Opinion
CV-22-00498-TUC-JCH (LCK)
01-18-2024
Ernesto Zaragosa-Solis, Petitioner, v. M. Gutierrez, Respondent.
REPORT AND RECOMMENDATION
HONORABLE LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE.
Petitioner Ernesto Zaragosa-Solis, incarcerated at the United States Penitentiary in Coleman, Florida has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. LRCiv 72.2(a)(2). Before this Court are the Petition (Doc. 1), Respondent's Answer and subsequent Notice of Errata (Docs. 14, 15), Petitioner's Reply (Doc. 17), and Respondent's supplemental brief filed at the request of the Court (Docs. 80, 83). Petitioner was allowed a responsive supplemental brief but did not file one. (Doc. 80.) Petitioner also has requested to amend the Petition. (Docs. 41, 53.) Respondent objected to Petitioner amending, to which Petitioner did not reply. (Doc. 77.) The Magistrate Judge recommends the District Court, after its independent review of the record, deny amendment and deny the Petition.
Petitioner properly filed his Petition in this Court because at the time Petitioner initiated this proceeding, he was housed at USP Tucson.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was sentenced in 2015 to a 360-month sentence on his convictions for conspiracy to kidnap (18 U.S.C. §§ 1201(a)(1) & (c)) and conspiracy to use a firearm in a violent crime (18 U.S.C. §§ 924(c)(1)(A)(iii), (c)(1)(B)(ii) & (o)). (Doc. 14, Ex. A, Attach. 1 at 3-4.) Petitioner's release date is projected as November 17, 2038. (Id. at 3.)
Petitioner alleged three claims in the Petition. (Doc. 1.) Claim 1 alleged a violation of Petitioner's due process rights in a disciplinary hearing regarding Incident Report (IR) No. 3594892. (Doc. 1 at 4.) Claim 2 alleged a BOP staff member retaliated against Petitioner, by bringing the IR challenged in Claim 1 and threating him, for refusing to help "frame" another inmate. (Id. at 5.) Claim 3 alleged Petitioner reported threats from another inmate, and that inmate was notified of his report and assaulted Petitioner. (Id. at 6.) In response to the assault, Petitioner alleged he was placed in the Special Housing Unit (SHU) where he was mistreated by staff. (Id.) The Court subsequently dismissed Claims 2 and 3 because they were based on conditions of confinement, which the Court stated were not cognizable in a habeas proceeding. (Doc. 7 at 3, 4.) Petitioner filed an appeal of that decision, which has been denied for lack of jurisdiction. (Docs. 13, 84.) Petitioner subsequently filed a motion to amend the Petition, which is fully briefed.
DISCUSSION
The Court first looks at Petitioner's request to amend before reaching Claim 1 of the original Petition.
Motion to Amend
Petitioner filed a motion seeking to add one claim to his Petition. (Doc. 41.) He asked to include an allegation that his due process rights were being violated by his housing in the SHU at USP Tucson, which amounts to disciplinary segregation. Subsequently, Petitioner filed a Notice of Proposed Amendment, lodging a proposed amended petition based on his previously filed motion to amend. (Docs. 53, 54.) The proposed amendment included an amendment to Claim 1, to include a challenge to three incident reports, as opposed to just one. The proposed amendment also added two additional claims, one alleging that he has been a victim of sexual abuse and retaliation for reporting that abuse; and one alleging that his due process rights are being violated by his housing in segregation at USP Tucson. The Court evaluates the three claims set forth in the proposed amendment, which includes the claim Petitioner moved to include in his original motion to amend.
Leave to amend "shall be freely given when justice so requires." Caswell v. Calderon, 363 F.3d 832, 837 (9th Cir. 2004) (quoting Fed.R.Civ.P. 15(a)). In deciding whether to grant leave to amend, courts are guided by five factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the party previously amended its pleadings. Id. "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). "To assess futility, a court necessarily evaluates whether relief may be available on the merits of the proposed claim." Gonzales v. Ryan, No. CV-99-02016-PHX-SMM, 2014 WL 4476588, at *4 (D. Ariz. Sept. 10, 2014) (citing Caswell, 363 F.3d at 837-39).
