Opinion
CV-22-00518-TUC-JAS-BGM
04-04-2023
Rudy Rodriguez, Petitioner, v. M. Gutierrez,[1] Respondent.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
Pending before the Court is Petitioner Rudy Rodriguez's (“Petitioner” or “Rodriguez”) 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(“Response”) (Doc. 10), and Petitioner replied (“Reply”) (Doc. 14). Pursuant to 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. (Doc. 5.) The Magistrate Judge recommends the District Court dismiss the Petition (Doc. 1).
The Court notes Petitioner attached a Memorandum of Law in Support of Petition for Writ of Habeas Corpus Pursuant to § 2241 (“Memorandum in Support”) with Exhibits A through G. (Doc. 1-2.)
Respondent also filed a Notice of Lodging (Doc. 13) with attached Exhibit A.
Petitioner's reply is entitled “Petitioner's General Traverse to the AUSA's Filed [out-oftime] Lodged Exhibit - A, Return and Answer to Petitioner's Writ of Habeas Corpus Under Section 2241.” (Doc. 14.)
Rules of Practice of the United States District Court for the District of Arizona.
I. BACKGROUND
Petitioner has been incarcerated at the Federal Correctional Complex in Tucson, Arizona (FCC Tucson) since December 6, 2019. (Doc. 13, Doc. 13-1 at 3, Exh. A, Estrada Decl. at 2, ¶ 6.) Petitioner is currently serving a 200-month term of imprisonment for conspiracy to distribute a controlled substance, involving in excess of 500 grams of methamphetamine. Id. Petitioner is projected to be released from Bureau custody on September 4, 2023. Id.
The Court notes that the Estrada Decl. at 2, ¶ 6 states that “Petitioner is projected to be released from Bureau custody on September 9, 2023. Att. 1 at 1.” (Doc. 13-1 at 3.) However, the Court notes that Attachment 1 at 1 states, “PROJ REL DT: 09-04-2023.” (Doc. 13-1 at 11, emphasis added; see also Doc. 1-2 at 3).
Petitioner challenges a disciplinary violation for an incident that occurred on July 31, 2020 (Incident Report No. 3420807) that resulted in the loss of 41 days good conduct time. (Doc. 1 at 4.) Petitioner asserts one ground for relief. In Ground One, Petitioner contends that his “prison sentence was unconstitutionally lengthened by virtue of losing 41-days of good conduct time that was arbitrarily and capriciously taken violative of due process of law.” (Doc. 1 at 4.) Petitioner seeks the “return of 41-days of good conduct time” that he asserts were “unjustly taken as a result of Incident Report Number 3420807.” (Doc. 1 at 7; Petition at 6.)
Petitioner also references Incident Report No. 3385342 in his Memorandum in Support. (Doc. 1-2 at 4.) Incident Report No. 3385342 relates to a prior incident occurring April 2, 2020 and Petitioner was charged with the possession of narcotics. (Doc. 1-2 at 19, Exh. B) (see also Doc. 13-1, Exh. A at 2-3 n.3.) Incident Report No. 3385342 was expunged on April 15, 2020, because testing of the alleged narcotics was administered improperly. (Doc. 1-2 at 33, Exh. E.)
II. FACTS
A. Incident Report No. 3385342
On April 2, 2020, Petitioner received Incident Report No. 3385342, which was later “expunged.” “The UDC [Unit Discipline Committee] and DHO [Discipline Hearing Officer] held administrative hearings to expunge the IR” and concluded “EXPUNGED: In a memo dated April 6, 2020, the writer of the Incident Report (IR), SIS Technician M. Castro, requested expungement due to the NIK test being incorrectly administered.” (Doc. 13-1 at 22.) D. Makowski served as the Discipline Hearing Officer at the hearing DHO hearing April 15, 2020, expunging Incident Report No. 3385342. (Doc. 13-1 at 23.)
B. Incident Report No. 3420807
On July 31, 2020, Special Investigative Services (“SIS”) Technician Contreras found a “black paper substance” on the desk in the cell assigned to Petitioner. (Doc. 13-1 at 4, 39, Exh. A, Estrada Decl. at 3, ¶ 8.) The investigation photographs included identification of: 1) two paper strips approximately an inch in length; and 2) an ID size piece of black paper. (Doc. 13-1 at 10, 13-14.) “Found in the cell was two strips of black like paper on a calculator on the desk, and a ID size piece of black paper hidden inside of a folder pocket on the desk of the cell. (Doc. 13-1 at 43.) According to the Incident Report and the Estrada Declaration, “When asked about the black paper substance found on the calculator, Rodriguez took ownership of the strips stating he uses them ‘as markers when they play board games.'” (Doc. 13-1 at 39; Doc. 13-1 at 4, ¶ 8.) Also, “[f]ound in the cell was an ID size piece of black paper hidden inside of the folder pocket on the desk of the cell. The suspect paper had ‘Kodak' written on it. The suspect paper did test positive for Amphetamines utilizing NIK Test kit “A” (Orange to Brown) then Test Kit “U” (Burgundy).” (Doc. 13-1 at 46; see also Doc. 13-1 at 4, ¶ 8.) Based on the results of the NIK testing, SIS Technician Contreras wrote the incident report charging Petitioner with the possession of drugs/alcohol (“Code 113”). (Doc. 13-1 at 4, ¶ 8.)
NIK kits rapidly screen and presumptively identify substances suspected of being illegal drugs through chemical colorimetric tests.
P5270.09 7/8/2011 - Code 113 is a greatest severity level prohibited act / sanction available - B.1. disallow ordinarily between 50% - 75% (27-41 days) of good conduct time credit available for year (a good conduct time sanction may not be suspended). P5270.09.
