Opinion
CV-22-00979-PHX-ROS (MTM)
02-06-2023
Leland Sam Buckinghorse, Petitioner, v. RA Heisner, Respondent.
REPORT AND RECOMMENDATION
HONORABLE MICHAEL T. MORRISSEY, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:
Petitioner Buckinghorse has filed a Petition for a Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241. Doc. 1.
I. SUMMARY OF CONCLUSION
Petitioner asserts an Eighth Amendment violation in the loss of good-time credit and other sanctions. Although Petitioner failed to exhaust his administrative remedies, in the unusual posture of this case the Court waives the exhaustion requirement. On the merits of his Petition, Petitioner is not entitled to relief. This Court recommends the Petition be denied and dismissed with prejudice.
II. BACKGROUND
On November 2, 2015, Petitioner was sentenced to a 210-month term of imprisonment for a second-degree murder conviction in the District of Arizona. Doc. 10-1 at 2. Since November 24, 2015, Petitioner has been incarcerated at the Federal Correctional Institution in Phoenix, Arizona (“FCI Phoenix”). Id. The Petition arises from disciplinary sanctions imposed during Petitioner's incarceration. Doc. 1.
III. DISCIPLINARY PROCEEDING
A. Overview of the Disciplinary Process
The Federal Bureau of Prisons (“BOP”) is authorized to “provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States.” 18 U.S.C. § 4042 (a)(3). BOP staff is authorized to impose sanctions on inmates who commit “prohibited acts.” 28 C.F.R. § 541.1. The prohibited acts are set forth in 28 C.F.R. § 541.3 and categorized based on severity: “Low,” “Moderate,” “High,” or “Greatest.” Id. § 541.3, Table 1. Section 541.3 also sets forth the sanctions available for each category. Id. For prisoners sentenced under the Prison Litigation Reform Act (“PLRA”)-i.e., on or after April 26, 1996-loss of good-time credit is a mandatory sanction for any disciplinary violation; the amount lost depends on the severity of the violation. Id. § 541.4(a)(2), (b).
The discipline process begins when BOP staff “witness or reasonably believe” that a prisoner has committed a prohibited act. 28 C.F.R. § 541.5(a). An “incident report” documents the prohibited act(s) charged. Id. A prisoner “will ordinarily receive the incident report within 24 hours of staff becoming aware of [the prisoner's] involvement in the incident.” Id. A BOP staff member will investigate the incident and inform the prisoner of the charges and his rights, including the right to “remain silent at all stages of the discipline process.” Id. § 541.5(b)(1). The prisoner “may give an explanation of the incident, request any witnesses be interviewed, or request that other evidence be obtained and reviewed.” Id. § 541.5(b)(2).
Once the investigation is complete, a Unit Discipline Committee (“UDC”) will review the incident report. Id. § 541.7. If the prisoner is charged with a “High” or “Greatest” severity offense, the UDC will refer the incident report to a Discipline Hearing Officer (“DHO”) as a matter of course. Id. § 541.7(a)(4).
After the prisoner has received written notice of the charges, the DHO will hold a hearing during which the prisoner may make a statement and present documentary evidence. Id. § 541.8(c), (f). The prisoner may also request witnesses to testify on his behalf. Id. § 541.8(f)(3). The DHO may deny this request “if, in the DHO's discretion, [the witnesses] are not reasonably available, their presence at the hearing would jeopardize institution security, or they would present repetitive evidence.” Id.
The DHO “will consider all evidence presented during the hearing.” Id. § 541.8(f). The DHO may find the prisoner did or did not commit the prohibited act(s) charged, “and/or a similar prohibited act(s),” or refer the matter for further investigation or review. Id. § 541.8(a). If the DHO finds the prisoner committed a prohibited act(s), the DHO may impose sanctions in accordance with Section 541.3. Id. § 541.8(g). The DHO will set forth their findings and conclusions in a written report that is delivered to the prisoner. Id. § 541.8(h). The DHO's report must document: whether the prisoner was advised of his rights, the evidence relied upon, the decision, the sanction(s) imposed, and the reason(s) for the sanction(s). Id. The decision must be “based on at least some facts and, if there is conflicting evidence, on the greater weight of the evidence.” Id. § 541.8(f).
