Opinion
CV-20-00341-TUC-JAS (DTF)
08-13-2021
Nathaniel Weibel, Petitioner, v. Barbara von Blanckensee, Respondent.
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge
On August 10, 2020, Nathaniel Weibel (“Petitioner” or “Weibel”) presently incarcerated in the U.S. Penitentiary in Tucson, Arizona (“USP Tucson”), filed a Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2241. (Doc. 1.) Respondent filed her answer on October 14, 2020. (Doc. 17.) The time to reply has passed. (See Doc. 6 at 4.) Petitioner has not filed a reply or a request for an extension to file a reply. (See Dkt.) The Petition is, therefore, fully briefed. This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 6 at 5.) As more fully set forth below, this Court recommends that the Petition be denied and dismissed.
The answer was lodged on October 9, 2020, pending a motion to exceed page limits. (Docs. 14, 15.)
BACKGROUND
In June 2017, the United States District Court for the District of South Dakota sentenced Petitioner to 300 months' incarceration and lifetime supervised release for 1 attempted enticement of a minor via the Internet. (Doc. 17-2 at 2, 11.) Petitioner is currently being held in USP Tucson. (Doc. 1 at 1.)
Petitioner raises four grounds for relief. (Doc. 1.) He requests that the district court order an expungement of the incident reports listed in grounds Two, Three, and Four and order he be released or placed in home confinement. Id. at 9.
In Ground One, he asserts that his custody in light of Respondent's reaction, or lack thereof, to the COVID-19 pandemic violates his Fifth and Eighth Amendment rights. Id. at 4. He alleges that he is unable to socially distance or otherwise protect himself from COVID-19. Id. In Ground Two, Petitioner argues he was denied his Fifth Amendment due process rights in disciplinary proceedings for eight incident reports: Nos. 3341676, 3294043, 3246216, 3156318, 3106255, 3215935, 3405653, and 3411106. Id. at 5. He contends that he was not permitted to call witnesses or to submit a written statement, and did not receive a psychological evaluation under 28 C.F.R. § 541.6(a). Id. In Ground Three, he claims he was sanctioned in No. 3106255 for “engaging in an activity protected by the 1st Amendment.” Id. at 6. In Ground Four, he states, “The facts of Ground One are identical here except this ground covers Incident Report Nos. 3106451, 6045218, which were also processed in the same unlawful manner.” Id. at 7. The Court surmises that Petitioner erroneously refers to Ground One and instead interprets this ground as reasserting the claims in Ground Two to the additional disciplinary proceedings. He also contends that he did not receive a Segregation Review Official (SRO) “hearing pursuant to 28 C.F.R. § 254.26” during his placements in the Special Housing Unit (SHU). Id.
Respondent claims Ground One is not cognizable in a § 2241 proceeding and may only be raised in a civil rights action. (Doc. 17 at 10-13.) She also proclaims that the Court lacks jurisdiction to review the SHU claim in Ground Four. Id. at 36. Respondent declares that Petitioner failed to exhaust the administrative remedies for all but the allegations for No. 3246216 in Ground Two. Id. at 5-7, 9-10. Further, Respondent contends that the administrative remedies are available and, thus, Petitioner should not be excused from exhausting them. Id. at 7-10. She also alleges that all of Petitioner's claims lack merit. Id. 2 at 13-14, 24-35
Petitioner did not file a reply. (See Dkt.) The parties stipulated to dismissing Petitioner's challenges to Incident Report Nos. 3405653 and 3411106. (Doc. 13.) The district court granted the stipulation and dismissed the challenges to those proceedings. (Doc. 18.)
DISCUSSION
Jurisdiction
Under § 2241, courts may grant a writ of habeas corpus if the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A prisoner who wishes to challenge the manner, location, or conditions of a sentence's execution must bring a petition pursuant to § 2241 in the custodial court. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Habeas provides jurisdiction over claims that “the deprivation of their good-conduct-time credits was causing or would cause them to be in illegal physical confinement.” Preiser v. Rodriguez, 411 U.S. 475, 487 (1973).
In this case, Petitioner challenges the constitutionality of his confinement considering the life-threatening conditions created by COVID-19, the loss of good-conduct-time credit without due process, the loss of good-conduct-time credit punishing First Amendment activity, and the lack of a required hearing during his time in SHU. (Doc. 1 at 4-7.)
Respondent argues that the district court lacks jurisdiction over the claim in Ground One and the SHU claim in Ground Four. (Doc. 17 at 10, 36.) The Court will consider each argument in turn.
Courts have a duty to consider their jurisdiction sua sponte. Nome Eskimo Cmty. v. Babbit, 67 F.3d 813, 815 (9th Cir. 1995). While, the Court clearly has jurisdiction over the claims about the loss of good-conduct-time credit, the allegations regarding Incident Report No. 3156318 does not involve such a loss. (Doc. 17-2 at 59.) Instead, Petitioner lost commissary privileges for thirty days. Id. Thus, the claim is moot because the sanction 3 lifted on September 11, 2018, and Petitioner did not assert there were any collateral consequences remaining. See id.; see also Wilson v. Terhune, 319 F.3d 477, 481-83 (9th Cir. 2003). Thus, these claims do not constitute a “case” before this Court, and hence, the Court lacks jurisdiction to consider it. Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (explaining that mootness is jurisdictional and that there must be an actual controversy during all stages of litigation); Nome Eskimo Cmty., 67 F.3d at 816 (affirming dismissal for mootness because there is no jurisdiction). The Court recommends that the district court dismiss the allegations regarding Incident Report No. 3156318 and will not discuss them further.