On July 31, 2020, Petitioner received a copy of Incident Report No. 3420807. (Doc. 13-1 at 4, 39, Exh. A, Estrada Decl. at 3, ¶ 9.) Petitioner was advised of his rights regarding the disciplinary process and was given the opportunity to make a statement to investigating Lieutenant Daniel Patterson. Id. Petitioner stated to Lieutenant Patterson, “I went through this once already, you can take any piece of paper, and it will come back as amphetamine, this is crazy.” (Doc. 13-1 at 4, Exh. A, Estrada Decl. at 4, ¶ 9.) Lieutenant Patterson referred the matter to the UDC for further processing. Id.
1. Unit Discipline Committee (UDC) Hearing
On August 3, 2020, the UDC conducted a hearing of Incident Report No. 3420807. (Doc. 13-1 at 4, Exh. A, Estrada Decl. at 3, ¶ 10; Doc. 13-1 at 33, Attachment (Att.) 4.) During the UDC hearing, Petitioner stated, “This happened before, it's just paper. Test it.” (Doc. 13-1 at 4, 40.) Based on the seriousness of the conduct, the UDC referred Incident Report No. 3420807 to the DHO for further disciplinary consideration, and recommended “DS/Loss of GCT.” Id. at 4, 40. UDC Chairman Diaz certified the recommendation. Id.
It was later discovered, on review, that Petitioner was provided outdated copies of the Notice of Discipline Hearing Before the DHO (Form BPS294) and the Inmate Rights at Discipline Hearing (Form BPS293), both of which Petitioner signed. (Doc. 13-1 at 4, ¶ 11) (emphasis added). Petitioner should have been provided the current version of both forms (BPA0294 and BPA0293), updated in 2011. Id. (emphasis added). Current forms (BP-A0294) and (BP-A0293), respectively, were provided to Petitioner on February 22, 2021, at rehearing by UDC; see also Doc. 13-1 at 67-68.
2. Discipline Hearing Officer (DHO) Hearing
On August 6, 2020, DHO Antonietta Estrada conducted the hearing on Incident Report No. 3420807. (Doc. 13-1 at 5, ¶ 12; Doc. 13-1 at 34, Att. 4.) Petitioner was present during the DHO hearing and waived his right to a staff representative and elected not to call any witnesses. Id. After being advised of the charges in the incident report, Petitioner denied the charges and provided a written statement in his defense. Id. In his statement, Petitioner alleged “[t]his is the 2nd time I have had this problem with paper testing ‘+' for Amphetamines the 1st I/R [incident report] was expunged because I asked them to test any paper and it will come back ‘+'.” (Doc. 13-1 at 5, ¶ 12; Doc. 13-1 at 51, Att. 4.) Petitioner also alleged that Bureau Program Statement 5360.07 requires that all positive NIK tests be confirmed by a second test at an “exclusively approved Central Office laboratory.” (Doc. 13-1 at 51.) According to Estrada's Discipline Hearing Officer Report:
The DHO notes your denial, and that you stated in your written statement this incident has happened to you before and was expunged, but you provided no evidence to support this statement. Also, in your written statement you quote from program statement 5360.07, but after research this program statement was found to be the old Religious Beliefs and Practices program statement that has since been updated to 5360.09. So your statement cannot be considered credible as it does not come from that program statement or any that can be found. Your denial of knowledge is only your word and cannot be considered.(Doc. 13-1 a 36, Att. 4; see also Doc. 13-1 at 51.) According to Estrada's Declaration, submitted with Respondent's Exhibit A, Program Statement 5360.07 does not address drug detection but is rather an outdated version of the Bureau's Religious Beliefs and Practices policy. (Doc. 13-1 at 5, ¶ 12; Doc. 13-1 at 36.) Additionally, DHO Estrada attests there is no policy requiring all NIK tests be confirmed by a second test. (Doc. 13-1 at 5, ¶ 12.)
DHO Estrada found that Petitioner did commit the prohibited act of Code 113-Possession of any narcotics, marijuana, drugs, alcohol intoxicants. (Doc. 13-1 at 4, ¶ 13; Doc. 13-1 at 35, Att. 4.) DHO Estrada attests he “relied on the factual information in Incident Report No. 3278486 and supporting documentation,” and the incident report reflects reliance on, specifically, “the reporting officer's eyewitness statement.” (Doc. 131 at 5, ¶ 13; Doc. 13-1 at 36.) As a result of the finding of guilt associated with the Code 113 violation, DHO Estrada imposed the following sanctions against Petitioner:
• 41 days loss of good conduct time;
• 30 days disciplinary segregation;
• 120 days loss of social telephone privileges; and
• 120 days loss of social visitation privileges.(Id.; see also Doc. 13-1 at 37, Att. 4.)
On August 17, 2020, a copy of the DHO Report, which included all of the written findings and conclusions, was provided to Petitioner. (Doc. 13-1 at 4, ¶ 14; Doc. 13-1 at 37.) 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. (Doc. 13-1 at 4, ¶ 14; Doc. 13-1 at 38.)
C. Administrative Remedy 1051663-R1
Petitioner's Regional Administrative Remedy Appeal Application dated August 2020, appealing the DHO's decision regarding Incident Report 3420807, is stamped “Received October 9, 2020 by the Western Regional Office.” (Doc. 13-1 at 54.) A “Rejection Notice” to Petitioner from the Administrative Remedy Coordinator at the Central Office reflects the appeal was received on December 3, 2020, stating “for the reasons listed below, this central office appeal is being rejected and returned to you,” “you did not provide a copy of your regional office administrative remedy appeal (BP-10) form, and in the remarks section, “Region failed to respond timely, provide copy of your missing BP-10 form and we will accept.” (Doc. 1-2 at 39.) The Central Office indicated “you may resubmit your appeal in proper form within 15 days of the date of this rejection notice.” (Doc. 1-2 at 39.)
