Opinion
No. CV-19-00584-TUC-RM (JR)
02-10-2021
Jeremy Pinson, Petitioner, v. Barbara von Blanckensee, Respondent.
REPORT AND RECOMMENDATION
Pending before the Court is Petitioner Jeremy Pinson's Petition for Writ of Habeas Corpus (Doc. 1) filed pursuant to 28 U.S.C. § 2241. Pinson is currently confined in the United States Penitentiary in Tucson, Arizona ("USP-Tucson"), and alleges that her rights were violated during a disciplinary hearing and requests that her Good Conduct Time credits and other privileges be restored. In accordance with the Rules of Practice of the United States District Court for the District of Arizona and 28 U.S.C. § 636(b)(1), this matter was referred to the Magistrate Judge for report and recommendation. As explained below, the Magistrate Judge recommends that the District Court, after an independent review of the record, dismiss the Petition with prejudice.
Pinson indicates in the Petition that she is transgender and, when referring to Pinson, the parties use the pronouns "she" and "her." The Court will do the same. --------
I. BACKGROUND
A. Petitioner
Pinson is currently serving an aggregate 252 month term of imprisonment for various convictions, including 18 U.S.C. § 876 , Mailing Threatening Communications; 18 U.S.C. § 1001(a)(2), False Statement; 18 U.S.C. § 876(c), Threat to a Juror; and 18 U.S.C. § 871(a), Threats Against the President. Ex A, Att. 1 (SENTRY Public Information Inmate Data). Pinson was convicted and sentenced in the Western District of Oklahoma. Id. Pinson's projected Good Conduct Time ("GCT") release date is May 23, 2026. Id.
B. Petition
In her one ground Petition (Doc. 1), Pinson alleges that her First and Fifth Amendment rights were violated in the course of the inmate discipline process. She specifically alleges that: (1) the incident report in question is false and was written in retaliation for her complaints about a prison staff member; (2) she was denied the opportunity to present exculpatory video surveillance and other documentary evidence; (3) she was denied the opportunity to present witnesses; and (4) she was wrongly sanctioned with the loss of GCT. Petition, p. 4.
II. FACTS
Petitioner alleges she was falsely charged with violating Prohibited Act Code 205, engaging in a sexual act, the day after she filed a complaint about the staff member who wrote the incident report. Petition, p. 4. On November 15, 2017, during an investigation, Pinson admitted to prison staff that she had previously been involved in a consensual sexual relationship with another inmate. Ex. A, Att. 3 (Incident Report No. 3057224), p. 1. Pinson stated that the relationship was intimate and involved penetration. Id. As a result of Pinson's conduct, Special Investigative Agent Grimsley wrote an incident report for violation of Prohibited Act Code 205, Engaging in sexual acts. Id., ¶¶ 1-13.
On November 16, 2017 at 1:15 pm., Lieutenant A. Wieczorek served a copy of the Incident Report on Pinson. Id., ¶¶ 14-16. Pinson was advised of and acknowledged understanding her rights. Id., ¶¶ 23-27. When asked for a statement about the incident, Pinson stated that "[e]verything up to the intimate part is true, but it didn't involve penetration and it didn't involve an assault due to the relationship." Id., ¶ 24. Lt. Wieczorek found the Incident Report "correct as written" and it was forwarded to the Unit Disciple Committee ("UDC") for further action. Id., ¶¶ 26. 27.
On November 21, 2017, the UDC convened to consider the Incident Report. Id., ¶¶ 17-21. Pinson's statement to the UDC regarding the incident was recorded as "there was no assault; all else is true." Id., ¶ 17. Based on the severity of the incident, the UDC made no findings and referred the Incident Report to the Discipline Hearing Officer ("DHO"). Id., ¶¶ 18-19. That same day, the UDC provided Pinson with a Notice of Discipline Hearing, before the DHO. Ex. A, Att. 4. Pinson signed the Notice and indicated that she did not wish to have a staff representative or present any witness at the hearing. Id. Pinson was also provided and signed an Inmate Rights and Discipline Hearing notice, informing her of her rights to have a written copy of the charges at least 24 hours in advance; to call witnesses; to receive written findings; and to present evidence on her behalf. Ex. A, Att. 5.
On January 26, 2018, Pinson appeared before the DHO. Ex. A, Att. 6 (Discipline Hearing Officer Report). The DHO confirmed the Pinson had received a copy of the Incident Report and was advised of her rights. Id., § I. Pinson requested Dr. Gabel and her staff representative and Dr. Gabel stated that "I did not hear any talk about penetration just kissing and oral sex. The two inmates stated they spent time together and became intimate. No concerns with the disciplinary process." Id., § II. Pinson did not request any witnesses and presented no documentary evidence. Id., §§ III, V. Pinson stated the "I never said anything about [the other inmate] assaulting me. I was not assaulted and I did not assault him. I did engage in a sexual act with [the other inmate] but it didn't involve penetration. Id., § III(B). In finding that the act was committed as charged, the DHO relied on the Incident Report and Pinson's statements and admission to committing which, "even though you both stated it was consensual and no penetration happened, kissing and oral sex between inmates is still against BOP policy and is considered engaging in a sexual act with another." Id., §§ IV, V. The DHO sanctioned Pinson by disallowing 27 days of Good Conduct Time and the loss of commissary and visiting privileges for 90 days. Id., § VI.