Cognizable (Ground One)
Respondent argues that Ground One is not cognizable under § 2241 because Petitioner is challenging the conditions of confinement, not the fact or duration of confinement. (Doc. 17 at 10.) Whether claims based on COVID-19 conditions are cognizable through a habeas petition is an open question, with some disagreement in this 4 district.
Compare Wilson v. Ponce, 465 F.Supp.3d 1037, 1049-50 (C.D. Cal. 2020) (writ of habeas corpus does not encompass Eighth Amendment claim for expedited review for enlargement of custody of prisoners at Federal Correctional Institution (FCI)-Terminal Island based on conditions during COVID-19 pandemic); Wragg v. Ortiz, 462 F.Supp.3d 476, 503 (D.N.J. 2020) (habeas petition brought by prisoners in FCI-Fort Dix were not properly brought as a habeas claim because petitioners were not contesting “validity of their convictions or sentences” or “duration of their confinement, ” but, instead seeking “injunctive relief based on unconstitutional conditions of confinement, a type of challenge that neither the Supreme Court nor the Third Circuit has yet recognized as a cognizable habeas claim.”); Alvarez v. Larose, 445 F.Supp.3d 861, 865-66 (S.D. Cal.), as amended (June 7, 2020) (habeas petition brought by prisoners at Otay Mesa Detention Center (OMDC) was not properly brought pursuant to 28 U.S.C. § 2241 because petitioners' claims were “based solely on the current conditions inside OMDC given the COVID-19 pandemic”); with Wilson v. Williams, 961 F.3d 829, 837 (6th Cir. 2020) (petitioners' claims “are properly brought under § 2241 because they challenge the fact or extent of their confinement by seeking release from custody” and claiming “no set of conditions would be constitutionally sufficient”); Torres v. Milusnic, 472 F.Supp.3d 713, 726 (C.D. Cal. 2020) (federal prisoners at FCI and USP Lompoc properly brought habeas action when they contended “there are no set of conditions of confinement that could be constitutional”); Gutierrez-Lopez v. Figueroa, 462 F.Supp.3d 973, 983 (D. Ariz. 2020) (viewing allegation by petitioner detained in CoreCivic Eloy Detention Center as challenging the fact of confinement and stating that “in the absence of clear or binding authority to the contrary, her claims are cognizable under § 2241.”); Cameron v. Bouchard, 462 F.Supp.3d 746, 781-82 (E.D. Mich. 2020) (habeas petition pursuant to 2241 was “proper avenue” for plaintiffs' claims which “seek release for medically-vulnerable inmates not because the conditions of their confinement fail to prevent irreparable constitutional injury, but based on the fact of their confinement” in light of the COVID-19 pandemic), vacated on other grounds by 815 Fed.Appx. 978 (6th Cir. 2020); Martinez-Brooks v. Easter, 459 F.Supp.3d 411, 433-34 (D. Conn. 2020) (FCI-Danbury prisoners properly brought habeas claim where they contended “the fact of their confinement in prison itself amounts to an Eighth Amendment violation under . . . circumstances” arising during the COVID-19 pandemic and claimed “nothing short of an order ending their confinement at FCI Danbury will alleviate that violation”); Malam v. Adducci, 452 F.Supp.3d 643, 649-50 (E.D. Mich.), as amended (Apr. 6, 2020) (holding petitioner asserted cognizable habeas claim regarding confinement in Calhoun County Correctional Facility amidst COVID-19 pandemic where she “has not conceded the existence of acceptable alternative conditions of her confinement” and “her Fifth Amendment claim, if successful, would render her continued detention invalid”).
Compare Gutierrez-Lopez v. Figueroa, 462 F.Supp.3d 973, 983 (D. Ariz. 2020) (viewing allegation by petitioner detained in CoreCivic Eloy Detention Center as challenging the fact of confinement and stating that “in the absence of clear or binding authority to the contrary, her claims are cognizable under § 2241.”); Patel v. Barr, No. CV-20-00709 (D. Ariz. May 21, 2020) (concluding petitioner's claim that Eloy Detention Center did not have reasonable recommended policies and practices in place to protect her from COVID-19 were cognizable under § 2241); with Arellano Lopez v. U.S. Dep't of Homeland Sec., No. CV-20-01063-PHX, 2021 WL 2079840, at *5 (D. Ariz. January 28, 2021) (concluding that claim that petitioner's detention at La Palma Correctional Center was unconstitutional because COVID-19 conditions “is not cognizable under § 2241 because it is not within the ‘core' of habeas”), R. & R. adopted by No. CV-20-01063-PHX (D. Ariz. May 24, 2021); Ibarra-Perez v. Howard, 468 F.Supp.3d 1156, 1170 (D. Ariz. 2020) (stating “it would rule that Counts Two, Three, and Four of the Petition are subject to dismissal because they are not cognizable in a § 2241 action” when considering claim that detention facility failed to implement sufficiently safe precautions against COVID-19).
It has long been held that the heart of habeas corpus is “immediate release or a speedier release from that confinement.” Preiser, 411 U.S. at 498. Claims requiring consideration of conditions may be viewed as challenging the fact of confinement. See Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) (“[W]here a petitioner claims that no set of conditions would be constitutionally sufficient the claim should be construed as 5 challenging the fact or extent, rather than the conditions, of the confinement.”); see also Gutierrez-Lopez v. Figueroa, 462 F.Supp.3d 973, 983 (D. Ariz. 2020).