On appeal, Petitioner contended that the NIK tested paper did not contain narcotics and requested that it be sent to a “Central Office approved lab” for retesting at Petitioner's expense. (Doc. 13-1 at 6, ¶ 15; Doc. 13-1 at 54-55, Att. 5.) Petitioner's administrative appeal submits, in pertinent part, “[i]t is only a piece of paper and a[n] old picture that I blacked out to use as a guide when I write letters [ ] flip it over and you will see the photo company name on it.” (Doc. 13-1 at 55.) Petitioner argued on appeal that any NIK tested piece of paper will “come back positive for amphetamines.” (Doc. 13-1 at 6, ¶ 15; Doc. 13-1 at 55. Petitioner requested that his incident report be expunged. Id.
D. Rehearing Ordered Based on Outdated Forms
On February 10, 2021, Western Regional Director Melissa Rios-Marques submitted a memorandum to the Warden at FCC Tucson, stating that there was “some concern with the disciplinary process.” (Doc. 13-1 at 6, ¶ 16; Doc. 13-1 at 57.) Specifically, Director Rios-Marques noted that Petitioner was provided BP-S294 and BP-S293 forms, which were outdated versions of the current Notice of Discipline Hearing Before the DHO (and Inmate Rights at Discipline Hearing forms. Id. Director Rios-Marques noted that these forms had been updated in 2011 and that Program Statement 1222.06, Forms Management, required staff to use the most recent edition of Bureau forms. Id. To ensure compliance with Bureau policy, Director Rios Marques directed that the matter be reheard by the DHO. Id. The DHO was to consider all evidence and issue Petitioner a new DHO report. Id.
On February 10, 2021, Director Rios-Marques also notified Petitioner that the matter would be reheard by the DHO. (Doc. 13-1 at 6, ¶ 17; see also Doc. 13-1 at 56.) As noted in Director Rios-Marques' response to Petitioner's administrative appeal, in pertinent part:
On appeal, the appropriate reviewing authority shall consider: a. Whether the UDC or DHO substantially complied with the regulations on inmate discipline; b. Whether the UDC or DHO based its decision on some facts, and if there was conflicting evidence, whether the decision was based on the greater weight of the evidence; and c. Whether an appropriate sanction was imposed according to the severity level of the prohibited act, and other relevant circumstances.
We are directing the DHO to rehear the matter referenced above and process anew . . . .(Doc. 13-1 at 56.)
1. UDC re-hearing February 22, 2021
On February 22, 2021, UDC Chairman G. Cunes conducted a re-hearing of Incident Report No. 3420807. (Doc. 13-1 at 6-7, ¶ 18; Doc. 13-1 at 65, Att. 6.) During the UDC rehearing, Petitioner stated, “[t]his has happened before, please send to [a] Central Office approved lab for testing for my defense, that it is only paper and not Amphetamines.” (Doc. 13-1 at 65, Att. 6, Part II, ¶ 17.) The UDC determined that the alleged violation warranted consideration for sanctions not available to the UDC and referred Incident Report No. 3420807 to the DHO. Id. at ¶¶ 18-19. On February 22, 2021, Petitioner was provided a copy of the most recent Notice of Discipline Hearing Before the DHO (BP-A0294) and the Inmate Rights at Discipline Hearing (BP A0293) forms, both of which Petitioner signed. (Doc. 13-1 at 7, ¶ 19; Doc. 13-1 at 67-68.) The Notice of Discipline Hearing Before the DHO indicated the hearing will be held on: “TBA.” (Doc. 13-1 at 68.)
2. DHO re-hearing March 19, 2021
On March 19, 2021, Unit Manager David Makowski conducted the DHO rehearing for Incident Report No. 3420807. (Doc. 13-1 at 7, ¶ 20; Doc. 13-1 at 58, Att. 6 at 1, 5.) In addition to his role as Unit Manager, Mr. Makowski has attended DHO training, is certified in DHO policies and procedures, and serves as an Alternate DHO for disciplinary hearings. (Doc. 13-1 at 7, ¶ 20.) Unit Manager Makowski, serving as Alt. DHO Makowski, was not the reporting staff member regarding Incident Report 3420807 and did not lead the investigation into the matter. Id.
“If the institution's assigned DHO is unable to conduct hearings, the Warden arranges for another DHO, who must be certified.” Federal Bureau of Prisons Program Statement 5270.09, CN-1, Chapter 5, § 541.8(b).
Petitioner was present during the DHO hearing and waived his right to a staff representative. (Doc. 13-1 at 7, ¶ 21.) Petitioner elected not to call any witnesses. Id. After being advised of the charges in the incident report, Petitioner denied the charge and stated,
I feel it's wrong that you won't send it to the lab. Also that the region is late
in responding to my appeal; they ask for a two month extension, and it was two months late after the extension. Central Office even said they are untimely; I got paper work on it. I would like for the shot to be expunged.(Doc. 13-1 at 7, ¶ 21; Doc. 13-1 at 59, Att. 6.) Alt. DHO Makowski noted that Petitioner “provided no new relevant information in his statement.” (Doc. 13-1 at 7, ¶ 21, Doc. 13-1 at 61.) After the March 19, 2021 DHO rehearing, Alt. DHO Makowski found that Petitioner did commit the prohibited act the possession of drugs/alcohol (Code 113). (Doc. 13-1 at 6-7, ¶ 22.) According to the Estrada Declaration, Alt. DHO Makowski, “In reaching his findings, Mr. Makowski relied on the factual information in Incident Report No. 3278486 and supporting documentation.” (Doc. 13-1 at 6-7, ¶ 22.) As a result of his finding of guilt associated with the Code 113 violation, Mr. Makowski upheld the sanctions previously imposed against Petitioner:
• 41 days loss of good conduct time;
• 30 days disciplinary segregation;
• 120 days loss of social telephone privileges; and
• 120 days loss of social visitation privileges.Id.
