” of the Discipline Hearing Officer Report, subsection A, is blank. (Doc. 12-1 at 28.).
After careful consideration and based upon the greater weight of the evidence, DHO Estrada found that Petitioner did commit the prohibited act of fighting with another person (Code 201). (Doc. 12-1 at 6, ¶ 16.) In reaching this finding, DHO Estrada relied on the facts as set forth in Incident Report No. 3510327 and noted the report had been rewritten. Id. DHO Estrada also viewed the closed-circuit television (CCTV) footage of the incident. Id. The footage showed Petitioner approach the other inmate and push him twice. Id. At that point, the other inmate punched Petitioner and both inmates moved into a cell, out of sight of the CCTV. Id. According the DHO Estrada, the footage indicated that Petitioner was the aggressor and started the incident. (Doc. 12-1 at 6, ¶ 16.) DHO Estrada also reviewed the medical assessments of both inmates, which noted injuries consistent with fighting. Id. DHO Estrada found Petitioner guilty for a violation of Code 201, and imposed the following sanctions against Petitioner:
• 27 days loss of good conduct time;
• 14 days disciplinary segregation;
• 90 days loss of commissary privileges; and
• 90 days loss of email privileges.(Doc. 12-1 at 6, ¶ 17); (Doc. 12-1 at 30). In sanctioning Petitioner, DHO Estrada noted that fighting poses a threat to the health, safety, and welfare of inmates and staff in the institution and that the sanctions were intended to deter Petitioner from engaging in this behavior in the future. (Doc. 12-1 at 6, ¶ 18); (Doc. 12-1 at 30). On June 21, 2021, a copy of the DHO Report, containing all of DHO Estrada's written findings and conclusions, was provided to Petitioner. (Doc. 12-1 at 6-7, ¶ 19.) The DHO Report also detailed the reasons for the sanctions. Id. Petitioner was specifically advised of his right to appeal DHO Estrada's findings and conclusions within 20 days through the Administrative Remedy Program. Id.
The DHO Report states that Petitioner was provided a copy on “4-21-2021.” Att. 5 at 4. However, this is a typographical error. Petitioner was provided a copy on June 21, 2021, the same day the DHO report was completed. Id.
V. ANALYSIS
A. Incident Report No. 3510327
On June 2, 2021, a fight occurred between Petitioner and another inmate. (Doc. 1 at 4, Doc. 12-1 at 3, ¶ 9.) Due to Petitioner's injuries, Petitioner was transported to the outside hospital the same day. (Doc. 1 at 4, Doc. 12-1 at 5, ¶ 11), Inmate History (Attach. “2”) (Doc. 12-1 at 14). On June 4, 2021, Lieutenant J. Christensen conducted an investigation, and noted in his report that Petitioner “also received a copy of the incident report” and “[i]nmate was not initially served the incident report in the 24 hour timeframe due to a re-write needed, as well as the inmate being at the outside hospital.” (Doc. 1 at 4), Attach. 5 (Doc. 12-1 at 34). The original and rewritten incident report do not include the date and time the report was delivered to Petitioner. (Doc. 12-1 at 5.) Petitioner states in his Regional Administrative Remedy Appeal, “[t]he alleged incident occured [ sic ] ¶ 6-2 2021 at 13:23 I was not served a report until 6-4-2021 almost 48 hours later.” Administrative Remedy 1091110 (Attach. “4”) (Doc. 12-1 at 24).
Also appears as JChristens.
The Court finds-based on Petitioner's own concession in Petitioner's Administrative Remedy Appeal dated July 22, 2021 (see also Section V. (B) infra)- Petitioner was provided a copy of the re-written Incident Report No. 3510327, on the date of the investigation, June 4, 2021. (Doc 12-1 at 24.)
1. Unit Discipline Committee (UDC) Hearing
On June 7, 2021, the Unit Discipline Committee (UDC) met regarding Incident Report No. 3510327. (Doc. 12-1 at 33.) During the UDC hearing, Petitioner stated, “I was assaulted.” Id. Based on the seriousness of the conduct, a violation of Code 201, fighting with another person, the UDC referred Incident Report 3510327 to the DHO for further disciplinary consideration and recommended “DS/Loss Good Conduct.” Id. UDC Chairman Y. Flores certified the recommendation. Id.