The United States Supreme Court, however, has neither explicitly nor implicitly foreclosed the use of habeas corpus for conditions-of-confinement claims. See Ziglar v. Abbasi, 137 S.Ct. 1843, 1862 (2017) (leaving open question of whether alien detainees challenging “large-scale policy decisions concerning the conditions of confinement imposed . . . might be able to challenge their confinement conditions via a petition for a writ of habeas corpus”); Boumediene v. Bush, 553 U.S. 723, 792 (2008) (declining to determine “reach of the writ with respect to claims of unlawful conditions of treatment or confinement”); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (leaving for “another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement”). The courts that have permitted COVID-19 related claims to sound in habeas have done so only when the claim argued there was no set of conditions under which the confinement would be constitutionally sufficient. Al-Amin v. Unknown Party, No. CV 21-00200-TUC, at 5 (D. Ariz. June 22, 2021).
See also Brown v. Plata, 563 U.S. 493, 563 (2011) (Scalia, J., dissenting) (stating that prisoner-release injunction was “functional equivalent of 46, 000 writs of habeas corpus” and release should be ordered only if it is determined “that the prisoner is suffering from a violation of his constitutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that prisoner (and no other remedy) would enable him to obtain medical treatment, then the court can order his release”).
Here, Petitioner does not allege that there are no set of conditions under which he could be constitutionally held. (See Doc. 1 at 4.) Instead, his issues include lack of masks, cleaning solution, laundry service, ability to socially distance, etc. Id. The Court interprets these as asserting that sufficient supplies and protocols could render the conditions of confinement constitutional but that the proper supplies and protocols are not currently present. Petitioner does not point to any case where such a claim has been cognizable under habeas, and the Court has not found such a case. Because Petitioner does not assert that no 6 set of conditions would be constitutionally sufficient, the Court recommends finding that this claim is not cognizable under habeas. Further, Petitioner's claims contest fluid conditions that are rapidly subject to change, unlike the more static or permanent issues underlying a fact-of-confinement claim. The conditions within USP Tucson have changed rapidly since the beginning of the year with vaccines being administered. See BOP, COVID-19 Vaccine Implementation, https://www.bop.gov/coronavirus/index.jsp (last visited August 13, 2021); BOP, FCC Tucson, https://www.bop.gov/locations/ search.jsp?q=FCC+Tucson&name=Tucson&facilityType=FCC (last visited August 13, 2021). However, in an abundance of caution, the Court considers the merits of the claim.
Even if the claim was cognizable under habeas, the requested relief if unavailable because Petitioner has not complied with the Prison Litigation Reform Act (PLRA). “The PLRA contains a variety of provisions designed to bring [prisoner] litigation under control.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). It does not apply to habeas proceedings challenging the fact or duration of confinement. 18 U.S.C. § 3626(g)(2). It limits courts from ordering release in a conditions-of-confinement action unless there have been previous orders for less intrusive relief. § 3626(a)(3)(A). Further, such an order may only be entered by a three-judge court. § 3626(a)(3)(B).
Here, Petitioner is asserting a conditions-of-confinement claim. (Doc. 1 at 4.) Accordingly, he is bound by the PLRA. He does not request any remedy other than release for Ground One. Id. at 9. Further, he has not requested a three-judge panel to review this matter. Id. Petitioner has failed to comply with the PLRA and the requested relief is unavailable. Because there is no redress for Petitioner in this claim, he lacks standing and this Court lacks jurisdiction. See Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38 (1976); Romero-Lorenzo v. Koehn, No. CV-20-00901-PHX (D. Ariz. Feb. 19, 2021) (concluding district court did not have jurisdiction to grant relief in habeas because petitioner had not complied with PLRA). Thus, this Court lacks jurisdiction to grant such relief.
Courts may convert a habeas petition into a civil rights complaint, - “if the complaint is amenable to conversion on its face, meaning that it names the correct defendants and 7 seeks the correct relief.” Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016) (quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). Here, the correct defendants have not been named and the only requested relief is release. Additionally, the fee for a habeas proceeding is much lower than the fee required for a civil rights action. Hence, Petitioner would be required to pay a larger fee if the district court were to convert his claim into a civil rights action. Thus, this Court does not recommend converting these claims.
Petitioner did not file an application to proceed in district court without prepaying fees or costs. (Doc. 5.)
The claim in Ground One is not cognizable under § 2241. Additionally, Petitioner has not complied with PLRA, such that there is no available remedy. In an abundance of caution, the Court will consider the merits of the claim in Ground One.
Jurisdiction over Ground Four SHU Claim
Respondent argues that this is a conditions-of-confinement claim, which should be brought in a civil rights action, not a habeas petition. (Doc. 17 at 36.) As explained above, the heart of habeas corpus is “immediate release or a speedier release from that confinement” with the door being left open as to whether § 2241 also includes conditions-of-confinement claims. See Preiser, 411 U.S. at 498; see also Ziglar, 137 S.Ct. at 1862; Boumediene, 553 U.S. at 792; Bell, 441 U.S. at 526 n.6.
A successful challenge here could not result in an accelerated release; it is unclear what relief Petitioner is requesting for this claim. (See Doc. 1 at 9 (asking for expungement of incident reports enumerated and release or home confinement for Ground One but not mentioning relief for SHU claim).) Thus, while the Supreme Court has left open the door for conditions-of-confinement claims, these claims do not lay within the core of habeas. See Preiser, 411 U.S. at 498. Further, this SHU claim is akin to a challenge on a prisoner's classification, which is not cognizable in a habeas petition. See Davidson v. McClintock, No. CV-13-0530-TUC, 2014 WL 2921900, at *1 (D. Ariz. June 27, 2014) (“Claims which pertain to prisoner's classifications, especially individual custodial classification scores, are not cognizable in a federal habeas petition.”). 8
Hence, the Court lacks jurisdiction over this claim and will not consider it further.