On May 10, 2021, a copy of the DHO Report, containing all of Mr. Makowski's written findings and conclusions, was provided to Petitioner. (Doc. 13-1 at 8, ¶ 23; Doc. 13-1 at 63.) The DHO Report also detailed the reasons for the sanctions. (Doc. 13-1 at 8, ¶ 23; Doc. 13-1 at 61-62.)
The DHO Rehearing Report is dated August 13, 2020, which is incorrect and reflects the date the initial DHO Report was completed. (Doc. 13-1 at 8, ¶ 23; Doc. 13-1 at 63.) Consequently, it is unclear what day the second DHO Report was completed. Id.
E. Administrative Remedy No. 1110464-A1
Petitioner filed a second administrative appeal on May 10, 2022, alleging his “due process rights were violated throughout entire disciplinary process / DHO Re-hearing, mishandling of evidence in violation of the SIS Manual and conflict of interest acting DHO was my assigned Unit manager.” (Doc. 1 at 2.) Petitioner's administrative appeal was denied on June 2, 2022. (Doc. 1-2 at 41, Exh. G.)
III. PARTIES' POSITIONS
Petitioner asserts “[t]he Regional Director of the BOP kicked [Administrative Remedy No. 1051663-R1] back [to] Petitioner's] prison for failing to comply with the regulations on inmate discipline under the Bureau's Special Investigative Manual (“SIS Manual”) - a policy statement regarding Petitioners decision to have substance forwared [ sic ] to Central Office- approved laboratory for testing at inmates expense.” (Doc. 1 at 4.)
Respondent asserts, “Director Rios-Marques did not state the reason for the rehearing, but simply informed Petitioner that the DHO had been directed to rehear the matter.” (Doc. 10 at 6; Doc. 13-1 at 6.) Respondent further asserts that “Petitioner incorrectly contends that the rehearing was ordered based on a failure to comply with “the Bureau's Special Investigative Manual.” (Doc. 13-1 at 5 n.1.)
IV. ANALYSIS
A. 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) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), overruled in part on other grounds by City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004)). “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, a proper characterization of the petition is necessary to a determination of jurisdiction. Id.
Here, Petitioner does not claim that the sentencing court imposed an illegal sentence, rather he seeks relief with respect to disciplinary proceedings while incarcerated at a federal facility. 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 jailtime credit determination, once administrative remedies have been exhausted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc), (“[c]hallenges to the validity of any confinement or to the particulars affecting its duration are the province of habeas corpus[.]” (quoting Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004)); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (a prisoner's challenge to the “manner in which his sentence was executed . . . [is] maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”); Weinstein v. U.S. ParoleComm'n, 902 F.2d 1451, 1452 (9th Cir. 1990) (“The district court had jurisdiction pursuant to 28 U.S.C. § 2241 to review a claim by a federal prisoner challenging a decision of the United States Parole Commission”). Such a challenge must be brought pursuant to § 2241 in the custodial court.
At the time of filing the Petition, Petitioner was incarcerated at FCC-Tucson in Arizona. Accordingly, this Court has jurisdiction over this matter. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990).
B. 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[.] 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, 165 L.Ed.2d 323 (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 Reno v. Koray, 515 U.S. 50, 54-55, 115 S.Ct. 2021, 2023-24, 132 L.Ed.2d 46 (1995). “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) (alterations in original) (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, 165 L.Ed.2d 323 (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. 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. 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. 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 usually is 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 request that other evidence be obtained and reviewed. Id.
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).
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 charged or a similar prohibited act described in the incident report; (2) find the inmate did not commit the prohibited act; or (3) refer the incident 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 decision, including the following: (1) whether the inmate was advised of his rights; (2) the evidence relied upon; (3) the decision; (4) the sanction imposed; and (5) the reason for the sanction. 28 C.F.R. § 541.8(h).
4. Exhaustion in the Instant Case
Petitioner asserts that “he has fully exhausted his available administrative remedies under 28 C.F.R. § 542.15(a).” (Doc. 1-2 at 1-2.) Respondent does not challenge exhaustion of administrative remedies in this matter.
V. GROUND ONE: Due Process Regarding Incident Report No. 3420807
Petitioner challenges a disciplinary conviction that resulted in his loss of good time credits. Petitioner alleges one sole ground for relief regarding the disciplinary hearing process, i.e., “Petitioner's prison sentence was unconstitutionally lengthened by virtue of losing 41-days of good conduct time that was arbitrarily and capriciously taken violative of due process of law” asserting, “that is cognizable claim in a § 2241 habeas petition.” (Doc. 1 at 4.) Petitioner asserts that when the Regional Director ordered the Discipline Hearing Officer to re-hear the matter, rather than having DHO Estrada re-hear the matter, Petitioner's Warden assigned Petitioner's Unit Manager D. Makowski to act as DHO to rehear Petitioner's Incident Report No. 3420807. (Doc. 1 at 4.) Petitioner further asserts under Ground One that his Unit Manager D. Makowski, acting as Alternate DHO, “stated that he could not challenge the evidence-the paper board game markers allegedly containing amphetamines-because after 120 days from the date the United States Attorney's Office declines to prosecute, SIS is directed under the SIS Manual to purge the evidence” and Alt. DHO Makowski “found him guilty solely using the DHO's findings from the first hearing.” (Doc. 1 at 4-5, Petition 4-4b.) Petitioner also appears to challenge the sufficiency of the evidence, arguing that NIK testing is inaccurate, under the “some evidence” standard articulated in Hill.
Respondent asserts the records of the disciplinary proceeding in this case establish that Petitioner was afforded each of the applicable Wolff rights. (Doc. 13-1 at 4-8; Ex. A at ¶¶ 8-23.) Respondent further notes Petitioner offers no allegations that he was denied element four of the five Wolff requirements for inmate disciplinary proceedings: i.e., (4) assistance at the hearing if the inmate is illiterate or if the matter is complex. See Wolff, 418 U.S. at 563-72. Respondent acknowledges, however, that Petitioner does allege he was not afforded: (1) 24-hour advance notice of the charges; (2) a written statement by the fact finder as to the evidence relied on and the reasons for the action; (3) an opportunity to call witnesses and present documentary evidence; and (5) an impartial fact-finder.