2. Discipline Hearing Officer (DHO) Hearing
On June 15, 2021, DHO A. Estrada conducted the hearing on Incident Report No. 3510327. (Doc. 12-1 at 5, ¶ 15; Doc. 12-1 at 28.) According to DHO Estrada's Report, “Inmate Kachina, Gary 18427-041 stated “I don't remember that at all. I was knocked out.” (Doc. 12-1 at 28.) DHO Estrada's findings include, inter alia, “[t]he inmate received a copy of his incident report, did not want to call witnesses[,]” “chose not to request a staff representative[,]” “had no documentary evidence[,]” “understood his due process rights[,]” and “was ready to proceed with the DHO hearing.” (Doc. 12-1 at 29.)
DHO Estrada found that Petitioner did commit the prohibited act of Code 201-Fighting with another person. (Doc. 12-1 at 6, ¶ 16, Doc. 12-1 at 29-30.) DHO Estrada “relied on the factual information in Incident Report No. 3510327” (Doc. 12-1 at 6, ¶ 16) and attested that “[t]he DHO took administrative notice that the incident report had to be rewritten due to the elements of the offence had not been met or needing more supporting language[,]” and “[t]his delay in no way hindered your ability to marshal a defense nor affected your appeal rights through the administrative remedy process.” Id., Doc. 12-1 at 30. DHO Estrada also “viewed the closed-circuit television (CCTV footage of the incident)” noting it was “not stored and is no longer available.” (Doc. 12-1 at 6, ¶ 16 n.3.)
B. Administrative Remedy No. 1091110-A1
Petitioner began the administrative appeal process after the DHO decision regarding the incident report. (Doc. 12-1 at 24-25.) Petitioner's Regional Administrative Remedy Appeal Application dated July 22, 2021, appealing the DHO's decision regarding Incident Report 3510327, states in pertinent part, “I was not served a report until 6-4-2021 almost 48 hours later.” (Doc. 12-1 at 24.) Petitioner asserted “[t]he delay in serving me the incident report and because I did not receive a[n] original report before the re-written report, violated my due process rights and hindered my ability to marshal a defense.” (Doc. 12-1 at 24.) Petitioner received a response from the Regional Director, M. Rios, dated September 8, 2021. (Doc. 12-1 at 26.) The Regional Director's Response dated September 8, 2021, states in pertinent part, “You were given advanced written notice of the charge against you more than 24 hours prior to your appearance before the DHO.” (Doc. 12-1 at 26.) In addition, Regional Director, M. Rios, provided, in pertinent part:
Evidence weighed against you included the account of the reporting officer who gathered evidence, investigated the incident and documented his findings in the investigative report contained in the discipline packet. Such evidence supports the fact that on the date, time and place in question, staff observed you push another inmate, resulting in a fight. You were also observed with injuries consistent with a physical altercation. This evidence, coupled by your inability to present credible and verifiable exculpatory evidence which exonerates you from the charge, reasonably led the DHO to a guilty finding.(Doc. 12-1 at 26.)
Petitioner subsequently filed a Central Office Administrative Remedy Appeal dated October 14, 2021. (Doc. 12-1 at 21.) The response dated February 10, 2022, from the Administrator, Ian Connors, to Petitioner's Central Office Appeal, states in pertinent part,
The initial incident report was written June 2, 2021; however, it was suspended to correct and/or provide more details to ensure you received proper notification of the charge. The rewrite of the incident report was
completed on June 3, 2021, and you were issued a copy the next day. Accordingly, your appeal is denied.(Doc. 12-1 at 20) (emphasis added). Even in “the absence of a response” it is considered “to be a denial at that level[.]” 28 C.F.R. § 542.18; see also Martin v. Fed. Bureau of Prisons, 2011 WL 6057608, *2 (C.D. Cal. 2011) (“If General Counsel fails to respond within 40 days, the inmate can assume that the appeal was denied and proceed[.]”).