Exhaustion
Before a court may consider the merits of a § 2241 petition, it must address exhaustion. See Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). To exhaust a § 2241 claim, the petitioner must exhaust all available judicial and administrative remedies, unless excused. Id. For § 2241 claims, the exhaustion requirement is prudential, not jurisdictional. Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017). “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). Exhaustion can be waived or excused when “administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void.” Hernandez, 872 F.3d at 988 (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)). It is the petitioner's burden to show grounds for excusing the exhaustion requirement. Cf. Leonardo, 646 F.3d at 1161 (ordering petition be dismissed when petitioner did not demonstrate grounds to excuse exhaustion requirement). Review process is not efficacious if it is unavailable because official refuse to provide forms. Butler v. Bradley, No. CV 20-11211, 2021 WL 945252, at *3 (C.D. Cal. Feb. 22, 2021).
The Bureau of Prison (BOP) has established a multi-tier administrative process “to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. §§ 542.10-542.19. Under this process, an inmate must proceed through four levels: (1) an attempt at informal resolution; (2) a formal written request to the warden for an administrative remedy; (3) an appeal to the Regional Director of the region where the inmate is confined; and (4) an appeal to the General Counsel. 28 C.F.R. §§ 542.13-542.15. The appeal to the General Counsel completes the administrative remedy process. 28 C.F.R. § 542.15(a).
If a claim is procedurally defaulted, perhaps because a petitioner failed to timely 9 appeal, then the court may not review the claim absent excuse. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994). Procedural default maybe excused if the petitioner demonstrates cause for the default and actual prejudice from the alleged constitutional violation. See id.; Francis v. Rison, 894 F.2d 353, 354-55 (9th Cir. 1990) (suggesting cause and prejudice is appropriate test); see also Murray v. Carrier, 477 U.S. 478, 492 (1986) (cause-and-prejudice test applied to procedural defaults on appeal).
Here, Respondent asserts that only one of Petitioner's claims is properly exhausted. (Doc. 17 at 4.) Petitioner acknowledges that he has not exhausted all administrative remedies related to any of the grounds raised. (Doc. 1 at 4-7.) He instead contends that the administrative remedies are unavailable. (Doc. 1-1.)
Petitioner has filed eighteen administrative requests and appeals during incarceration. (Doc. 17-2 at 5.) Relevant here, he submitted administrative remedy appeals to the Regional Office for Incident Report Nos. 3106451, 3246216, and 3294043. Id. at 172-82. However, only No. 3246216 was appealed to the General Counsel. Id. at 6. Further, Petitioner has not filed administrative proceedings related to his claim contesting the lack of appropriate COVID-19 precautions. (Doc. 17-2 at 7-8.)
Thus, Petitioner only exhausted his claim that the disciplinary hearing for Incident Report No. 3246216 lacked due process. The other claims should be dismissed unless Petitioner is excused from the exhaustion requirement, as he claims.
Petitioner asserts that he is “borderline mentally retarded” and, thus, unable to comprehend the remedies process without assistance. (Doc. 1-1.) He argues that the staff at USP Tucson are unwilling to help him in preparing or filing the proper forms, contrary to BOP's policies requiring staff to assist prisoners. Id. Finally, he alleges that the staff of USP Tucson engage in a “custom and practice of retaliation” to “deter inmates from utilizing the administrative remedy process.” Id. Petitioner states that the staff threatens and harasses inmates when they ask for forms or assistance in completing the forms, or when they submit forms or complaints. Id.
Respondent contends that Petitioner's administrative remedy history belies these 10 claims. (Doc. 17 at 8.) Respondent points out that Petitioner was able to exhaust one claim and two proceedings were pending at the time of the response. Id. Plaintiff has not responded to this argument. However, he did exhaust his claims related to Incident Report No. 3246216. He also appealed two additional claims to the Regional Office. (Doc. 17-2 at 6, 178, 191.) Clearly, he had access to the correct forms and was not prevented from filing the appropriate appeals.
Assuming Petitioner was “borderline mentally retarded, ” he has still not shown that the administrative remedies were inaccessible to him. Cf. Washington v. Fresno Cnty. Sheriff, No. 1:14-cv-00129, 2018 WL 1033278, at *10 (Feb. 21, 2018 C.D. Cal.) (distinguishing case from one in which plaintiff was hospitalized with serious mental illness in location without forms in PLRA case); Johnson v. District of Columbia, 869 F.Supp.2d 34, 39-40 (D.D.C. 2012) (not excusing failure to exhaust administrative remedy when plaintiff was mentally incompetent in PLRA case). He was able to exhaust one claim and was able to appeal others to the Regional Office.
At best the record shows that Petitioner was a Mental Health Care Level Two prior to October 2018, at which point Petitioner was reclassified as a Mental Health Level One. (See Doc. 17-2 at 16, 63.) A mental health care level two indicates that Petitioner had a mental illness which required either “[r]outine outpatient mental health care on an ongoing basis” or “[b]rief, crisis-oriented mental health care of significant intensity, ” but not “[e]nhanced outpatient mental health care (i.e., weekly mental health interventions.)” Id. at 26. This is insufficient to show that the administrative remedies were inadequate for Petitioner. The burden to show that the exhaustion requirement should be excused is on Petitioner. See Leonardo v. Crawford, 646 F.3d at 1161 (requiring Petitioner to show that exhaustion should be excused). Thus, Petitioner has not demonstrated that he should be excused from exhausting his other claims.