Claim 1
Respondent opposes Petitioner's request to amend Claim 1 to include two additional incident reports on several grounds. Respondent argues that Petitioner did not exhaust his administrative remedies as to these two IRs, that he unduly delayed in bringing them before the Court, and that one of them does not implicate his due process rights. Before looking at Respondent's arguments, the Court notes that Petitioner has provided no rationale for amending Claim 1. He did not brief this request in his motion (Doc. 41), he simply included an amended version in the proposed amended pleading (Doc. 54). He also did not file a reply brief regarding his motion to amend. Therefore, the Court looks at the requested amendment of Claim 1, but with awareness that Petitioner has not attempted to demonstrate that justice dictates allowing it.
With respect to IR No. 3424286, Respondent argues there is no due process concern because Petitioner was sanctioned only with the loss of phone, visitation, and commissary privileges. (Doc. 77, Ex. A ¶ 4 & Attach. 2 at 2; Ex. B, Attach. 3 at 4.) Because sanctions in these categories do not implicate the duration of confinement, they are not cognizable in a § 2241 habeas proceeding. See Wright v. Shartle, 699 Fed.Appx. 733 (9th Cir. 2017) (finding absence of habeas jurisdiction for loss of phone, visitation, and email privileges); Everett v. Clark, 52 Fed.Appx. 959, 960 (9th Cir. 2002) (finding loss of commissary privilege and confinement in segregation not cognizable in habeas); Salazar v. von Blanckensee, No. CV-20-00352-TUC-SHR-JR, 2022 WL 17096202, at *3 (Sept. 30, 2022), report and recommendation adopted sub nom. Salazar v. Blanckensee, 2022 WL 17091889 (D. Ariz. Nov. 21, 2022) (denying habeas relief for loss of privileges unrelated to duration of confinement). A claim based on IR No. 3424286 is not cognizable in a § 2241 habeas proceeding; therefore, amendment to it include it would be futile.
Next, Respondents contend Petitioner failed to exhaust administrative remedies for both IRs that he seeks to add to Claim 1. The Court examines exhaustion only as to IR No. 2941579, because a claim based on IR No. 3424286 is not cognizable. Typically, the Court requires an inmate to exhaust all available administrative remedies before it agrees to reach the merits of a 28 U.S.C. § 2241 claim. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). The administrative exhaustion requirement serves several purposes, including protecting an administrative agency's authority by promoting respect for the agency's procedures and by affording it the opportunity to correct its own mistakes before being hailed into court. Woodford v. Ngo, 548 U.S. 81, 89 (2006). The requirement also promotes efficiency by advocating a process that is quicker and more economical than resolution in federal court. Id. Finally, should the matter ultimately reach the court, the exhaustion requirement facilitates the "preparation of a useful record." Jones v. Bock, 549 U.S. 199, 219 (2007). However, exhaustion of administrative remedies is not a jurisdictional requirement of a §2241 claim. Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). The Court can waive the exhaustion requirement if exhausting administrative remedies would be futile, inadequate, void, or would cause irreparable injury. Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004).
With respect to IR No. 2941579, Petitioner stated that no administrative remedies were available. (Doc. 54 at 4.) However, Petitioner pursued an administrative remedy as to this IR. (Doc. 14, Ex. B, Attach. 3 at 2.) It appears to have been rejected as untimely, and Petitioner did not appeal that decision to the next administrative level as required to exhaust. (Id.; Doc. 14, Ex. B ¶¶ 4, 7.) Thus, Petitioner had an administrative remedy available as to this IR but did not properly exhaust those remedies. Because Petitioner has not demonstrated that the available administrative remedies were futile, inadequate, void, or harmful, there is no basis to waive the exhaustion requirement. Because a claim based on IR No. 2941579 is subject to dismissal for lack of exhaustion, amendment to include it in Claim 1 is futile.
As discussed below, Petitioner asserted that he did not have an administrative remedy available when housed at USP Tucson. (Doc. 1 at 4.) Those arguments are not transferable to IR No. 2941579, which occurred when he was housed at FCI Talladega.
Finally, Respondent contends Petitioner unduly delayed in seeking to include these two additional IRs in the Complaint. Petitioner could have included them in the original Petition as both of the IRs were issued prior to Petitioner initiating this § 2241 proceeding. Instead, Claim 1 as alleged in the original Petition is fully briefed, and the Court is ready to address the claim now. Petitioner has not offered any explanation for his delay in raising these claims to the Court. Thus, to require additional briefing as to these other IRs would unduly delay the proceeding without justification. Based on undue delay and futility, the Court finds amendment as to Claim 1 is not warranted.