C. Exhaustion
1. In General
The Ninth Circuit Court of Appeals has stated:
[28 U.S.C. § 2241] does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. [Footnote omitted.] However, we require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241.Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422 (2006). “The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement.” Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Fassler v. Pendleton, 110 Fed.Appx. 749 (9th Cir. 2004). “Nevertheless, ‘[p]rudential limits like jurisdictional limits and limits on venue, are ordinarily not optional.'” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) quoting Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422 (2006).
Courts may require prudential exhaustion if ‘(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.'Puga, 488 F.3d at 815 quoting Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003). “When a petitioner does not exhaust administrative remedies, a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (citations omitted). Exhaustion may be excused if pursuing an administrative remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993).
If a prisoner is unable to obtain an administrative remedy because of his failure to appeal in a timely manner, then the petitioner has procedurally defaulted his habeas corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986)). If a claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647-48, 91 L.Ed.2d 397 (1986) (cause and prejudice test applied to procedural defaults on appeal); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906-08 (9th Cir. 1986) (cause and prejudice test applied to pro se litigants).
2. Bureau of Prisons (“BOP”) Administrative Procedures
The BOP has established an administrative remedy process permitting an inmate to seek review of an issue relating to “any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a). Under that process, an inmate seeking to appeal a DHO decision shall submit the appeal “initially to the Regional Director for the region where the inmate is currently located.” 28 C.F.R. § 542.14(d)(2). “An inmate who is not satisfied with the Regional Director's response may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response.” 28 C.F.R. § 542.15(a). The deadlines contained within this process may be extended upon request by the inmate and a showing of a valid reason for delay. 28 C.F.R. § 542.15(a); 28 C.F.R. § 542.14(b). An appeal is considered filed on the date it is logged in the Administrative Remedy Index as received. 28 C.F.R. § 542.18. Once an appeal is filed, a Regional Director shall respond within 30 days; General Counsel shall respond within 40 calendar days. Id. “If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.” Id.
3. Exhaustion in the Instant Case
Here, in Ground One, Petitioner asserts he did not exhaust all administrative remedies because he did not discover the ‘availability' of the original incident report until the regional director's response regarding Petitioner's appeal indicating that the [original] “report was written and was available for the hearing officer to review at the hearing.” (Doc. 1 at 4.) Petitioner alleges, as a result, he was time-barred from the administrative remedy. (Doc. 1 at 4) (“Petitioner not served with original report and hearing officer indicated no other report to review.”). In addition to Grounds One through Four of the Petition, as identified herein, supra, Petitioner's Reply requests leave to amend under Fed.R.Civ.P., Rules 15(a), (d) to add a ground five, and/or supplement facts that “were unknown until Respondent's Reply [sic ].” (Doc. 17.) Petitioner requests that the Court exclude the closed-circuit television (CCTV) footage of the incident from being used in the litigation, asserting the evidence was withheld, suppressed, and destroyed in bad faith by Respondent. (Doc. 17 at 2-3.)
Respondent's Return and Answer.
Respondent asserts, “[b]efore filing this Petition, Petitioner appealed the decision of the DHO to the Bureau's Central Office, the highest level of the Administrative Remedy Process, and was denied.” (Doc. 12-1 at 7, ¶ 20), Administrative Remedy 1091110 (Attach. “4”) (Doc. 12-1).
The Court addresses exhaustion of Petitioner's claims, as well as, Petitioner's allegation of the ‘availability' of the original incident report asserted in Petitioner's Reply.
The Ninth Circuit Court of Appeals has recognized that: the requirement of exhaustion of remedies [is to] aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings. Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983).
In this case, the factual record is adequately developed, and nothing in the record suggests that further administrative review would result in any changes. Accordingly, the Court finds the Petitioner's claims exhausted; however, even if the exhaustion is faulty, it shall be excused, and the Court will reach the merits.