Accordingly, this Court recommends dismissing without prejudice all of Petitioner's claims, except for the claim for Incident Report No. 3246216 in Ground Two. However, in an abundance of caution the Court will address the merits of Petitioner's 11 claims.
Merits
COVID-19 Response (Ground One)
Petitioner argues the lack of COVID-19 precautions are causing “life threatening conditions” at USP Tucson, which “turn his [custodial] sentence into a death sentence.” (Doc. 1 at 4.) He alleges that “BOP officials have perjured themselves to claim they have taken action to prevent COVID-19 when in fact they knowingly lied to this Court.” Id. Respondent contends that Petitioner has “not articulate[d] a proper claim for Fifth or Eighth Amendment relief.” (Doc. 17 at 13.) This Court agrees.
In 2019, a novel coronavirus emerged. WHO, Listing of WHO's response to COVID-19 , https://www.who.int/news/item/29-06-2020-covidtimeline (last visited August 13, 2021). On January 21, 2020, the United States reported its first confirmed case of the novel coronavirus, which was later labeled COVID-19 or SARS-CoV-2. Id. It appears “to spread more easily than flu and causes more serious illnesses in some people.” CDC, Symptoms of COVID-19 , https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited August 13, 2021). “It can also take longer before people show symptoms and people can be contagious for longer.” Id. In March 2020, the World Health Organization (WHO) assessed that “COVID-19 could be characterized as a pandemic.” Listing of WHO's response to COVID-19 , supra. The WHO urged countries to “detect, test, treat, isolate, trace, and mobilize their people in the response” to this global pandemic. Id.
COVID-19 is spread “when an infected person breathes out droplets and very small particles that contain the virus.” CDC, How COVID-19 Spreads, https://www.cdc.gov/ coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited August 13, 2021). The droplets can then be breathed in by noninfected persons or land on their eyes, noses, or mouths. Id. The Center for Disease Prevention and Control (CDC) lists three main ways that COVID-19 spreads. Id. First, “[b]reathing in air when close to an infected person who is exhaling small droplets and particles that contain the virus.” Id. Second, 12 “[h]aving these small droplets and particles that contain [the] virus land on the eyes, nose, or mouth, especially through splashes and sprays like a cough or sneeze.” Id. Finally, “[t]ouching eyes, nose, or mouth with hands that have the virus on them.” Id.
The CDC notes that most people who contract COVID-19 have mild symptoms, but some become “severely ill.” CDC, Basics of COVID-19 , https://www.cdc.gov/coronavirus/ 2019-ncov/your-health/about-covid-19/basics-covid-19.html (last visited August 13, 2021). It observes that that adults with certain medical conditions are more likely to get severely ill from COVID-19: cancer, chronic kidney disease, chronic lung disease (including cystic fibrosis and asthma), dementia, diabetes, down syndrome, heart conditions, HIV infection, liver disease, obesity, pregnancy, sickle cell disease, smoking (current or former), solid organ or blood stem cell transplant, stroke or cerebrovascular disease, and substance use disorders. CDC, People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited August 13, 2021).
COVID-19 took a toll on the world. Over four million people worldwide have died from COVID-19. John Hopkins Univ. of Med., COVID-19 Dashboard, https://coronavirus.jhu.edu/map.html (last visited August 13, 2021). In the United States, there have been more than 600, 000 COVID-19 deaths. Id. The death toll in Arizona is over 18, 000. John Hopkins Univ. of Med., Coronavirus Resource Center Arizona, https://coronavirus.jhu.edu/region/us/arizona (last visited August 13, 2021). Many others have suffered long lasting effects from COVID-19. CDC, Post-COVID Conditions, https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects.html (last visited August 13, 2021).
The CDC has issued guidance for correctional and detention facilities. CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html (last visited August 13, 2021). This guidance is “to assist in preparing for potential introduction, spread, and mitigation of 13 SARS-CoV-2 (the virus that causes Coronavirus Disease 2019, or COVID-19) in their facilities” and was updated as recently as June 9, 2021. Id. The CDC recommends that facilities stay stocked in cleaning supplies, personal protective equipment, and medical supplies. Id. Specifically, it recommends providing soap and masks at no cost. Id. However, the CDC also recommends putting a plan in place to consider potential shortages in supplies. Id.
The CDC also recommends several “strategies to increase the physical space between incarcerated/detained persons (ideally 6 feet between all individuals, regardless of symptoms), and to minimize mixing of individuals from different housing units.” Id. These include arranging bunks so people can “sleep head to foot to increase the distance between their faces, ” creating work assignments so each detail “includes only individuals from a single housing unit, ” and increasing space between people in holding cells, lines, and waiting areas. Id.
BOP enacted multiphase, national measures to protect staff and inmates from COVID-19. (Doc. 17-4 at 3-9.) First, BOP sought guidance from the Health Services Division and began coordinating with experts to implement guidance from the CDC and WHO. Id. at 4. Then, BOP initiated temporary restrictions on all facilities, which limited social and legal visits, transfers, staff travel and training, tours, ect. Id. at 4-5. BOP also screened inmates and staff upon arrival for symptoms and exposure risk factors. Id. at 5. Inmates were also quarantine depending on the screening. Id. The quarantine was later changed to an automatic quarantine for all new arrivals to BOP institutions. Id. at 6. BOP implemented modified operations to maximize social distancing, including staggered meals and recreation times. Id. Eventually, BOP resumed visitations with screening, masks, and other limitations. Id. at 9.