A. Legal Standard
“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 v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 297879, 41 L.Ed.2d 935 (1974)). 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.” Superintendent, Mass. Corrections Inst. v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). “[T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits.” Id. “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.” Id. Indeed, “[t]he standard is ‘minimally stringent' only requiring ‘any evidence in the record that could support the conclusion reached by the disciplinary board.'” Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (citing Hill, 472 U.S. at 454-56, 105 S.Ct. at 2774) (emphasis added in Cato).
Following Wolff, the Supreme Court held that due process requirements are satisfied when there is “some evidence” in the disciplinary record to support the decision of the disciplinary hearing officer. Superintendent, Corr. Inst. v. Hill, 472 U.S. 445, 455-56 (1985). The “some evidence” standard does not require a court to examine the entire disciplinary record, perform an independent assessment of the credibility of witnesses, or re-weigh the evidence. Id. at 455. 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). “The some evidence standard is a low threshold and will be met even when evidence to the contrary is presented.” Carlucci v. Shartle, No. 4:18-CV-00051-TUC-RM (DTF), 2019 WL 1473316, *3 (D. Ariz. Jan. 2, 2019), report and recommendation adopted, 2019 WL 1469165 (D. Ariz. Apr. 2, 2019), aff'd sub nom. Carlucci v. Blanckensee, 785 Fed.Appx. 443 (9th Cir. 2019), quoting Howard v. Copenhaver, 2015 WL 404092, *5 (E.D. Cal. Jan. 28, 2015). A court may overturn the decision only if no reasonable adjudicator could have found the inmate guilty of the offense on the basis of the evidence presented. Henderson v. U.S. Parole Comm'n, 13 F.3d 1073, 1077 (7th Cir. 1994). In reviewing the disciplinary record, courts must defer to prison officials' expert judgments in matters of prison administration and inmate discipline. Norwood v. Vance, 591 F.3d 1062, 1065 (9th Cir. 2010).
The Due Process Clause applies to prison discipline hearings at which an inmate may lose good conduct sentence credits to which he is otherwise entitled. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974). However, the full panoply of rights encompassed by the Due Process Clause does not apply in the prison discipline context - Due Process is satisfied with procedures that ensure an inmate's protected interest is not “arbitrarily abrogated.” Id. Accordingly, the Supreme Court has held that, with respect to disciplinary sanctions impairing an inmate's protected liberty interest, Due Process calls for: (1) 24-hour advance notice of the charges; (2) a written statement by the fact finder as to the evidence relied on and the reasons for the action; (3) an opportunity to call witnesses and present documentary evidence; (4) assistance at the hearing if the inmate is illiterate or if the matter is complex; and (5) an impartial fact-finder. Id. at 563-72.
B. Analysis of Wolff Factors
1. 24-Hour Advance Notice of the Charges
Due process requires that Petitioner be notified of the charges, in writing, at least twenty-four (24) hours before his hearing. Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). Due process does not require notification within twenty-four (24) hours of the incident. Sufficiency of the notice is, in part, determined by whether “the charged party [has] a chance to marshal the facts in his defense and to clarify what the charges are, in fact. Wolff, 418 U.S. at 564, 94 S.Ct. at 2978.
BOP policy states that inmates will “ordinarily receive the incident report within 24 hours of staff becoming aware of [the inmate's] involvement in the incident.” 28 C.F.R. 541.5(a); see also BOP Program Statement 5270.09, Ch. 2 at § 541.5. “Program statements are internal agency guidelines that may be altered by the BOP at will[.]” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (quotations and citations omitted). Moreover, “[a] habeas claim cannot be sustained based solely upon the BOP's purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law.” Id.
Petitioner asserts,
Rodriguez did not receive written notice of the charges anew, provided the opportunity to call witnesses and present documentary evidence, recieve [ sic ] a new statement of the evidence relied on by the prison officials, and the new reasons for disciplinary actions relied upon by his Unit Manager. As such, Petitioner did not receive all of the procedural protections that he was due. Zimmerlee v. Kinney, 831 F.2d183, 186 (9th Cir. 1987) (citing Wolff, 418 at 563-66).(Doc. 1-2 at 10-11.) Petitioner further asserts, Unit Manger D. Makowski, acting as Alt. DHO at rehearing, “falsified the dates on the rehearing report to give the appearance that the disciplinary proceedings were in compliance with BOP Program Statement Sec. 527.09 and that Petitioner's Due process rights were upheld during the disciplinary process when they clearly were not.” Id. at 11.
Respondent asserts, D. Patterson provided Petitioner Incident Report No. 3420807 on July 31, 2020, at 11:15. (Doc. 1-2 at 17.) The initial UDC hearing was held August 3, 2020. (Doc. 13-1 at 40.) Respondent submits it is undisputed that the report was reviewed with Petitioner more than twenty-four (24) hours prior to his hearing. Petitioner's DHO Hearing was held on August 3, 2020. The DHO re-hearing was held March 19, 2021.
The Court finds Petitioner was provided 24-hour advance notice of the charges at both the hearing and re-hearing. On July 31, 2020, the same day of the incident in question, Petitioner received a copy of Incident Report No. 3420807. Consequently, Petitioner had notice that he was being charged with the possession of drugs/alcohol (Code 113) before his UDC hearing on August 3, 2020, and his DHO hearing on August 6, 2020.