VI. PETITIONER'S DISCIPLINARY PROCEEDINGS
Petitioner asserts due process violations arising from Incident Report 3510327. See Petition (Doc. 1). Petitioner asserts the following due process violations: 1) denial of the right to an impartial hearing officer; 2) denial of the right to submit documentary evidence of original incident report; 3) denial of the right to call witnesses alleging the waiver was signed under false pretense; and 4) the withholding of the original incident report denied Petitioner's right to notice of charges within 24 hours of hearing. Petition (Doc. 1) at 4-7. Petitioner's Reply seeks leave to assert a fifth allegation, or alternatively supplement the facts, under Fed.R.Civ.P. Rule 15(a)(2) and Rule 15(d), and cites to Melnik v. Dzurenda, 14 F.4th 981 (9th Cir. 2021), regarding evidence not presented at the DHO Hearing, but noted in the Incident Report as relied on by the DHO, i.e., CCTV footage. Reply (Doc. 17).
Respondent asserts the records of the disciplinary proceeding in this case establish that Petitioner was afforded each of the applicable Wolff rights. Ex. A (Doc. 12-1 at 3-6, ¶¶ 9-19.) Respondent further notes that of the five Wolff requirements for inmate disciplinary proceedings, Petitioner alleges all but one of the five factors, i.e., assistance at the hearing if the inmate is illiterate or if the matter is complex. (Doc. 12 at 6-7); see Wolff, 418 U.S. at 563-72.
A. Standard of Review
In Wolff v. McDonnell, the Supreme Court of the United States held that due process requires procedural protections before a prison inmate can be deprived of a protected liberty interest in good time credits. 418 U.S. 539, 94 S.Ct. 2963 (1974). The United States Supreme Court in Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, held, “that revocation of good time does not comport with ‘the minimum requirements of procedural due process,' unless the findings of the prison disciplinary board are supported by some evidence in the record.” 472 U.S. 445, 454, 105 S.Ct. 2768, 2773 (1985) (emphasis added) citing Wolff, 418 U.S. at 558, 94 S.Ct. at 2976. “Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence.” Hill, 472 U.S. at 455, 105 S.Ct. at 2774. The relevant question, the Court explained, is “whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id.; see also Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994) (same); Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (referring to Hill evidence standard as “meager” but sufficient). “It is well established that judges and juries must defer to prison officials' expert judgments.” Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010). “In Bell v. Wolfish, the Supreme Court explained:
[T]he problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and maintain institutional security.”Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010) citing Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861 (1979).
“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. Keeny, 831 F.2d 183, 186 (9th Cir. 1987) citing Wolff, 418 U.S. at 563-66, 94 S.Ct. at 2978- 79. Additionally, “[t]he 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. (citations omitted). “Where an illiterate inmate is involved . . . [or] the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff.” Wolff, 418 U.S. at 570, 94 S.Ct. at 2981. Finally, inmates have a right to an impartial decision maker. Id. at 571, 94 S.Ct. at 2982.
Once the minimal procedural requirements of Wolff are met, the district court must ask “whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56, 105 S.Ct. at 2774; see also Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).
“The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact.” Hill, 472 U.S. at 456, 105 S.Ct. at 2774. “Revocation of good time credits is not comparable to a criminal conviction[,] and neither the amount of evidence necessary to support such a conviction[,] nor any other standard greater than some evidence applies in this context.” Hill, 472 U.S. at 456, 105 S.Ct. at 2774 citing Wolff, 418 U.S. at 556, 94 S.Ct. at 2974.
The Wolff factors, as set forth in Hill, are as follows:
Where a prison disciplinary hearing may result in the loss of good time credits, Wolffheld that the inmate must receive:
(1) advance written notice of the disciplinary charges;
(2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and
(3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773 (1985) citing Wolff, 418 U.S. at 563-567, 94 S.Ct. at 2978-2980. As stated by the United States Supreme Court in Wolff, “Our conclusion that some, but not all, of the procedures specified in Morrissey and Scarpelli must accompany the deprivation of good time by state prison authorities is not graven in stone.” Wolff, 418 U.S. at 571-72, 94 S.Ct. at 2982, citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973). “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”; however, “there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” Wolff, 418 U.S. at 556, 94 S.Ct. at 2975.