USP Tucson put in place additional measures to prevent the spread of COVID-19. Id. at 10. USP Tucson put in place several efforts to educate staff and inmates on limiting spread of COVID-19, how to recognize symptoms, and how to properly don and remove personal protective equipment, such as masks. Id. at 10-13. Inmates received disposable 14 masks in April, which were later replaced with washable cloth masks in May. Id. at 12-13. Inmates could exchange dirty masks for clean ones and have access to laundry every two days. Id. at 13. Staff must wear masks. Id. at 12.
USP Tucson also mandated screening of staff and inmates. Id. at 13-18. In addition to the screening, there is a quarantine period of arriving inmates or inmates with symptoms or exposure risk. Id. at 14, 16-17. Movement within the facility was limited to maximize social distancing, including “grab and go” breakfasts and dinners with inmates eating in their housing units and staggering lunch times. Id. at 13-15. USP Tucson also ordered enhanced cleaning and disinfecting measures. Id. at 10, 20. This required that common areas be cleaned at least daily with disinfectant made available to all inmates and stocked within each housing unit. Id. at 20-21. USP Tucson also identified inmates that are “high risk” and implemented testing procedures. Id. at 15-16, 19-20.
Since the answer, BOP has started distributing the COVID-19 vaccines to inmates, including those at USP Tucson. See BOP, COVID-19 Vaccine Implementation, supra (last visited August 13, 2021); BOP, FCC Tucson, supra (last visited August 13, 2021). In fact, of the 1, 559 inmates currently housed at FCC-Tucson, 1, 301 (83%) have been fully vaccinated. See COVID-19 Vaccine Implementation, supra (1, 301 inmate inoculations completed); BOP, USP Tucson, https://www.bop.gov/locations/institutions/tcp/ (last visited August 13, 2021) (1, 371 total inmates in USP Tucson); BOP, FCI Tucson, https://www.bop.gov/locations/institutions/tcn/ (last visited August 13, 2021) (188 total inmates in FCI Tucson). This is high compared to the surrounding area of Pima County, where 63.9% of adults and 53.5% of the total population are fully vaccinated. See CDC, COVID-19 Integrated County View, COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker/#vaccinations-county-view (choose “Arizona” from dropdown; then choose “Pima County” from second dropdown) (last visited August 13, 2021).
As Respondent correctly points out, the Fifth Amendment conditions-of-confinement claims are not applicable here because they apply to “pretrial and immigration detainees.” Ziglar, 137 S.Ct. at 1877 (Breyer, J., dissenting). Petitioner 15 is neither a pretrial nor immigration detainee. Further, Petitioner has not argued the lack of COVID-19 precautions violate his due process or equal protection rights. (See Doc. 1.) Thus, the Fifth Amendment claim in Ground One should be dismissed on the merits.
An Eighth Amendment claim requires petitioners to show both that they are objectively “incarcerated under conditions posing a substantial risk of serious harm” and that the prison official acted with “‘deliberate indifference' to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference is a higher standard than negligence or lack of ordinary due care for prisoners' safety. Id. at 835. It requires that the official knew of and disregarded “an excessive risk to inmate health or safety.” Id. at 837.
Here, Petitioner alleges that he has severe asthma and is thus at a heightened risk of serious illness or death from COVID-19. (Doc. 1 at 4.) He claims he is unable to socially distance as he is housed in SHU with another inmate. Id. He asserts that there is no access to masks, cleaning solutions, laundry services, soap, gloves, face shields, or any PPE. Id. Respondent argues that Petitioner fails to show either that the conditions pose a substantial risk of serious harm or that the prison has acted with deliberate indifference toward Petitioner's safety. (Doc. 17 at 13-15.) Specifically, Respondent has put forth convincing evidence and Petitioner has made no attempt to refute or respond to said evidence.
Petitioner has failed to properly allege that Respondent has acted with deliberate indifference to COVID-19. Respondent put in place safety measures against COVID-19, as discussed above. (Doc. 17-4 at 10-20.) Specifically, inmates, such as Petitioner, has access to masks, laundry service, cleaning solution, and hygiene packets and were isolated within their housing unit or with their cellmate. (Doc. 17 at 15; Doc. 17-4 at 13, 16, 20.) Further, Respondent screens outside staff, delivery drivers, and visitors. (Doc. 17 at 16; Doc. 17-4 at 18.) Respondent also has undertaken education efforts, implemented testing and quarantine protocols, and limited movement of the inmates. (Doc. 17 at 16; Doc. 17-4 at 10.) Respondent even claims that no inmate has acquired COVID-19 while housed in 16 the USP Tucson facility. (Doc. 17 at 16; Doc. 17-4 at 19.) These efforts show that the facility did not deliberately disregard the risks COVID-19 presents to Petitioner.
This claim is dubious considering there were many difficulties in testing, particularly at the beginning of the pandemic. (Doc. 17-5 at 3 (“At the time of our fieldwork, FCC Tucson was not conducting widespread inmate testing for COVID-19.”).) This is particularly problematic considering that some people with COVID-19 show no to mild symptoms. Lisa Maragakis, Coronavirus Diagnosis: What Should I Expect?, John Hopkins Med., https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/diagnosedwith-covid-19-what-to-expect (last visited August 13, 2021). However, it does show that there has not been any widespread outbreak at FCC Tucson. Currently, BOP reports that zero inmates have tested positive and that there have been no inmate or staff deaths because of COVID-19. BOP, COVID-19 Inmate Test Information, https://www.bop.gov/ coronavirus/index.jsp (last visited August 13, 2021). Additionally, BOP reports that it is now “testing of asymptomatic inmates to assist in slowing transmissions within a correctional setting.” Id.