Claims 2 and 3
In proposed Claim 2, Petitioner alleges he was the victim of an attempted sexual assault in 2020 and of a violent sexual assault in 2022. After the 2022 assault, Petitioner alleges Respondent punished him in retaliation. He alleges he has been held unlawfully in the SHU under disciplinary segregation since the attack. In proposed Claim 3, Petitioner alleges he has a liberty interest in avoiding maximum security and this due process right has been violated by his housing in the SHU.
Claim 3 of the original Petition alleged that Petitioner was subjected to sexual assault in 2022 and housed in the SHU as a result, in violation of his constitutional rights. (Doc. 1 at 6.) The Court dismissed that claim because it had to do with "Petitioner's conditions of confinement, which are not cognizable in a federal habeas corpus proceeding." See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (finding a civil rights action is the proper method for challenging conditions of confinement) (citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973))." (Doc. 7 at 3.) Proposed Claims 2 and 3 are not cognizable in this proceeding because they similarly challenge Petitioner's conditions of confinement. For that reason, allowing amendment to add these allegations would be futile.
Further, since the filing of the motion to amend and proposed amended pleading, Petitioner has been transferred out of the SHU at USP Tucson to USP Coleman in Florida. For that reason, Respondent argues that proposed Claims 2 and 3 are moot and amendment would be futile. Petitioner has not disputed this assertion. Because these claims seek relief from the SHU or other conditions at USP Tucson, they became moot upon his transfer to a different facility, and the Court lacks jurisdiction over them. See Pinson v. Carvajal, 69 F.4th 1059, 1062-63, 1065 (9th Cir. 2023) (finding an absence of jurisdiction because petitioner sought release from custody due to conditions at a particular prison from which she had been transferred). For this additional reason, amendment to add these proposed allegations would be futile.
Analysis of Claim 1 of the Original Petition
Petitioner alleges that his right to due process was violated because there is no factual basis for IR No. 3594892, the Detention Hearing Officer (DHO) would not provide him names of possible witnesses (other inmates that were in the area), and the DHO refused to review video of the incident. Respondent contends that Petitioner failed to exhaust his administrative remedies as to this claim and that the claim is without merit.
Factual Background
On February 10, 2022, a BOP staff member completed IR No. 3594892 identifying Disruptive Conduct (Code 299), most like engaging in sexual acts (Code 205). (Doc. 14, Ex. A, Attach. 3 at 6.) The staff member described seeing Petitioner kissing another inmate, with their hands under a table near one another's groin area. (Id.) The IR was delivered to Petitioner that day. (Id. at 6, 8.) Lieutenant J. Woodbey investigated that day and documented that Petitioner offered no comment and requested no witnesses for the investigation. (Id. at 8.) At the committee level, Petitioner offered no comment. (Id. at 7.)
The IR was referred to a DHO. (Id. at 7.) On February 13, Petitioner was notified there would be a hearing and he was given a copy of his rights for the hearing. (Id. at 910.) He signed a form stating that he did not wish to have a staff representative or witnesses at the hearing. (Id. at 9.) After a March 1 hearing, the DHO documented that Petitioner neither admitted nor denied the charges and stated, "I mean, we did the kissing, but I would never disrespect her like that." (Id. at 2.) The DHO reviewed Petitioner's rights with him, confirmed he had received a copy of the IR, and documented that Petitioner waived his right to a staff representative and witnesses. (Id. at 2-3.) The DHO determined Petitioner committed the prohibited act of conduct that disrupts or interferes with the security or orderly running of the institution (Code 299), most like engaging in sexual acts (Code 205). (Id. at 4.) The DHO's finding was based on the staff member's description of the incident and Petitioner's partial admission of culpability (Id.) The DHO sanctioned Petitioner with the loss of 27 days Good Conduct Time (GCT), placement in disciplinary segregation for 7 days, and lost telephone and visiting privileges for 90 days. (Id. at 4.) The DHO's report was completed on March 31, 2022. (Id. at 5.) The record indicates the DHO's report was provided to Petitioner, and he was advised of his right to appeal. (Id.)