The prisoner may appeal the DHO's decision through the BOP Administrative Remedy Program. 28 C.F.R. § 541.8(i). The process begins with an appeal to the Regional Director of the region where the prisoner is located. Id. § 542.14(d)(2). The next and “final administrative appeal” is an appeal to the General Counsel. Id. § 542.15(a).
B. Petitioner's Disciplinary Proceeding
On December 4, 2019, Petitioner received Incident Report No. 3332460, charging him with possession of narcotics. Doc. 10-1 at 14. The report stated:
On 11-23-2019, at approximately 1:40 P.M., during a search of cell 192 in Pima B, assigned to inmates Buckinghorse, Leland . . . staff discovered three suspicious pieces of cardboard envelope, orange in color, with stained, white labels. The staff also discovered a stained label with an address written in blue ink. These items were located in the cell's common area, and appeared as they were soaked in a liquid (unidentified substance) and dried. The staff turned in the items to the SIS Office. On 11-24-2019 at 8:20 A.M., I tested a piece of the cardboard envelope with NIK test kit A, which resulted in a positive test for opium alkaloids (purple color). I proceeded to test the substance with test Kit U, which resulted in positive
test for amphetamine (burgundy color). I concluded with test kit K, which resulted in a positive test for heroine (green to purple). By having narcotics inside his cell, inmate Buckinghorse is in direct violation of Prohibited Act Code 113.Id. at 14. An investigating officer advised Petitioner of his rights, including the right to remain silent. Id. at 15. Upon review by the UDC, Petitioner told the UDC that “[t]hese tests are false and I want the test sent out to a lab for a correct reading. There are absolutely no drugs on that card.” Id. The UDC referred the charge to the DHO for a hearing based on the severity of the prohibited act. Id.
This report was a rewrite of a report drafted on November 24, 2019. Doc. 10-1 at 18, 2529.
On December 9, 2019, Petitioner received notice of a DHO hearing and signed an acknowledgment of rights. Id. at 11, 16-17. On December 12, 2019, the DHO held a hearing. Id. at 11. Petitioner stated the cardboard belonged to him but the substance on the card was cologne. Id.
On December 16, 2019, the DHO found Petitioner committed the charged act of possession of narcotics based on the greater weight of the evidence. Id. at 12. The DHO revoked 41 days of good-conduct time, imposed 30 days of disciplinary segregation, suspended visitation rights for two years and suspended facilities detail for one year. Id. Petitioner received the DHO written report the following day and was advised of his right to appeal pursuant to the Administrative Remedy Procedure. Id. at 13.
C. Petitioner's Administrative Remedies
On January 31, 2020, the Regional Director of the Western Regional Office received Petitioner's appeal of the DHO's decision. (Remedy No. 1005766-R1). Doc. 10-2 at 5, 8. The Regional Director rejected the appeal because it was not filed on the correct form and Petitioner attached more than one continuation page. Id. On March 31, 2020, the Regional Director received Petitioner's re-submitted appeal. (Remedy No. 1005766-R2). Id. at 5, 8.
On April 20, 2020, the Regional Director requested Petitioner re-submit the original appeal dated January 31, 2020, because the Regional Director had misplaced it. Id. at 11. Despite the Regional Director's April 20, 2020 request regarding the January 31, 2020 appeal, nine days later - on April 29, 2020 - the Regional Director accepted and denied Petitioner's appeal dated March 31, 2020. Id. at 8.