Therefore, Petitioner's claim lacks merit and should be denied. If the district court disagrees, this Court recommends ordering supplemental briefing on any changed conditions, specifically the availability of vaccines and the effect of their implementation.
Due Process for Disciplinary Hearings (Grounds Two and Four)
Petitioner claims he was denied due process in the disciplinary hearings for the Incident Report Nos. 3341676, 3294043, 3246216, 3106255, 3215935, 3106451, and 3045218 because he did not have an opportunity to call witnesses or to submit a written statement and he did not receive a psychological evaluation as required by 28 C.F.R. § 541.6(a). (Doc. 1 at 5, 7.)
Petitioner also includes Incident No. 3156318. The Court has already determined that it does not have jurisdiction over these allegations and thus will not consider their merits.
“Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). “[T]here must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” Id. The Supreme Court has held that due process for a prison disciplinary hearing requires: “written notice of the claimed violation”; at least twenty-four hours between delivery of 17 the written notice and the hearing; “‘written statement by the factfinders as to the evidence relied on and reasons' for the disciplinary action”; ability to call witnesses and present evidence if it “will not be unduly hazardous to institutional safety or correctional goals”; and if “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, ” the inmate should be able to seek assistance. Id. at 563-70 (internal citations omitted).
No. 3045218
Officials alleged that, on October 15, 2017, Petitioner used the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor frequency of telephone use and giving money or something of value to or accepting money or something of value from another person without staff authorization. (Doc. 17-2 at 63.) Petitioner gave his information to another inmate, who made a telephone call. Id. During the call, the inmate provided Petitioner's information and told the other person to send Petitioner thirty dollars. Id.
The DHO hearing was on November 3, 2017. Id. at 62. Petitioner waived his right to a staff representative and his right to call witnesses. Id. Petitioner made a statement to the DHO. Id. Because Petitioner was designated Mental Health Care Level Two, the psychology department interviewed him and determined that he was competent and responsible for his actions. Id. at 63. The DHO found that Petitioner had used the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor frequency of telephone use. Id. at 63. The DHO disallowed twenty-seven days of good-conduct-time credit. Id. at 64.
No. 3106255
On March 29, 2018, officials accused Petitioner of using the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor frequency of telephone use. Id. at 66. During a monitored call, Petitioner asked someone to pass messages through Facebook and to download and send him pictures from a separate profile. Id. at 67. 18
The DHO hearing was on April 28, 2018. Id. at 66. Petitioner made a statement at the DHO hearing and leading to the hearing. Id. at 66-67. He also waived his right to call witnesses or to have a staff representative. Id. at 66-67, 69. The DHO found that Petitioner had used the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor frequency of telephone use. Id. at 67. The DHO disallowed twenty-seven days of good-conduct-time credit, placed Petitioner in disciplinary segregation for fifteen days, which was suspended pending 180 days of clear institutional conduct, and prohibited Petitioner from telephone use for 180 days. Id. at 68.
No. 3106451
On March 29, 2018, Petitioner allegedly assaulted a staff member and threatened them with bodily harm. Id. at 81. Petitioner was sent to SHU pending an investigation on Incident Report No. 3106255. Id. He became aggressive with the staff member escorting him. Id. Petitioner then threatened the staff member, saying that the last officer to give him problems by locking him up went to the emergency room. Id. The staff member asked if that was a threat, to which Petitioner responded that the staff member “should be able to figure” it out. Id. As they entered a sallyport, Petitioner attempted to pull away from the staff member, who placed Petitioner against a wall. Id. Petitioner attempted to pull away again and turn toward the officer. Id. The staff member put Petitioner on the ground to maintain control until additional staff could arrive. Id.
The DHO hearing was on June 6, 2018. Id. at 74. Petitioner waived his right to staff representation and to call witnesses. Id. at 74-75, 77, 80. He made a statement to the DHO but had no documentary evidence to submit. Id. at 74-75. The DHO found that Petitioner had threated another with bodily harm or any other offense. Id. at 75. The DHO also concluded that the assault was “inappropriately charged” and expunged it from Petitioner's record. Id. The DHO disallowed twenty-seven days of good-conduct-time credit, placed Petitioner in disciplinary segregation for fifteen days, imposed from Incident report No. 3106255, and ordered loss of commissary for ninety days. Id. at 76. 19
No. 3215935
On January 1, 2019, Petitioner purportedly gave money to, or received money from, a person for the purpose of introducing contraband. Id. at 89. Staff members discovered an email from another inmate stating “weible-$25 bucks.” Id. at 90. An investigation revealed that an inmate's grandmother had deposited money into Petitioner's account. Id.
The DHO hearing was on February 11, 2019. Id. at 89. Petitioner waived his right to call witnesses and to a staff representative. Id. at 89, 96. He made a statement to the DHO but did not submit documentary evidence. Id. at 89-90. The DHO found that Petitioner had committed the act as charged. Id. at 90. The DHO disallowed twenty-seven days of good-conduct-time credit and ordered loss of email for one year. Id.
No. 3246216
On April 5, 2019, Petitioner allegedly tattooed or mutilated himself and committed conduct that is disruptive to the security or orderly running of the institution. Id. at 98. An inmate was actively injecting colored ink into inmates' eyes. Id. at 99. Petitioner had colored the whites of his eyes blue. Id.