When the DHO re-hearing occurred on March 19, 2021, Petitioner also had 24-hour advance notice. On February 10, 2021, regarding Petitioner's Regional Administrative Remedy Appeal, Director Rios-Marques notified Petitioner that the matter would be reheard by the DHO. (Doc. 13-1 at 6, ¶ 17; see also Doc. 13-1 at 56.) The notice from Director Rios-Marques stated as follows, “You are requesting administrative relief regarding the decision of the Discipline Hearing Officer (DHO) on August 6, 2020, in which you were found to have committed the prohibited act of Possession of Drugs/Alcohol, Code 113.” (Doc. 13-1 at 56.) Rios-Marques' notice further states, “We are directing the DHO to rehear the matter referenced above and process anew.” Id.
Accordingly, the Court finds Petitioner was provided notice of the charges against him at least 24 hours in advance of the initial DHO hearing, as well as the DHO re-hearing, and was thus afforded sufficient due process regarding notice for disciplinary hearings under Wolff, supra.
2. Written Statement as to the Evidence Relied On
Petitioner was provided a written statement as to the evidence relied on and the reasons for the action.
In the initial DHO hearing report signed August 13, 2020, DHO Estrada stated that the DHO had relied on the factual information contained in the incident report and the supporting documentation. DHO Estrada noted the following documentary evidence:
Incident Report - (BP-A288)
Inmate Rights at Discipline Hearing - (BP-A293)
Notice of Discipline Hearing Before the (DHO) - BP-A294)
Incident Report - Chain of Custody, Contraband - (BOP-ARCCC)
Incident Report - Photographs - (BOP-IRPHO)
Other PDF Document - (OTHER) inmates written statement(Doc. 13-1 at 35.) DHO Estrada also noted under “Specific Evidence Relied On to Support Findings” that “[t]he inmate had no documentary evidence to submit.” (Doc. 13 at 35.) DHO Estrada found Petitioner, “committed the prohibited act of Code 113-Possession of any narcotics, marijuana, drugs, alcohol, intoxicants.” Id. To make this finding, DHO Estrada relied upon, in pertinent part:
You denied the charge and provided a written statement. The DHO notes that although you deny the charge against you, you have provided no evidence to dispute the account of the investigation. The DHO finds credible the staff member's account of this incident as stated above. The supporting documentation submitted corroborates the incident.
The DHO notes your denial, and that you stated in your written statement this incident has happened to you before and was expunged, but you provided no evidence to support this statement.
Also, in your written statement you quote from program statement 5360.07, but after research this program statement was found to be the old Religious Beliefs and Practices program statement that has since been updated to 5360.09.
So your statement cannot be considered credible as it does not come from that program statement or any that can be found.
Your denial of knowledge is only your word and cannot be considered.(Doc. 13-1 at 36.) As noted in the Incident Report, on July 31, 2020, SIS Tech. Contreras found a black paper-like substance recovered from on top of a calculator and folder in Petitioner's assigned cell. (Doc. 13-1 at 36, Exh. A, Att. 4 at 3.) A NIK test showed a positive reading for amphetamines. Id. “When asked about the black paper substance found on the calculator, Rodriguez took ownership of the strips stating he uses them ‘as markers when they play board games'.” (Doc. 13-1 at 36.) The Incident Report provides further details regarding the testing process, upon which the DHO relied. Id. DHO Estrada “based her decision on the greater weight of the evidence.” (Doc. 13-1 at 59-63, Exh. A, Att. 6.) The report also provided the reasons for the sanctions. Id. On August 17, 2020, Petitioner received a copy of the DHO Report following the initial August 6, 2020 DHO hearing. (Doc. 13-1 at 34, 38.)
At re-hearing on March 19, 2021, Alt. DHO Makowski under “Specific Evidence Relied On to Support Findings” provided “PER ADMINSTRATIVE REMEDY Number 1051663-R1, incident report 3420807 was reconsidered and reevaluated by the DHO, and a new DHO hearing was conducted on 03-19-2021.” (Doc. 13-1 at 59-60.) Alt. DHO Makowski also noted “The inmate had no documentary evidence to submit.” Id. Alt. DHO Makowski included the previous DHO's findings, and further state “During the re-hearing on 03-19-2021 inmate RODRIGUEZ Reg. No. 30404-280 provided no new relevant information in his statement” and found “based on the facts, evidence presented, the DHO finds you committed the prohibited act of Code 113-Possession of any narcotics, marijuana, drugs, alcohol, intoxicants.” (Doc. 13-1 at 61.) The report also stated that Alt. DHO Makowski had relied on the factual information contained in the incident report and the supporting documentation. (Doc. 13-1 at 61-62, Exh A, Att. 6 at 3-4.) Alt. DHO Makowski at re-hearing, relying on DHO Estrada's findings, again noted that SIS Contreras conducted a NIK test of a black paper-like substance found in Petitioner's cell, and Petitioner took ownership of the paper-like substance. (Doc. 13-1 at 61, Att. 6 at 4.)
SIS Contreras' Incident Report 3420807-presented to DHO Estrada and relied upon by Alt. DHO Makowski at re-hearing-detailed the NIK test that was conducted, and the manner, in which it was conducted. Id. At re-hearing, Alt. DHO Makowski relied on DHO Estrada's finding-of SIS Contreras' account of the incident, as credible-and that the supporting documentation corroborated the incident. Id. The report also provided the reasons for the sanctions. (Doc. 13-1 at 61, Att. 6 at 5.)
On May 10, 2021, Petitioner received a copy of the DHO Report following the rehearing. (Doc. 13-1 at 63.)
The Court finds the written statements of the evidence relied on and reasons for the disciplinary sanctions are sufficient for procedural due process under Wolff, supra.