On February 9, 2018, the DHO gave Pinson a copy of the DHO Report containing the decision, which also advised Pinson of her right to appeal the decision to the Regional Director "within 20 calendar days under the Administrative Remedy Procedure." Id., § VIII. Pinson did not appeal the DHO's finding to the Western Regional Office or Central Office.
III. DISCUSSION
As noted above, Pinson alleges that her First, Fifth, and Eighth Amendment rights were violated because (1) the Incident Report was written in retaliation for her complaints about the urinalysis test process; (2) she was denied the opportunity to present exculpatory video surveillance and other documentary evidence; (3) she was denied the opportunity to present witnesses; (4) she was denied the opportunity to use a staff representative to collect witness statements; (5) her mental health was not evaluated as required by 28 C.F.R. § 541.6; (6) she is innocent of the charges; (7) she was denied staff assistance preparing her appeal; and (8) she was wrongly sanctioned with the loss of GCT and privileges. Respondents argue that Pinson failed to exhaust her administrative remedies and that Pinson's claims are meritless. The Court agrees.
A. Exhaustion
As a prudential matter, federal prisoners must exhaust their administrative remedies before bringing a habeas petition pursuant to § 2241. E.g., Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). "[T]he requirement of exhaustion of remedies will aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors in the course of administrative proceedings." Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Administrative exhaustion also protects an administrative agency's authority, discouraging disregard of its procedures and permitting it to correct its own errors. Woodford v. Ngo, 548 U.S. 81, 89 (2006); Ruviwat, 701 F.2d at 845. If a petitioner has not properly exhausted his claims, the district court, in its discretion, may either "excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court." Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990).
Pinson does not dispute that the Bureau of Prisons has established an Administrative Remedy Program "to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement." 28 C.F.R. § 542.10(a). Under the program, before filing a formal administrative grievance, an inmate must "first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue . . .." 28 C.F.R. § 542.13. A request for informal resolution is submitted using a BP-8 form. See Nunez v. Duncan, 591 F.3d 1217, 1219 (9th Cir. 2010). If disatisfied with the outcome, a petitioner can pursue a formal grievance by submitting a BP-9 form to the Warden, then a BP-10 form to the Regional Director and, finally, by submitting a BP-11 form to the General Counsel. 28 C.F.R. §§ 542.14(a), 542.15(a); see also Nunez, 591 F.3d at 1219 ("The BP-8 and BP-9 are linked. Both forms involve a complaint arising out of the same incident, and both forms must be submitted within 20 calendar days of the date of that incident.").
Here, the record reflects that Pinson failed to exhaust her administrative remedies. Pinson only filed one administrative remedy - an initial appeal of her DHO hearing to the North Central Region, but was told that her appeal had be filed in the region where she now resides. Ex. A, Att. 7, 8 (Administrative Remedy Generalized Retrieval record). In her Reply, Pinson claims that the rejection of her appeal "was BOP's error, not petitioner's" because she was told to file in the wrong region. Reply (Doc. 13), p. 1. However, Pinson does not identify any effort she made to file the appeal in the correct region or explain why those efforts would have been futile. Indeed, the record reflects that Pinson has filed a number of administrative remedy requests, suggesting that she is aware of the process and the steps she is required to take to exhaust any available remdies. See Ex. A, Att. 7 (listing grievances).
Although the exhaustion requirement can be excused in § 2241 cases, "it is not lightly to be disregarded." Murillo v. Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (citation omitted). A "key consideration" in exercising such discretion is whether "relaxation of the requirement would encourage the deliberate bypass of the administrative scheme[.]" Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (internal quotation marks omitted). In this case, Pinson has deliberately bypassed the administrative review process. Such action should not be encouraged. The Court finds the petition should be dismissed for lack of exhaustion.
B. Merits
Should the District Court exercise its discretion and excuse Pinson's failure to exhaust her administrative remedies, her claims nevertheless fail on the merits.
1. Due Process
Federal prisoners have a statutory right to good time credits. See 18 U.S.C. § 3624. "It is well-settled 'that an inmate's liberty interest in her earned good time credits cannot be denied without minimal safeguards afforded by the Due Process Clause of the Fourteenth Amendment.'" Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir. 1996) (quoting Taylor v. Wallace, 931 F.2d 698, 700 (10th Cir. 1991)). "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).
a. Procedural Due Process
In the procedural context, the United States Supreme Court has established five safeguards for inmates when the loss of good conduct time credits are involved: (1) an inmate must receive written notice of the infractions(s) at least 24 hours before the disciplinary hearing; (2) an inmate has a right to call witnesses unless it would be unduly hazardous to institutional safety or correctional goals; (3) an inmate is entitled to assistance in preparing and presenting a defense to the disciplinary charge; (4) an inmate is entitled to a copy of the disciplinary findings; and, (5) an inmate has a right to have a sufficiently impartial decision maker. Wolff v. McDonnell, 418 U.S. 539, 563-72.