Wolff Factor - Advance Written Notice of the Charges (Petitioner's Ground Four)
Petitioner's Ground Four submits that his due process rights were violated because he did not receive a copy of the incident report within 24 hours of the incident. However, due process is violated when inmates do not receive 24 hours advanced notice before the hearing. On June 4, 2021, Petitioner received a copy of the rewritten Incident Report No. 3510327. (Doc. 12-1 at 5, ¶ 12) (see also Doc. 12-1 at 24). Petitioner was provided notice on June 4, 2021, of the charge of violation of Code 201, fighting with another person-this was well over the 24-hour advanced notice required for due process under Wolff-before the UDC hearing on June 7, 2021, and the DHO hearing on June 15, 2021. On June 7, 2021, Petitioner was also provided copies of the Notice of Discipline Hearing Before the DHO and the Inmate Rights at Discipline Hearing, both of which Petitioner signed. (Doc. 12-1 at 5, ¶ 14), (Doc. 12-1 at 45), (Doc. 12-1 at 46). Consequently, Petitioner had notice that he was being charged with fighting another person (Code 201) before his DHO hearing on June 15, 2021, thus providing Petitioner an opportunity to marshal a defense.
Due process does not require notification within twenty-four (24) hours of the incident. In Wolff, the Court held that “written notice of the charges must be given to the disciplinary-action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense.” Id. at 564, 94 S.Ct. at 2979. In any event, “[n]o less than 24 hours, should be allowed to the inmate to prepare for the appearance before the Adjustment Committee.” Id. However, due process is violated when inmates do not receive 24 hours advanced notice before the hearing. In fact, inmates only “ordinarily receive the incident report within 24 hours” of the incident. 28 C.F.R. § 541.5 (emphasis added); Greer v. Graber, 2012 WL 3242379, *3 (D. Ariz. July 13, 2012) (“Section 541.15(a) requires that staff provide an inmate notice of the charges, however, it requires only that it ‘ordinarily' be done within twenty-four hours of the staff becoming aware of the inmate's involvement. Thus, the four-day delay did not violate the code.”). Petitioner was provided a copy of Incident Report No. 3510327 two days after the incident, which did not violate his due process rights.
Petitioner also argues that he was not provided 24-hour advance notice because he did not receive the original incident report. However, the original incident report was suspended, as provided for in 28 C.F.R. § 541.5(b)(2) and re-written report containing the same Code (201) violation superseded the original report. 28 C.F.R. § 541.5(b)(2) (“However, the staff investigation of the incident report may be suspended before requesting your statement . . . [.]”). Petitioner's charges stemmed from the rewritten incident report, not the original report. The DHO hearing was held in response to notice of the re-written incident report and DHO Estrada, in finding Petitioner guilty, relied in part, on the observations contained in the rewritten report. Petitioner had advance notice of charges contained in the rewritten incident report and his due process rights were not violated.
The Court finds the Wolff Factor (advance written notice of the charges) was met and Petitioner's Ground Four should be dismissed.
Wolff Factor - Opportunity to Call Witness and Present Documentary Evidence (Petitioner's Grounds Two and Three)
Petitioner submits that the original incident report was exculpatory evidence and that he could not present this evidence because he was not provided with a copy. (Doc. 1 at 5.) Petitioner further submits that had the original incident report been available, Petitioner would have called witnesses. (Doc. 1 at 6.)
Respondent counters that DHO Estrada considered that Incident Report No. 3510327 had been rewritten and noted the same in the DHO Report. (Doc. 12-1 at 6, ¶ 16.) Additionally, Respondent submits that “DHO Estrada's findings were not based solely on the rewritten incident report.” (Doc. 12 at 9.) The findings, according to the DHO, were also based on CCTV footage and the inmate medical assessments. (Doc. 12-1 at 6, ¶ 16, Doc. 12-1 at 29-30.) Respondents submit further, that even if Petitioner had presented the original incident report at the DHO hearing, the outcome would not have been affected, because DHO Estrada had already considered the fact that the incident report had been rewritten, and she relied on other evidence in reaching her finding. (Doc. 12 at 9.)
