Opinion
CV-22-00218-TUC-RM (JR)
10-06-2022
Eric Ontiveros, Petitioner, v. D. Colbert, Respondent.
REPORT AND RECOMMENDATION
Jacqueline M. Rateau United States Magistrate Judge
Before the Court is Petitioner Eric Ontiveros's (“Petitioner”) Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody. (Doc. 1.) Pursuant to Local Rule 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Jacqueline Rateau for Report and Recommendation. (Doc. 5.) Respondent filed his Return and Answer to Petition for Writ of Habeas Corpus (28 U.S.C. § 2241). (Doc. 12.) Petitioner did not file a reply and the time for filing a reply has passed.
As more fully set forth below, the Magistrate Judge recommends that the District Court, after an independent review of the record, deny the Petition.
Unless otherwise indicated, all factual references are taken from the exhibits attached to Respondent's Return and Answer to Petition for Writ of Habeas Corpus (28 U.S.C. § 2241) (Doc. 12).
Petitioner is currently serving a 120-month term of imprisonment in the Bureau of Prisons (“BOP”) at the United States Penitentiary in Tucson, Arizona (“USP Tucson”) for possession with intent to distribute 50 grams and more of a mixture or substance containing methamphetamine and for being a felon in possession of a firearm. (Doc. 12-2 at p. 3, ¶ 6.) Petitioner is projected to be released from BOP custody on April 12, 2025. Id.
Petitioner challenges a disciplinary violation for Incident Report (“IR”) No. 3278486 that resulted in, inter alia, the loss of 41 days' good conduct time. (Doc. 1.) Petitioner asserts three grounds for relief. In Ground One, he contends that his Fourteenth Amendment Due Process rights were violated because he “was not given proper notice of his disciplinary charges.” Id. at 4. In Ground Two, he claims that his Fourteenth Amendment Due Process rights were violated because he “did not receive a statement of the evidence relied upon by prison officials and the reasons for disciplinary actions.” Id. at 7. In Ground Three, he “reiterates the issues outlined in the Regional Administrative Remedy,” and claims that his due process rights were violated because IR No. 3278486 was rewritten and BOP policy does not allow for an IR to be rewritten. Id. at 8. He seeks an order expunging IR No. 3278486 and reinstatement of 41 days of good conduct time. (Doc. 1 at 9.)
Petitioner is in federal custody and thus this matter implicates the Fifth Amendment, not the Fourteenth Amendment. See U.S. Const. Amend. XIV (prohibiting deprivations by “State”); Lugar v. Edmondson Oil Co. Inc., 457 U.S. 922, 923- 24 (1982) (Fourteenth Amendment applies to state action); Dezell v. Day Island Yacht Club, 796 F.2d 324, 326 (9th Cir. 1986) (dismissing Fourteenth Amendment for lack of state action). This Court proceeds as if Petitioner had alleged accordingly.
IR No. 3278486
On July 7, 2019, while conducting a random cell search, Corrections Officer Sarah Gaumer (“CO Gaumer”) found a folded piece of paper with bright yellow stripes in Petitioner's plastic ID holder. (Doc. 12-2 at p. 4, ¶ 8.) Petitioner's plastic ID holder was found in his cell on top of his assigned locker. Id. Joe Espinoza, SIS Technician, NIKtested the paper found in Petitioner's ID holder and it tested positive for narcotics. Id.
NIK kits rapidly screen and presumptively identify substances suspected of being illegal drugs through chemical colorimetric tests. (Doc. 12-2 at p. 4, n. 4)
Based on the results of the NIK testing, CO Gaumer wrote IR No. 3278486 charging Petitioner with possession of drugs/alcohol (Code 113). Id. at ¶ 8. On July 13, 2019, Petitioner received a copy of IR No. 3278486. Id. at p. 4, ¶ 9. Petitioner was advised of his rights regarding the disciplinary process and was given the opportunity to make a statement to the investigating lieutenant. Id. at p. 5, ¶ 9. Petitioner did not make a statement. Id. The investigating lieutenant referred the matter to the Unit Disciplinary Committee (“UDC”) for further processing. Id.