3. An Opportunity to Present Documentary Evidence
Under Wolff, an inmate must be provided an opportunity to call witnesses and present documentary evidence. 418 U.S. at 563-72. An inmate's right to call witnesses and present evidence is limited and prison officials may deny an inmate's request for additional testing. Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992) (holding that it was permissible, and legitimate penological interests existed, to deny an inmate the right to have an additional drug test performed at his own expense). Inmates do not have a right to a retest and additional tests are not required to verify NIK tests. Jackson v. Shartle, No. 4:17-CV-00526-TUC-JAS, 2019 WL 1795593, *3 (D. Ariz. March 13, 2019) (quoting Peer v. Denham, No. 15-CV-00754-GPG, 2015 WL 5579654, at *6 (D. Colo. Sept. 23, 2015); In re Davis v. Prack, 58 A.D.3d 977, 978, (N.Y.App.Div. 2009)).
Here, Petitioner was given an opportunity to call witnesses and present documentary evidence. Petitioner elected not to call witnesses at both the initial hearing and rehearing. During the initial hearing, Petitioner did not present documentary evidence, but instead alleged that NIK tests are inaccurate and incorrectly stated that Bureau policy requires all NIK tests be confirmed by a second test.
At the rehearing, Petitioner again did not present documentary evidence, instead alleging that the Bureau was required to confirm the NIK test with an outside lab. Bureau policy does not require that NIK tests be confirmed by additional tests and inmates do not have a right to a retest. At the rehearing, Petitioner also complained about how long it took to receive a response to Administrative Remedy 1051663-R1.
Petitioner now argues that this delay prevented him from presenting documentary evidence at the rehearing, because the evidence was no longer available for retesting. Regardless of the availability of the evidence, Petitioner was not entitled to a retest and additional testing is not required to verify NIK tests. Numerous courts have held that a prisoner does not have a constitutional right to an additional drug test to verify the results of an initial positive test. Koenig, supra; Zimmerlee, supra; Jackson, supra; White v. Stansil, No. 2:15-CV-0252-EFB P (TEMP), 2016 WL 4009954, at 6 (E.D. Cal. Jul. 25, 2016) (collecting cases); see also Williams v. Johnson, 16-CV-1691-JVS (JC), 2017 WL 1469980, *6 (C.D. Cal. Apr. 28, 2017) (retesting not required because petitioner did not explain how testing may have been faulty other than generally claiming sample “may have been tampered with/test may have erred. Such speculation does not equate to a substantive due process violation.”).
Petitioner was afforded the opportunity to present documentary evidence and call witnesses at both the initial hearings and rehearings but chose not to do so. The Court finds Petitioner was afforded sufficient opportunities to call witnesses and present documentary evidence for procedural due process under Wolff, supra.
4. An Impartial Fact Finder
Petitioner asserts, in pertinent part, as follows:
On March 19, 2021, the rehearing was conducted by Petitioner[']s assigned Unit Manager D. Makowski in total disregard of the Regional Directors instructions and in deliberate violation of Petitioner[']s due process rights,( e.g .),
Petitioner was not afforded the discipline process anew, he was not permitted to have the paper board game markers retested or sent off to a Central Office-approved laboratory for testing at his expense, because according to “Unit Manager D. Makowski” Pursuant to Bureau policy and procedures after the laps [ sic ] ¶ 120 days from the incident SIS is directed to purge the evidence, and although it states in the so called new DHO Hearing report that Per Administrative remedy number 1051663-R1, incident report 3420807 was reconsidered and reevaluated by the DHO, and a new DHO hearing was conducted, Unit Manager D. Makowski was not being truthful and he falsified the dates on the DHO report, [Exhibit-E] to give the appearence [ sic ] that Petitioner[']s due process rights were upheld during the discipline process.(Doc. 1-2 at 6.) Petitioner further asserts, in pertinent part,
The Official Certifide [sic] DHO ‘Ms. A. Estrada' who had made the Original disciplinary decision at the first DHO hearing was replaced by the Warden with Petitioner's assigned “Unit Manager” Mr. D. Makowski who was significantly involve in the actual incident report going forward to his Unit Disciplinary Committee (“UDC”). The Unit Manager oversees the UDC and reviews all decisions made concerning ‘disciplinary proceedings'. See, BOP Program Statement § 5270.09. So there is an obvious conflict of interest and the Unit Manager's actions conflict with the requirements under Wolffe [sic]. Where the Supreme Court has held: “[D]ue process is satisfied as long as no member of the disciplinary board has been involved in the investigation or prosecution of the particular case, or has any other form of personal involvement in the case.” Wolffe [sic], 418 U.S. at 592 (Marshall,
J., concurring). See also . . .
It is evident that Unit Manager Mr. D. Makowski, does not meet any of these qualifications to sit in as acting DHO at Petitioners rehearing when, his Job title is Petitioners “Unit Manager[.]”
(Doc. 1-2 at 8-9.)
Respondent asserts “[t]he 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).” (Doc. 10 at 12.) Respondent asserts, “[n]either DHO Estrada nor Alternate DHO Makowski were significantly involved in the incident. The incident in question did not involve a victim[,]” and cites to the Estrada Decl. in support thereof. (Doc. 10 at 12.) (see also Doc. 13-1 at 3, Ex. A at 2, ¶¶ 4, 20.) SIS Contreras was the witness, issuing the incident report and performing the NIK testing. (Doc. 13-1 at 64.) Lieutenant Patterson served as the investigator. (Doc. 13-1 at 66.) DHO Estrada and Alternate DHO Makowski performed the DHO hearings. (Doc. 13-1 at 38, 63.) Respondent asserts DHO Estrada and Alternate DHO Makowski were impartial decision makers.
Under Wolff, an inmate must be provided an impartial decision maker. 418 U.S. at 563-72. “An impartial hearing board has been required, to the extent that a member of the board may not participate in a case as an investigating or reviewing officer, or be a witness[.]” Wolff v. McDonnell, 418 U.S. 539, 572 n.20, 94 S.Ct. 2963, 2982, 41 L.Ed.2d 935 (1974) citing Braxton v. Carlson, 483 F.2d 933 (3d Cir. 1973) (“He had no personal involvement with any of the appellants because of their alleged infractions. He was neither a witness nor an investigator. [He was] not a committee member”; found not partial); cf. U.S. ex rel. Miller v. Twomey, 479 F.2d 701, 716 (7th Cir. 1973) (“the factual determination must be made by a person or persons other than the officer who reported the infraction” and “it appears that officers who reported his violations participated in the recommendation that good time be revoked” [ ] “this is not due process”).