Petitioner re-submitted his appeal (Remedy No. 1005766-R3) to the Regional Director; on June 11, 2020, the Regional Director rejected that appeal as having been submitted to the wrong administrative level. Id. at 9. Petitioner appealed twice more to the Regional Director (Remedy No. 1005766-R4) and (Remedy No. 1005766-R5). Id. at 11, 16. The Regional Director rejected the appeals as having been submitted to the wrong administrative level. Id. at 5, 9-10, 15, 17.
On May 10, 2021, Petitioner ultimately filed an appeal to the General Counsel (Remedy No. 1079438-A1). The appeal was rejected as untimely. Id. at 5, 10, 18. The General Counsel determined “regional response dated [April 29, 2020], [Petitioner's] central office appeal arrived on [May 21, 2021], 387 days later.” Id. at 10. The General Counsel also rejected the appeal because Petitioner did not (1) provide a copy of the regional appeal, (2) submit the proper number of continuation pages, or (3) provide a staff memorandum explaining why the submission delay was not Petitioner's fault. Id. at 5, 10.
IV. PETITION FOR WRIT OF HABEAS CORPUS
As summarized in the Court's Service Order:
Petitioner contends it was “cruel and unusual punishment” to find him guilty of the disciplinary charge because he is actually innocent; he claims “there was no prohibited act committed by him putting cologne on a bit of cardboard as an air[ ]fresh[e]ner which, when tested by prison employees using the NIK Test Kit, produced a false positive.” He claims he has exhausted his administrative remedies by presenting this issue to the Office of General Counsel.
Doc. 5 at 1. Respondent asserts the Petition should be dismissed because Petitioner failed to exhaust administrative remedies and his due process rights were not violated. Doc 10 at 6-12. Petitioner did not file a reply.
A. Legal Standard
Habeas relief is available for a prisoner “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A challenge to the loss of good-time credit is cognizable in a § 2241 petition because the loss affects the duration of confinement. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (“Habeas corpus jurisdiction is available under 28 U.S.C. [§] 2241 for a prisoner's claims that he has been denied good time credits without due process of law.” (citing Preiser, 411 U.S. 475, 48788 (1973))), overruled on other grounds by Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus.”).
B. Requirement to Exhaust Administrative Remedies
“Federal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in federal court.” Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (“As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241.”). “[E]xhaustion requires complying with a prison's ‘critical procedural rules' and it is justified by the need to ‘impose some orderly structure on the course of its proceedings.'” Fordley v. Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021) (quoting Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)) (brackets omitted)).
This requirement “is not a ‘jurisdictional prerequisite'” and “can be waived.” Ward, 678 F.3d at 1045 (citations and brackets omitted). “Exhaustion of administrative remedies is not required where the remedies are inadequate, inefficacious, or futile, where pursuit of them would irreparably injure the plaintiff, or where the administrative proceedings themselves are void.” United Farm Workers of America v. Ariz. Agr. Emp. Rel. Bd., 669 F.2d 1249, 1253 (9th Cir.1982) (citation omitted). Exhaustion of administrative remedies is futile “where the agency's position on the question at issue appears already set, and it is very likely what the result of recourse to administrative remedies would be,” for instance, in “circumstances in which a prisoner has shown that further appeals within the prison system would be denied based on the BOP's official policy.” Blankenship v. Meeks, 2011 WL 4527408, at *3 (D. Haw. Sept. 28, 2011) (quoting Sun v. Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004)).
A court may not “address the underlying merits [of a habeas petition] without first determining the exhaustion requirement has been satisfied or properly waived.” Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004). “Although courts have discretion to waive the exhaustion requirement when it is prudentially required, this discretion is not unfettered.” Laing, 370 F.3d at 998. The Laing Court explained that a “key consideration” in whether to exercise that discretion is “whether ‘relaxation of the requirement would encourage the deliberate bypass of the administrative scheme.'” Id. (quotingMontes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)).