Under Wolff, an inmate must be provided an opportunity to call witnesses and present documentary evidence. 418 U.S. at 563-72. “The right referenced in Wolff to ‘present documentary evidence in' the prisoner's own defense must generally include the ability to obtain that documentary evidence in the first place. Melnik v. Dzurenda, 14 F.4th 981, 986 (9th Cir. 2021) citing Wolff, 418 U.S. at 566, 94 S.Ct. 2963. However, “[A] prisoner's right to access and prepare evidence for a disciplinary hearing is not unlimited nor unfettered.” Melnik v. Dzurenda, 14 F.4th 981, 986 (9th Cir. 2021). An inmate facing disciplinary hearings may ‘call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.'” Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992) citing Wolff, 418 U.S. at 566, 94 S.Ct. at 2979. “We have held that a prisoner's right to call a witness in a disciplinary process, as articulated in Wolff, means that the prison may not impose a prohibition on witnesses being present to testify.” Melnik v. Dzurenda, 14 F.4th 981, 986 (9th Cir. 2021) citing Mitchell v. Dupnik, 75 F.3d 517, 525 (9th Cir. 1996)
On June 7, 2021, Petitioner was advised of his rights to call witnesses and present documentary evidence. (Doc. 12-1 at 5, ¶ 14.) Petitioner declined to call witnesses and signed the Notice of Discipline Hearing Before the (DHO). (Doc. 12-1 at 46.) At the DHO hearing on June 15, 2021, Petitioner elected not to call witnesses and chose not to submit documentary evidence. (Doc. 12-1 at 4-5, ¶ 15). According to the incident report, “The DHO notes during your investigation you elected to remain silent. During your UDC hearing you stated ‘I was assaulted.'” (Doc. 12-1 at 30.) In addition, according to the incident report, during the DHO hearing, “The DHO asked if you admitted or denied the charge against you. You denied the charge stating, “I don't remember that at all. I was knocked out.” (Doc. 12-1 at 30.)
Under 28 C.F.R. § 541.5, in pertinent part, “the staff investigation of the incident report may be suspended before requesting your statement if it is being investigated for possible criminal prosecution.” 28 C.F.R. § 541.5(b)(2). The response to Petitioner's Central Office Administrative Appeal, noted, “There is nothing in policy that precludes staff from rewriting an incident report during the disciplinary process. The initial incident report was written June 2, 2021; however, it was suspended to correct and/or provide more details to ensure you received proper notification of the charge.” (Doc. 12-1 at 20.)
In accordance with 28 C.F.R § 541.5, the re-written incident report superseded the original report, and the original report was not provided to Petitioner. The re-written report was provided to Petitioner more than 24 hours in advance of Petitioner's hearing(s) giving Petitioner the opportunity to marshal a defense. Petitioner was afforded the right to request witnesses and submit documentary evidence and declined to do so. The viewing of the CCTV footage by prison officials operated like a replay, for prison officials to clarify the observation of the altercation between the two inmates. The Wolfffactors do not provide for mandatory disclosure of evidence, and no request for CCTV footage by Petitioner appears in the record. Accordingly, the Court finds Petitioner's due process rights were not violated under Wolff Factor (opportunity to call witnesses and present documentary evidence) and Petitioner's Grounds Two and Three should be dismissed.
Wolff Factor - Written Statement by the factfinder of the evidence relied on and the reasons for the disciplinary action (“Impartial Fact Finder”) (Petitioner's Ground One)
Petitioner asserts the DHO was not an impartial fact finder due to the original incident report not being provided to Petitioner. (Doc. 1 at 4.)
Under 28 C.F.R. § 541.8(b), the DHO is an “impartial decision maker,” if the DHO is not “a victim, witness, investigator, or otherwise significantly involved in the incident.” 28 C.F.R. § 541.8(b). Under Wolff, “impartial fact finder” denotes “(f)ull consideration must be given to the causes for the adverse behavior, the setting and circumstances in which it occurred, the man's accountability, and the correctional treatment goals,' as well as the direction that ‘disciplinary measures will be taken only at such times and to such degrees as are necessary to regulate and control a man's behavior within acceptable limits and will never be rendered capriciously or in the nature of retaliation or revenge.' Wolff, 418 U.S. at 571, 94 S.Ct. at 2982. The majority in Wolff declined to rule that a committee that conducts the required hearings and determines whether to revoke good time is not sufficiently impartial to satisfy the Due Process Clause. Id. On the other hand, “[a]n impartial decisionmaker is a fundamental requirement of due process in a variety of relevant situations[,] and [J. Marshall and J. Brennan] would hold this requirement fully applicable here.” Wolff, 418 U.S. at 592, 94 S.Ct. at 2992 (Marshall, J., Brennan, J., joins, concurring in part and dissenting in part) citing, e.g., Morrissey v. Brewer, 408 U.S. 471, 485-486, 92 S.Ct. 2593, 2602-2603 (1972).