On July 17, 2019, the UDC conducted a hearing on IR No. 3278486. Id. at ¶ 10. During the UDC hearing, Petitioner stated “not guilty.” Id. The matter was referred to the Disciplinary Hearing Officer (“DHO”) for further consideration with Petitioner being provided a copy of the Notice of Discipline Hearing and a written notice of his rights before the DHO. Id.
On August 1, 2019, DHO Antonietta Estrada (“DHO Estrada”) conducted the DHO hearing on IR No. 3278486. (Doc. 12-2 at p. 5, ¶ 11.) Petitioner was present during the DHO hearing and waived his right to a staff representative. Id. He also elected not to call any witnesses. Id. After being advised of the charges in the IR, Petitioner neither admitted nor denied the charges and did not make a statement in his defense. Id. DHO Estrada considered the factual information contained in IR 3278486, photographs of the folded paper and NIK kits used to test the paper, as well as staff memoranda and found that Petitioner committed the prohibited act of the possession of drugs/alcohol (Code 113). Id. at ¶¶ 12-13. Petitioner was sanctioned with 41 days loss of good conduct time, 7 days disciplinary segregation, 180 days loss of social telephone privileges, and 180 days loss of social visitation privileges. Id. at ¶ 13.
On September 9, 2019, Petitioner was provided with a copy of the DHO report, which included all of DHO Estrada's written findings and conclusions. Id. at ¶ 14. He was advised of his right to appeal DHO Estrada's findings and conclusions within 20 days through the Administrative Remedy Program. Id. at pp. 5-6, ¶ 14.
On September 18, 2019, Petitioner submitted Regional Administrative Remedy Appeal 1000503-R1 to the Western Regional Director. Id. at p. 6, ¶ 15. Petitioner argued that the ID holder was not in his possession because it was on top of a locker and it was not established that the locker was his. Id. Petitioner also alleged that “various members from other races were trying to plant weapons, or other contraband on him so they could acquire [his] cell.” Id. Petitioner requested that IR No. 3278486 be expunged from his record and his privileges be restored. Id.
On January 28, 2020, Western Regional Director Gene Beasley (“Director Beasley”), issued a memorandum stating that he found some concern with the disciplinary process. (Doc. 12-2 at p. 6, ¶ 16.) Director Beasley noted that the IR did not detail that NIK test produced a color change from purple to burgundy, indicating Opium Alkaloids, or a color change from blue to gray, indicating Morphine. Id. Director Beasley requested that the matter be remanded and the IR rewritten to address these concerns. Id. Director Beasley stated that, if the evidentiary concerns could not be addressed during reprocessing, “consideration should be given to expungement by DHO.” Id. On January 28, 2020, Director Beasley informed Petitioner of his action and notified him of his right to appeal the decision to the BOP Central Office. Id.; Doc. 1-1 at 6.
Re-Written IR No. 3278486
On February 10, 2020, CO Gaumer rewrote IR No. 3278486. (Doc. 12-2 at p. 6, ¶ 17.) CO Gaumer detailed that the paper was “NIK tested with Marquis Reagent A resulting in a purple color for possible Opium Alkaloids.” Id. SIS Technician Espinoza “then tested the paper with NIK test U per Polytesting System, which resulted in an immediate color change to burgundy.” Id. SIS Technician Espinoza then performed NIK test K “per Polytesting System and had an immediate color change blue-green to a gray color, indicating Morphine.” Id. at p. 7, ¶ 17.
On February 10, 2020, Petitioner was provided a copy of rewritten IR No. 3278486. Id. That same day, Petitioner was advised of his rights regarding the disciplinary process and was given the opportunity to make a statement to the investigating lieutenant. Id. Petitioner declined to make a statement. Id. The matter was referred to the UDC for further processing. (Doc. 12-2 at p. 7, ¶ 18.)
On February 12, 2020, the UDC conducted a hearing of rewritten IR No. 3278486. Id. That same day, Petitioner was provided a copy of the Notice of Discipline Hearing before the DHO and a written notice of his rights before the DHO, which he signed. Id. Petitioner is recorded as stating during the hearing, “not guilty.” Id. Rewritten IR No. 3278486 was referred to the DHO for further consideration. Id.