Exhaustion
Petitioner alleged that he did not exhaust administrative remedies because he was denied the necessary form by prison staff to appeal the DHO's decision, and he was threatened with retaliation. (Doc. 1 at 4.) Respondent counters this assertion with a December 2022 affidavit by Yahidra Flores stating that she was Petitioner's assigned counselor and never refused to provide these forms to him and Petitioner's cellmate submits administrative remedy forms regularly. (Doc. 14, Ex. C.) Petitioner countered with a declaration stating that Yahidra Flores was not his counselor in May 2022. (Doc. 17, Ex. 1 ¶ 6.) He further stated that his repeated requests for an appeal form, BP-10, to his counselor at that time, Daniel Flores, and Warden Damon Colbert were denied. (Id. ¶¶ 8-10.) In light of this factual issue regarding the availability of the administrative remedy process to Petitioner in May 2022, the Court will reach the merits of Petitioner's claim. See Ward, 678 F.3d at 1045; Laing, 370 F.3d at 1000.
Merits Analysis
An inmate may obtain relief under § 2241 for loss of good conduct time if the prison disciplinary proceeding did not comply with due process. Lane v. Salazar, 911 F.3d 942, 950-51 (9th Cir. 2018); Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), overruled on other grounds by Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc). At a disciplinary hearing, due process requires that the inmate: (1) receive written notice of the infraction(s) at least 24 hours before the disciplinary hearing; (2) has a right to call witnesses and present documentary evidence unless it would be unduly hazardous to institutional safety or correctional goals; (3) is entitled to assistance in preparing and presenting a defense to the disciplinary charge; (4) is entitled to a copy of the disciplinary findings; and (5) has a right to have a sufficiently impartial decision maker. Wolff v. McDonnell, 418 U.S. 539, 563-571 (1974). To comport with due process, a disciplinary decision must be supported by "some evidence" in the record. Superintendent Mass. Corr. Inst. v. Hill, 472 U.S. 445, 445-56 (1985) ("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.") Petitioner contends that the BOP violated the second Wolff requirement and there was not sufficient evidence to support the DHO's decision. (Doc. 1 at 4.) In his Reply, he also alleges that he did not receive the DHO findings. (Doc. 17 at 1 & Ex. 1 ¶ 5.) Petitioner did not challenge Wolff requirements one, three, or five. After review of the record, it appears to the Court that the BOP complied with these requirements.
In contrast to Petitioner's averment that he did not receive the DHO's findings until they were filed in this Court, the written record indicates Petitioner was served with the DHO decision on May 5, 2022. (Doc. 14, Ex. A, Attach. 3 at 5.) Further, there is no evidence that the alleged delay in receiving the findings impaired any of Petitioner's rights. Although Petitioner did not file an administrate appeal, which would require receipt of the DHO's decision, this Court did not bar this claim on that basis. Additionally, Petitioner's alleged lack of receipt of the DHO's decision did not impede his ability to challenge the IR in this Court. For these reasons, the Court finds Petitioner's due process rights were not violated by a failure to timely receive the DHO's findings.
The Court next examines Petitioner's right to call witnesses. At the time Petitioner was notified of the hearing before a DHO, he acknowledged by signature that he received a copy of his rights at the hearing, including the right to call witnesses. (Doc. 14, Ex. A, Attach. 3 at 10.) That same day, February 13, 2022, he signed a form stating that he did not wish to call witnesses at the hearing. (Id. at 9.) The DHO documented on her report that she confirmed Petitioner did not want to call any witnesses and waived that right. (Id. at 3.)
Petitioner contested Respondent's assertions by stating that he was unable to identify witnesses while held in the SHU. (Doc. 17, Ex. 1 ¶ 3.) Further, he averred that his requests to view the video prior to the hearing, to identify witnesses, were denied. And the DHO also denied review of the video for the purpose of identifying witnesses or evaluating the truth of the charge. (Id. ¶ 4.) Although Petitioner asserts that he was thwarted by staff and the DHO in identifying witnesses, he has not disputed his signature verifying a waiver of his right to call witnesses. Investigator J. Woodbey documented that Petitioner offered no comment during the investigation and requested no witnesses at that time. (Doc. 14, Ex. B, Attach. 2 at 8.) Three days later, with time to consider the circumstances, Petitioner waived his right to call witnesses at the hearing. (Doc. 14, Ex. B, Attach. 2 at 9.) Based on the evidence before the Court, Petitioner has not demonstrated that he was denied the right to call witnesses.