DHO Estrada was not a victim, witness, investigator, or otherwise involved in the incident. (Doc. 12-1 at 5, ¶ 15.) CO Hernandez rewrote Incident Report 3510327 charging Petitioner with the same Code (201) violation, fighting another inmate, as the original report. (Doc. 12-1 at 3, ¶ 10; Doc. 12-1 at 17.) Lieutenant Christensen investigated the incident. (Doc. 12-1 at 4, ¶ 12.) On June 21, 2021, Petitioner received a copy of the DHO Report following the DHO hearing. (Doc. 12-1 at 5-6, ¶ 19.) According to the incident report, the DHO found credible the staff member's account of this incident as stated in the report, i.e., “I observed i/m Kachina, G reg#18427-041 push [redacted] and both inmate s began fighting in front of cell 209 . . . [this is a rewrite]” (Doc. 12-1 at 30) (see also Doc. 12-1 at 32). The DHO “relied on factual information in Incident Report No. 3510327, which [the DHO] noted had been rewritten.” (Doc. 12-1 at 6, ¶ 16.) The DHO viewed the CCTV footage of the incident. Id. According to the report “the supporting documentation (CCTV footage, medical assessment) submitted corroborates the incident.” (Doc. 12-1 at 30.) The report provides the reasons for the sanctions, specifically to deter Petitioner from engaging in fighting in the future. (Doc. 12-1 at 30.) In accordance with 28 C.F.R. § 541.8, the DHO conducted the required hearing, determined whether to revoke Petitioners good conduct time, and provided reasons for the disciplinary actions taken. (Doc. 12-1 at 5-6, ¶¶ 15, 16.) Accordingly, the Court should dismiss Petitioner's Ground One as Petitioner was afforded the due process afforded prisoners in disciplinary proceedings for revocation of good conduct time. Hill, supra; Wolff, supra.
The CCTV footage, however, was not stored and is no longer available. (Doc. 12-1 at 6 n.3.).
Additional Facts under Right to Marshal a Defense (Petitioner's Reply)
Petitioner's Reply moves for relief under Fed.R.Civ.P. Rule 15(a)(2) and Rule 15(d), requesting leave to amend to add a ground five and/or supplement facts that were allegedly unknown to Petitioner until Respondent filed the [Return and Answer] (Doc. 12) Petitioner asserts Respondent had a duty to preserve video evidence because it was relied on in the incident report, and the Court should either exclude the evidence or treat the evidence as unfavorable to Respondents. Petitioner further asserts, for the first time in his Reply, that the lack of disclosure of the original incident report 24 hours in advance of the DHO hearing violated his right to marshal a defense. (Doc. 17 at 14.) Lastly, Petitioner's Reply requests an evidentiary hearing to expand the record. (Doc. 17 at 18.)
Procedurally, arguments raised for the first time in petitioner's reply brief are deemed waived. Delgadillo v. Woodford, 527 F.3d 919, 930 n. 4 (9th Cir. 2008); see also Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1093 n. 3 (9th Cir. 2007); Marlyn Nutraceuticals, Inc. v. Improvita Health Prod., 663 F.Supp.2d 841, 848 (D. Ariz. 2009). Substantively, Respondents were not under a duty to disclose the video footage, as the Wolff factors were otherwise met. Melnik, 14 F.4th at 991 citing Wolff, 418 U.S. at 55253, 94 S.Ct. 2963.