On March 3, 2020, DHO Estrada conducted a DHO hearing on rewritten IR No. 3278486. Id. at ¶ 19. Petitioner was present during the DHO hearing and waived his right to a staff representative. Id. Petitioner did not call any witnesses. Id. Petitioner was advised of the charges in the rewritten IR and is recorded as stating “it ain't mine.” Id. DHO Estrada considered photographs of the folded paper and NIK test used to test the paper, as well as staff memoranda. Id. at ¶ 20.
DHO Estrada found that Petitioner committed the prohibited act of the possession of drugs/alcohol (Code 113). Id. at ¶ 21. DHO Estrada stated that the folded paper tested positive for morphine and that this paper was found in Petitioner's ID holder. Id. DHO Estrada also stated that Petitioner did not offer evidence disputing the outcome of the NIK test, other than denying that the folder paper was his. Id. at pp. 7-8, ¶ 21. As a result of the finding of guilt associated with the Code 113 violation, all original sanctions issued in the original IR stood. Id. at p. 8, ¶ 22.
On May 15, 2020 at 9:00 a.m., Petitioner was provided a copy of the DHO Report, which included all of DHO Estrada's written findings and conclusions. Id. at ¶ 23; Doc. 12-3 at p. 3, ¶ 5. DHO Secretary Bryan Nicholson printed his name and signed the DHO Report upon delivery. (Doc. 12-3 at p. 3, ¶ 5.) The DHO Report advised Petitioner of his right to appeal the DHO's findings and conclusions within 20 days through the Administrative Remedy Program. (Doc. 12-2 at p. 8, ¶ 23.)
Administrative Appeals Related to IR No. 3278486
Relevant here, on December 13, 2019, Petitioner submitted Remedy No. 1000503-R1 to the BOP Western Regional Office, appealing the disciplinary hearing on August 1, 2019, and the subsequent DHO decision on the original IR No. 3278486. (Doc. 12-4 at p. 6, ¶ 14.) On January 28, 2020, Director Beasley provided an explanation to Petitioner that he was “requesting staff rewrite the incident report and process it anew.” Id. Remedy No. 1000503-R1 was closed, with no appeal to the Central Office by Petitioner. Id.
On June 3, 2022, Petitioner submitted Remedy No. 1122410-R1 to the Bureau's Western Regional Office, appealing the disciplinary hearing and DHO decision related to the rewritten IR No. 3278486. Id. at ¶ 16. As of the date of Respondent's answer, no determination had been made on Remedy No. 1122410-R1. Id.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
BOP Administrative Remedy Program
BOP operates an Administrative Remedy Program designed to allow inmates to seek formal review of issues relating to any aspect of their confinement, including disciplinary hearings and any disciplinary sanctions. 28 C.F.R. §§ 542.10 & 542.14(d)(2). An inmate must first attempt to informally resolve the matter with unit staff using form BP-8. 28 C.F.R. § 542.13(a). If the matter is not resolved informally, the inmate may, within 20 days after occurrence of the basis for the request, submit an Administrative Remedy Request to the Warden using form BP-9. 28 C.F.R. § 542.14(a). If the inmate is not satisfied with the Warden's response, he may, within 20 days after the Warden's response, submit an appeal to the Regional Director's Office using form BP-10. 28 C.F.R. § 542.15. Finally, if the inmate is not satisfied with the Regional Director's response, he may, within 30 days after the Regional Director's response, submit an appeal to the General Counsel's Office using form BP-11. Id.
Only after the General Counsel's Office has denied a BP-11 or the inmate has not received a response to the BP-11 within 40 calendar days or, if extended, 60 calendar days is the administrative remedy process deemed completed and matter ripe for filing a lawsuit. 28 C.F.R. § 542.18. When appealing disciplinary sanctions imposed by a DHO, the inmate may submit an appeal directly to the Regional Director (BP-10), with a subsequent, final appeal to the Office of General Counsel (BP-11). 28 C.F.R. §§ 542.14(d)(2) & 542.15(a). The deadlines for filing administrative remedy requests and appeals may be extended when the inmate demonstrates a valid reason for delay. 28 C.F.R. §§ 542.14(b) & 15(a). If an inmate does not receive a response from the Warden, Regional Office or Central Office within the time allotted, the inmate may consider the absence of a response to be a denial at that level and may proceed to the next step. 28 C.F.R. § 542.18.