In the Petition, Petitioner identified the other inmate alleged to have been involved in the charged conduct. (Doc. 1 at 4.) That inmate was the person with the most relevant knowledge regarding his conduct, and Petitioner chose not to rely upon that inmate as a witness.
As his primary issue, Petitioner alleged that he was denied the right to present documentary evidence. Specifically, that he requested the DHO to review video of the charged incident and the request was denied. Petitioner submitted a declaration in which he averred that his requests for himself or a staff member to review video of the incident were ignored, and the DHO informed him that video was not documentary evidence and she did not need to consider it. (Doc. 17, Ex. 1 ¶ 4.) In her report, the DHO stated that Petitioner "had no documentary evidence to submit." (Doc. 14, Ex. A, Attach. 3 at 2.) In this proceeding, the DHO submitted a declaration in which she attested that Petitioner waived his right to present documentary evidence. (Id., Ex. A ¶ 10.) The DHO did not indicate in her original declaration or written report that Petitioner requested review of video evidence. In a supplemental declaration, provided at the request of the Court, the DHO averred that Petitioner made no request for her to review video of the incident. (Doc. 83, Ex. D ¶¶ 4, 10) She also attested that Petitioner could have had a staff representative review video for the hearing; however, he waived the right to a staff representative. (Id. ¶¶ 5, 9.)
The Court requested supplemental briefing because the Answer and the DHO's original declaration failed to respond to Petitioner's allegation that the DHO refused to review potentially relevant video. (Doc. 80.)
Petitioner's and Respondent's declarations are in direct dispute over whether Petitioner requested the DHO to review video of the incident. However, a few factors undermine Petitioner's position. First, Petitioner argues the video was critical to allow him to identify witnesses to the incident, but he stated his intent not to call witnesses at the initial investigation and again when notified of the hearing. If he believed there was video that would have allowed him to identify witnesses, it does not make sense that he did not preserve his right to call witnesses. Second, the written record documents that he declined his right to have a staff representative at the hearing; a finding, he has not challenged before the Court. Despite declining a representative, Petitioner stated that he asked unidentified staff members to review video prior to the hearing. If Petitioner believed there was critical video evidence and prison staff was not responsive to his requests for review of that evidence, he should have requested a staff representative to conduct that review. He chose not to do so. Finally, the entire written record from initial investigation through the DHO's report documented that Petitioner made no comment about video evidence (Doc. 14, Ex. A, Attach. 3). See Doly v. Copenhaver, No. 1:14-CV-00522-LJO-MJ, 2015 WL 574193, at *4 (E.D. Cal. Feb. 10, 2015) (relying on the written record to reject the petitioner's assertion that he requested prison video surveillance evidence to prove his innocence), subsequently affd, 624 Fed.Appx. 548 (9th Cir. 2015). Upon consideration of all the evidence, Petitioner has not demonstrated that he was denied the right to present documentary evidence at the hearing.
As a final matter, to comport with due process, the DHO's findings must be supported by some evidence in the record. The Hill standard is minimal and precludes an independent assessment of the credibility of witnesses or even a weighing of the evidence. Cato v. Rushen, 824 F.2d 703, 704 (9th Cir. 1987). The "some evidence" standard requires us to ask if there is "any evidence in the record that could support the conclusion reached by the disciplinary board." Id. (quoting Hill, 472 U.S. at 455-56).
Petitioner was charged with conduct that disrupts or interferes with the security or orderly running of the institution (Code 299), most like engaging in sexual acts (Code 205). A BOP staff member documented that he witnessed Petitioner kissing another inmate while his hands were in the area of the other inmate's groin. The DHO documented that Petitioner admitted to kissing the inmate in question. Although Petitioner disputes that evidence before this Court (Doc. 1 at 4 (denying engaging in sex acts with the identified inmate); Doc. 17, Ex. 1 ¶1 (denying kissing or touching any inmate on the identified date)), there is some evidence in the record supporting the DHO's finding.
RECOMMENDATION
The Magistrate Judge recommends that the District Court deny Petitioner's Motion to Amend (Docs. 41, 53) and dismiss Claim 1 and the Petition on the merits.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties shall submit them under the following case number: CV-22-00498-JCH.