The Court finds Petitioner did not raise the issue of preservation of the CCTV footage in the Regional Administrative Remedy Appeal, nor was the issue raised in the Central Office Administrative Remedy Appeal, despite the DHO providing Petitioner a copy of the DHO Report on June 21, 2021, which included identification of the CCTV footage in the DHO Report. (Doc. 12-1 at 24; Doc. 12-1 at 21.) Exhaustion may be excused if pursuing an administrative remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993). Given that the ‘some evidence' standard is met as described below-even without the CCTV footage-the Court finds it is not necessary to stay the proceedings until the Petitioner has exhausted remedies, as to disclosure of the CCTV footage, and exhaustion is excused, as the Court finds the exercise would be futile. Leonardo, 646 F.3d 1157, 1160 (9th Cir. 2011). Accordingly, Petitioner's request to add a ground five, or additional facts, under Fed.R.Civ.P. Rule 15(a)(2) and Rule 15(d), should be denied.
The DHO Decision Meets the Evidentiary Standard
“Revocation of good time” comports with ‘the minimum requirements of procedural due process,' when the findings of the prison disciplinary board are supported by some evidence in the record. Hill, 472 U.S. at 454, 105 S.Ct. at 2773 (emphasis added) citing Wolff, 418 U.S. at 558, 94 S.Ct. at 2976.
The record of Petitioner's DHO hearing establishes some evidence of Petitioner's guilt. The rewritten incident report by A. Hernandez provides, “I observed i/m Kachina, G reg#18427-041 push [redacted] and both inmate s began fighting[.]” (Doc. 12-1 at 32.) The DHO relied on CO Hernandez's observations, specifically, that Petitioner pushed t he other inmate before the two began fighting. (Doc. 12-1 at 32.) According to DHO Estrada, the CCTV footage corroborated CO Hernandez's observations, and showed Petitioner push the other inmate twice. (Doc. 12-1 at 6, ¶ 16); (Doc. 12-1 at 30, 32.) DHO Estrada relied on the incident report, CCTV footage, and the inmate medical assessments in finding Petitioner guilty. (Doc. 12-1 at 5, ¶ 16.) The inmate's medical assessments also noted injuries consistent with fighting. (Doc. 12-1 at 6, ¶ 16.)
Under the Wolff factors, disclosure of the video footage is not required, and was not submitted as an issue on Petitioner's administrative remedy appeal. The eye-witness observation of Petitioner ‘pushing' another inmate (as corroborated by the video footage), in addition to the photographs of Petitioner's injuries (Doc. 12 -1 at 42, 43), and the medical reports, is sufficient for a finding of ‘some evidence.' Even if the video footage, as evidence, is removed, A. Hernandez's rewritten report remains, as ‘some evidence.'
DHO Estrada did consider Petitioner's statement and the fact that the incident report had been rewritten, but found Petitioner guilty, based on the greater weight of the evidence. (Doc. 12-1 at 6, ¶ 16.) Consequently, the ‘some evidence' standard is met, and the Petition should be dismissed.
VII. CONCLUSION
In light of the foregoing, the Court finds that the due process requirements as delineated by Hill, supra, Wolff, supra, were met in this case. For the foregoing reasons, the Court finds it appropriate to dismiss Petitioner's Grounds One through Four:
Ground One: Right to Impartial Hearing Officer
Ground Two: Right to Present Documentary Evidence
Ground Three: Right to Call Witnesses
Ground Four: Right to Notice of Charges within 24 Hours of Hearing
In addition to the above, the Court finds is appropriate to decline Petitioner's request for leave to amend to add proposed ground five: right to marshal a defense (re: CCTV footage), or to add additional facts, as alleged under Fed.R.Civ.P. Rule 15(a)(2) and Rule 15(d), as identified for the first time in Petitioner's Reply (Doc. 17.). Petitioner's administrative remedies have been exhausted, and or a stay would be futile for the reasons stated herein. In addition, the Court declines to order an evidentiary hearing to expand the record in this case.
For the foregoing reasons, this Court finds it appropriate to deny Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1), with prejudice.
VIII. RECOMMENDATION
The Magistrate Judge recommends that the District Judge, after its independent review, dismiss with prejudice, the Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus (Doc. 1).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court.
If objections are filed, the parties should use the following case number:
CV-22-00528-TUC-RM
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall send a copy of this Report and Recommendation to all parties.