Exhaustion as a Jurisdictional Requirement
"As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241." Long v. Baltazar, No. CV-18-00520-TUC-RM (EJM), 2020 WL 6162923, at *4 (D. Ariz. Sept. 17, 2020), report and recommendation adopted, 2020 WL 6161717 (D. Ariz. Oct. 21, 2020) (citing Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012)). "The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement." Long, 2020 WL 6162923, at *4 (quoting Brown v. Riscon, 895 F.2d 533, 535 (9th Cir. 1990)). "Nevertheless, prudential limits, like jurisdictional limits and limits on venue, are ordinarily not optional." Long, 2020 WL 6162923, at *4 (quoting Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007)) (alteration in original).
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.Long, 2020 WL 6162923, at *4 (quoting Puga, 488 F.3d at 815).
Petitioner Failed to Exhaust His Administrative Remedies
With respect to the original IR, Petitioner filed a BP-10 alleging that the contraband was not in his possession and asking that the imposed sanctions be lifted and his privileges restored. (Doc. 12-2 at p. 6, ¶ 15.) As laid out above, Director Beasley directed that the IR be rewritten but did not otherwise address Petitioner's claims with respect to the contraband and sanctions. Petitioner was notified of Director Beasley's decision and advised that he could appeal the decision to the Office of General Counsel (through the filing of a BP-11) but Petitioner never appealed. (Doc. 1-1 at 6.)
With respect to the rewritten IR, Petitioner did not file an administrative appeal regarding his due process claims alleged in Grounds One and Two of the Petition. Petitioner did file a BP-10 regarding his claim alleged Ground Three. (Doc. 1-1 at 17-19.) However, Petitioner's BP-10 was untimely having been filed on June 3, 2022, over two years after the sanctions had been imposed. Petitioner argues that he was unable to appeal the decision issued after the second DHO hearing because he was not provided a copy of the DHO Report. However, Petitioner's assertion is belied by the record which establishes that the DHO Report was provided to Petitioner by DHO Secretary Nicholson on May 15, 2020. (Doc. 12-3 at p. 3, ¶ 5.)
Petitioner also alleges that the exhaustion requirement should be relaxed due to COVID-19. (Doc. 1 at 5.) Petitioner offers no evidence establishing that COVID-19 prevented him from appealing the decision issued after second DHO hearing for nearly two years. See Id. On the other hand, Respondent has provided evidence establishing that the administrative remedy process was available during USP Tucson's modified COVID procedures. (Doc. 12-4 at p. 5, ¶ 10.)
Moreover, the regulations provide for untimely submissions in cases of justified delay and allow an inmate to proceed to the next level in the event a response is not provided within the time allotted. See 28 C.F.R. §§ 542.14(b) & 15(a). There is no evidence to support a finding that Petitioner undertook either of those actions here.
This Court finds that the administrative remedy process would have allowed the BOP to investigate Petitioner's claims, and, if warranted, correct the alleged errors. Since Petitioner has failed to complete the administrative review process, he has disallowed any of the BOP's formal administrative levels an opportunity to consider his claims. See Quinonez v. McGrew, No. 14-57013, 2016 WL 1728980, at *1 (9th Cir. Apr. 29, 2016) (affirming district court's dismissal of § 2241 petition for failure to exhaust administrative remedies where the petitioner “did not complete any level of the BOP's Administrative Remedy Program and there is no indication that his pursuit of those remedies would be futile.”).
In light of the foregoing, this Court finds that Petitioner has failed to exhaust his administrative remedies. As a result, this Court determines that the district court is without jurisdiction to consider the Petition and recommends that the Petition be dismissed on this ground.