A review of the record in this case reveals that the Wolff procedural safeguards were met. Pinson received a copy of the Incident Report on November 16, 2017, a day after the incident and well in advance of the January 26, 2018 disciplinary hearing. She received a copy of DHO Report on February 13, 2018 and told she had 20 days from receipt to file an appeal. She was advised of her rights during the investigation of the incident, Ex. A, Att. 3, ¶ 23; Att. 5. Her right to call witnesses and be represented was honored throughout the process. She just chose not to call witnesses and not to present evidence, but did request and was provided a staff representative in preparing and presenting her defense. Thus, there is no evidence that she was denied the opportunity to present exculpatory video surveillance and other documentary evidence, was denied the opportunity to present witnesses, was denied the opportunity to use a staff representative to collect witness statements, or that she was denied staff assistance preparing her appeal. Pinson received all the procedural protections to which she was entitled before she was sanctioned with the loss of 27 days of GCT.
b. Substantive Due Process
Pinson's remaining due process arguments are substantive. Because good time credits are a protected liberty interest, the decision to revoke credits must be supported by some evidence in the record. Superintendent v. Hill, 472 U.S. 445, 454 (1985). In Hill, the Supreme Court stated:
We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if "there was some evidence from which the conclusion of the administrative tribunal could be deduced . . . ." United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. [103] at 106, 47 S.Ct., [302] at 304. 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. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 260-261, 68 L.Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (C.A.8 1974).Superintendent v. Hill, 472 U.S. at 455-56. The Constitution does not require that the evidence logically preclude any conclusion other than the conclusion reached by the disciplinary board; there need only be some evidence to ensure there was some basis in fact for the decision. Superintendent v. Hill, 472 U.S. at 457.
Pinson contends she was not permitted to call exculpatory witnesses or view a video. Petition (Doc. 1), p. 4. As discussed above, however, the record establishes that she requested only staff representation and, though given the opportunity to do so, waived her right to present additional evidence. Moreover, Pinson has not explained how the video or other witnesses would have helped her case. Here, the DHO properly relied on the evidence in the Incident Report, the subsequent investigation, and statements by Pinson. See Ex. A, Att. 6, § V. This evidence, particularly Pinson's admissions, exceeds the "some evidence" standard required in prison disciplinary proceedings and establishes that the DHO did not act in an arbitrary and capricious manner in reaching his findings.
2. First Amendment
Pinson's claim that the Incident Report was written in retaliation for her complaints about the reporting staff member. Petition (Doc. 1), p. 4. "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of her First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Here, Pinson fails to state a cognizable retaliation claim because her allegations do not support an inference that the Incident Report was prompted by retaliation rather than her own acts. She offers no specific facts from which the Court could even find a colorable claim of retaliation. The Petition fails to allege the complaints she lodged about the staff member, any interaction that occurred or why she believes there was a nexus between her complaints and the Incident Report. Pinson also fails to show how the disciplinary action taken against her did not reasonably advance a legitimate correctional goal of securing the prison. As such, this claim must fail.
Additionally, the DHO conducted a disciplinary hearing and found Pinson committed the prohibited conduct charged in the Incident Report and, as discussed above, this finding was supported by more than some evidence in the record. Some courts have concluded this alone is sufficient to defeat a retaliation claim. See, e.g., O'Bryant v. Finch, 637 F.3d 1207, 1215 (11th Cir. 2011) (A "prisoner cannot maintain a retaliation claim when she is convicted of the actual behavioral violation underlying the alleged retaliatory false disciplinary report and there is evidence to sustain the conviction."); Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) ("The prison disciplinary committee found that Henderson committed an actual violation of prison rules based on Officer Baird's description of the event. Because the finding was based on some evidence of the violation, the finding essentially checkmates her retaliation claim."). While other courts disagree with this premise, see Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018) ("A finding of guilt at a prison misconduct hearing does not act as an absolute bar to a prisoner's First Amendment retaliation claim."); Watson v. Rozum, 834 F.3d 417, 426 (3d Cir. 2016) (A "plaintiff can make out a retaliation claim even though the charge against him may have been factually supported."), the finding that the DHO's decision was supported by "some evidence," coupled with the insubstantial allegations in the Petition are sufficient to defeat Pinson's retaliation claim.
IV. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, deny and dismiss Pinson's Petition for Writ of Habeas Corpus (Doc. 1).
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. If any objections are filed, this action should be designated case number: CV 19-584-TUC-RM. Failure to timely file 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).
Dated this 10th day of February, 2021.
/s/_________
Honorable Jacqueline M. Rateau
United States Magistrate Judge