C. Waiver of Requirement to Exhaust Administrative Remedies
Petitioner has not exhausted his administrative remedies because his appeal to the General Counsel was rejected as untimely and not in compliance with procedural rules. See Fordley, 18 F.4th at 351 (stating exhaustion requirement requires compliance with procedural rules). However, this Court finds that waiver of the exhaustion requirement is warranted. Relaxing the exhaustion requirements here would not encourage the deliberate bypass of the administrative scheme. See Laing, 370 F.3d at 998.
On April 20, 2020, after Petitioner filed his second appeal to the Regional Director, Petitioner was told to re-submit his appeal because the Western Regional Office misplaced his appeal dated January 31, 2020. Doc. 10-2 at 11. Soon after, Petitioner's second appeal was denied on the merits. Id. at 8. Petitioner understandably resubmitted his appeal to the Regional Director a third time, only to be told he submitted the appeal to the wrong administrative level and that Petitioner “should have filed at the institution, regional office, or central office level.” Id. at 12. Petitioner submitted the appeal twice more to the Regional Director with the same result. Id. at 9-10. Ultimately, Petitioner's appeal to the General Counsel was ruled untimely. Id. at 10. Under the circumstances presented here, the Court exercises its discretion to waive the exhaustion requirement and address the merits of the Petition. See Laing, 370 F.3d at 998.
D. Petitioner is Not Entitled to Relief
Petitioner contends his Eighth Amendment right to be free of cruel and unusual punishment was violated because he is innocent of the charged disciplinary offense. Doc. 1 at 4. Because Petitioner challenges the loss of good-time credit and thus the duration of confinement, he presents a cognizable federal habeas claim. See Bostic, 884 F.2d at 1269; Muhammad, 540 U.S. at 750. He contends the substance on the cardboard was cologne that he used to create an air freshener, that the test kits yielded false positive results for narcotics, and that he was entitled to lab testing of the cardboard to verify the test kit results. Doc. 1 at 4, 10-11. In Petitioner's view, the DHO Hearing officer “erred in stating . . . that Petitioner provided no evidence,” because Petitioner testified at the DHO hearing that the substance was cologne, and because “the use of the Narcotics Identification Kit (NIK) kit A, both in past and recent studies, was known to trigger false positives even in testing household products and [over-the-counter drugs].” Id. at 10. Petitioner seeks to have his “good conduct time restored.” Id. at 11.
Petitioner is not entitled to habeas relief. The DHO relied upon the greater weight of the evidence in determining that Petitioner committed the disciplinary offense. In particular, the DHO relied on the fact that the substance on the cardboard was identified as heroine after testing with a narcotics testing kit. Doc. 10-1 at 11-12. The record therefore contains “some evidence” supporting the conclusion reached by the disciplinary board. Superintendent, Corr. Inst. v. Hill, 472 U.S. 445, 454-55 (1985). In asking the Court to rely on Petitioner's testimony to grant relief, Petitioner asks the Court to reweigh the evidence, which the Court will not do. See id. at 455.
Contrary to Petitioner's argument, due process does not guarantee a right to outside drug testing or to re-testing of positive samples. See Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992) (holding Arizona prison officials legitimately could deny a prisoner's request during disciplinary proceeding for laboratory test to confirm the results of a drug test); see also Jackson v. Shartle, 2019 WL 1795593, at *3 (D. Ariz. Mar. 13, 2019) (“Petitioner was made aware that the SIS technician tested the strips and found them positive for amphetamines, and so no additional testing was necessary.”).
Petitioner has not otherwise alleged or shown he was deprived of due process. Petitioner was notified of his rights before the DHO hearing, appeared at the hearing in front of an impartial factfinder where he had the ability to testify, present evidence and call witnesses, and he was notified in writing of the DHO's decision and findings. See Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974) (stating requirements of due process in prison disciplinary proceedings). Petitioner is therefore not entitled to relief on his claim challenging the disciplinary proceeding which resulted in the loss of good-time credit and other privileges.
V. CONCLUSION
IT IS RECOMMENDED the Petition (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENED a certificate of appealability be denied. Petitioner has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.