MERITS
Alternatively, this Court finds that the disciplinary proceedings regarding IR 3278486 comported with due process and that the Petition is without merit.
Due Process Requirements for Prison Discipline Hearings
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. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). The full panoply of rights encompassed by the Due Process Clause does not apply in the prison discipline context and due process is satisfied with procedures that ensure an inmate's protected interest is not “arbitrarily abrogated.” Id. 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.
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 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 the 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. CV-18-00052-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, No. 1:14-cv-00373-LJO-MJS, 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).
Petitioner's Due Process Right Was Satisfied
24-Hours' Notice: On February 10, 2020, Incident Report No. 3278486 was rewritten, pursuant to Director Beasley's memorandum. That same day, Petitioner was provided a copy of the rewritten IR and was also advised of his rights. On February 12, 2020, the UDC conducted a hearing and Petitioner was provided a copy of the Notice of Discipline Hearing Before the DHO, which he signed. On March 3, 2020, the DHO hearing was conducted.
This Court finds that the record establishes that Petitioner was notified of the charges against him at least 24 hours in advance.
Written Statement by the Fact Finder: On February 10, 2020, Petitioner was provided a copy of the rewritten IR. On May 15, 2020, DHO Secretary Nicholson provided Petitioner a copy of the DHO Report detailing the evidence DHO Estrada relied on, which included the rewritten IR and staff memoranda. The DHO Report noted the absence of evidence offered by Petitioner, his statement “it ain't mine,” and Petitioner's waiver of his right to call witnesses. The DHO Report also stated that the sanctions imposed during the first DHO hearing would stand, and provided the reasoning for the sanctions.
This Court finds that the record establishes that Petitioner was provided a written statement as to the evidence relied on and the reasons for the disciplinary action.
Opportunity to Call Witnesses and Present Evidence: Petitioner gave a statement on his behalf at the second DHO hearing, denying that the ID holder was his. See Doc. 12-2 at 21 (the DHO Report stating, inter alia, “The DHO considered your statement during the DHO hearing, in which, you stated “it ain't mine.”). Petitioner was afforded the opportunity to call witnesses and waived this right. Id. at 20. The DHO report documents that Petitioner “had no documentary evidence to submit.” Id.
This Court finds that Petitioner was afforded the opportunity to call witness and present evidence on his behalf at the second DHO hearing.
Assistance at the Hearing and an Impartial Fact Finder: There is no evidence that Petitioner needed assistance at the hearing or that the fact finder was not impartial. This Court finds that these two factors are satisfied.
In sum, this Court determines that the applicable Wolff factors are met in this case.
Petitioner alleges that his due process right was violated when the IR was rewritten claiming that BOP policy does not permit that “incident reports be rewritten once an inmate has been sanctioned.” (Doc. 1 at 8.) Assuming that this claim is cognizable on habeas, as pointed out by Respondent, BOP Program Statement 5270.09 provides that, upon consideration of an inmate's request for administrative remedy, the reviewing official “may approve, modify, reverse, or send back with directions, including ordering a rehearing, any action of the UDC or DHO. ...” See Program Statement 5270.09 at § 541.8(i). Indeed, Director Beasley sent the IR back with instructions to address concerns related to the NIK testing. Contrary to Petitioner's assertion, sending back an IR with directions to address the reviewing official's concerns is authorized by BOP policy.
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.” See Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). Accordingly, this Court finds that Petitioner's claim that the IR was rewritten in violation of BOP policy is non-cognizable on habeas review. Nevertheless, as explained above, Petitioner's allegation concerning the BOP's authority to rewrite an IR is meritless.
In light of the foregoing, this Court determines that the record establishes that Petitioner's disciplinary proceedings resulting in the loss of 41 days' good conduct time did not violate Petitioner's due process right. Accordingly, this Court recommends that the Petition be denied on its merits.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, DENY Petitioner's Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1).
This 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 (14) days from the date of service of a copy of this recommendation to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Federal Rules of Civil Procedure 6(a) and (e), and 72(b). If objections are filed, the parties have fourteen (14) days to file a response to the objections. If objections are filed, this action should be designated as case number: CV 22-218-TUC-RM. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).