Despite Petitioner's allegation-that because Alt. DHO Makowski is his Unit Manager, Makowski cannot therefore preside over the DHO re-hearing, impartially-the Court finds that Alt. DHO Makowski: 1) did not participate in the UDC hearing, or UDC re-hearing; 2) did not appear as a witness or investigator; 3) did not participate as a committee member; and 4) did not participate in the recommendation that Rodriguez's good time credits be revoked. Alt. DHO Makowski's involvement was limited to holding the DHO Hearing for Incident Report Number 3385342 which has since been expunged. In either case, Incident Report No. 3385342, and or Incident Report No. 3420807, Mr. Makowski had no personal involvement with Rodriguez because of the alleged infraction.
The Court finds Petitioner was afforded an impartial fact finder under Wolff, supra.
The Court further finds that Petitioner was afforded sufficient procedural due process under Wolff for disciplinary sanctions revoking good time credits.
Having consider the procedural due process requirements under Wolff, supra, the Court turns to “whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Superintendent, Mass. Corrections Inst. v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985).
C. The DHO Decision on Re-hearing Meets the Evidentiary Standard
The “some evidence” standard is a low threshold and should only be overturned if no reasonable adjudicator could have found the inmate guilty of the offense on the basis of the evidence presented. Henderson, 13 F.3d at 1077. According to Federal Bureau of Prisons Program Statement 5270.09, CN-1, in pertinent part:
The phrase “some facts” refers to facts indicating the inmate committed the prohibited act. The phrase “greater weight of the evidence” refers to the strength of the evidence, not to its quantity or to the number of witnesses testifying.
The DHO may consider negative information (e.g., known peddler of contraband) as part of the fact-finding process. Negative information may be used to draw an adverse inference against the inmate. However, negative information alone may not be used to support a finding that an inmate committed a prohibited act.PS 5270.09, CN 1.
Petitioner submits Alt. DHO Makowski “never took any kind of a position whatsoever but instead piggy backed off of the Original Findings that were made, by DHO Ms. A. Estrada at the First DHO Hearing[,]” and cites to Fox v. Coughline, for the premise that “the burden is not upon the inmate to prove the officials conduct was arbitrary and capricious, but rather upon the official to prove the rationality of his or her position.” 893 F.2d 475, 478 (2d Cir.1990) citing Ponte v. Real, 471 U.S. at 497, 105 S.Ct. at 2196). (Doc. 1-2 at 11.) Petitioner further submits that “[b]ecause there is no new evidence in the record supporting Petitioner's possession of amphetamines, under Hill, the Court should find that the disciplinary proceeding s violated Petitioner's right to due process[.]” (Doc. 1-2 at 1415.)
Respondent submits the “some evidence” standard is met because: 1) both DHO Estrada and Alt. DHO Makowski relied on the incident report in finding Petitioner guilty; 2) the incident report detailed SIS Technician Contreras' observations, including the location of the paper-like substance and the manner by which the substance was tested for the presence of amphetamines; 3) the report also included photos of the paper in question; 4) the associated NIK testing; 5) the photos of the NIK testing show the color changes indicating a positive finding of amphetamines; and 6) the incident report included Petitioner's statements, wherein he admitted ownership of the paper. (Doc. 10 at 12.)
Respondent further submits Petitioner did not offer any contrary evidence during the DHO hearing or re-hearing. Petitioner only stated that NIK tests were unreliable and demanded additional testing to confirm the test results.
The Court agrees with Respondent that Petitioner's attempt to attack the test reliability is insufficient to overturn the DHO conviction. As discussed herein, in Section 3 regarding documentary evidence “numerous courts have held that a prisoner does not have a constitutional right to an additional drug test to verify the results of an initial positive test.” Koenig, supra; Zimmerlee, supra; Jackson, supra; see also Steffey v. Salazar, 2020 WL 2530084, *4 (D. Ore. Feb. 25, 2020) citing White, 2014 WL 4009954, *6 (independent confirmatory testing could, at best, be used to attack the accuracy of the prison's drug testing procedures and would not necessarily discount the fact that “some evidence” support the conclusion of the disciplinary board.”). The court in Steffey, supra, found, in pertinent part, “[d] espite Petitioner's contention that the NIK test was not reliable, this Court finds some evidence in the record to support [DHO's] finding that Petitioner committed the prohibited act[.]” 2020 WL 2530084, *4. The DHO in the Steffey case, relied on, inter alia, photographs documenting the appearance of papers in question, evidence of the testing process, staff memoranda, and positive test results. Id.
The Court finds DHO Estrada's and Alt. DHO Makowski's reliance on SIS
Contreras' Incident Report No. 3420807 which includes photographs documenting the appearance of the papers in question, positive test results of the suspect paper, and Petitioner's acknowledgment that he uses the paper strips ‘as markers when they play board games'; provides the basis for the “some evidence” standard under Hill.
Consequently, the “some evidence” standard is met and the Petition should be dismissed.
VI. CONCLUSION
In light of the foregoing, the Court finds that the due process requirements as delineated by Wolff were met in this case. Additionally, the Court finds DHO Estrada's and Alt. DHO Makowski's findings were supported by “some evidence” as required by Hill. Therefore, the Petitioner's Petition (Doc. 1) shall be denied.
VII. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DISMISSING Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody, as Petitioner was afforded due process under the Wolff factors and the hearing and rehearing establishes some evidence of Petitioner's guilt.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), 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 Judge. If objections are filed, the parties should use the following case number:
CV-22-00518-TUC-JAS
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.