The DHO hearing was on May 15, 2019. Id. at 98. Petitioner made a statement to the DHO but declined to call witnesses or submit documentary evidence. Id. at 98-99. Petitioner requested and received a staff representative. Id. at 98, 104. Petitioner's staff representative also made statements on Petitioner's behalf. Id. at 100. The DHO found that Petitioner had participated in conduct that was disruptive to the security or orderly running of the institution, most like tattooing or self-mutilation. Id. at 99. The DHO disallowed twenty-seven days of good-conduct-time credit and ordered loss of commissary for ninety days and loss of visits for ninety days. Id. at 100.
No. 3294043
On August 20, 2019, Petitioner was charged with possessing a dangerous weapon. Id. at 108. During a search of Petitioner's cell, staff found an item approximately five inches in length that had a metal point with a plastic handle wrapped in shoelace. Id. at 110. 20
The DHO hearing was on September 23, 2019. Id. at 124. Petitioner had requested statements from Unit E-2 and a staff representative. Id. at 122. At the hearing, Petitioner waived his right to a staff representative and to call witnesses. Id. at 124-25. Petitioner made a statement but did not submit any documentary evidence. Id. at 125-26. The DHO found that Petitioner had possessed a dangerous weapon. Id. at 126. The DHO disallowed forty-one days of good-conduct-time credit, ordered loss of commissary for 180 days, and placed Petitioner in disciplinary segregation for thirty days, spending pending clear conduct. Id.
Petitioner appealed to the Western Regional Office. Id. at 6. The Regional Office closed the appeal and requested that the DHO conduct a rehearing. Id. at 191. At the rehearing, Petitioner requested a staff representative who made statements on his behalf. Id. Petitioner also made statements on his own behalf. Id. at 110. He waived his right to call witnesses and to submit documentary evidence. Id. at 109. The DHO found that Petitioner had possessed a hazardous tool while incarcerated. Id. The DHO disallowed forty-one days of good-conduct-time credit, ordered loss of commissary for 180 days, and placed Petitioner in disciplinary segregation for thirty days. Id. at 110.
No. 3341676
On November 18, 2019, Petitioner allegedly aided in introducing drugs or alcohol to the institution. Id. at 139. During an investigation, Petitioner attempted to mail a note concealed in a book on behalf of another inmate. Id. at 141. The other inmate wrote the note, which contained names of other inmates to whom contraband, such as narcotics and child pornography, could be sent. Id.
The DHO hearing was on January 23, 2020. Id. at 139. Petitioner received a staff representative, who made statements on his behalf. Id. Petitioner requested a witness, who the staff representative interviewed before the hearing and who provided a written statement taking responsibility for the book. Id. at 140. Petitioner did not submit any further documentary evidence. Id. He made a statement at the DHO hearing. Id. at 141. The DHO considered Petitioner's and the witness's statements and found that Petitioner had 21 attempted to introduce contraband into the institution though an abuse of the mail. Id. The DHO disallowed forty-one days of good-conduct-time credit, ordered loss of commissary for 180 days, and placed Petitioner is disciplinary segregation for thirty days. Id.
Here, Petitioner attacks three issues with his disciplinary proceedings: ability to call witnesses, ability to submit a written statement, and lack of psychological evaluation pursuant to § 541.6(a). (Doc. 1 at 5, 7.)
Opportunity to Call Witnesses and Present Written Statement.
Inmates have the right to call witnesses and to present documentary evidence if not unduly hazardous to institutional safety or correctional goals. See Wolff, 418 U.S. at 566. Respondent has not claimed that either would have been unduly hazardous. (Doc. 17.)
Respondent points out that Petitioner waived his right to call witnesses in all the proceedings attached to the relevant proceedings, except No. 3341676. (Doc. 17-2 at 62, 66, 69, 74, 77, 89, 96, 98, 104, 109, 139-40, 152.) In 3341676, Petitioner requested a witness and provided the witness's statement to the DHO. Id. at 140-41. The DHO acknowledged the statement but noted that Petitioner was in possession of the book containing instructions to the third party to assist in introducing contraband to the facility. Id. at 141. In-person testimony would merely have been redundant to the DHO's clear acceptance of the witness's statement. See Zimmerlee v. Keeney, 831 F.3d 183, 188 (9th Cir. 1987) (concluding there was no due process violation when hearing officer accepted statements as true without in-person testimony). Petitioner does not argue that due process required this witness to be in person, that he was prejudiced by admitting a statement over in-person testimony, or that he ever requested in-testimony. (Doc. 1 at 5.) Hence, the record shows that Petitioner received the opportunity to call witnesses and subsequently waived it or was able to provide witness's testimony to the DHO.
Respondent contends that Petitioner had the opportunity to present documentary evidence and declined the opportunity. Id. at 25-32. Petitioner made statements for every incident report proceeding, either himself or through a staff representative. (Doc. 17-2 at 62, 66, 74, 89, 98, 108, 139.) Thus, Petitioner's argument is without merit. He was able to 22 provide a statement, and he fails to argue why this was be insufficient.
Evaluation Pursuant to § 541.6(a)
Petitioner attacks the lack of psychological evaluation before the disciplinary hearings. “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.” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). The Fifth Amendment provides different standards than BOP regulations. Waters, 2020 WL 6816359, at *5. Petitioner does not assert that he was incompetent during the disciplinary proceedings or that the lack of evaluation resulted in any harm. (Doc. 1 at 5.) Further, assuming that the hearing was so complex that Petitioner could not adequately comprehend the issues, Petitioner would then have been entitled to seek assistance. In Incident Report Nos. 3246216, 3341676, and 3294043, Petitioner received a staff representative. (Doc. 17-2 at 98, 104, 108, 139.) In Incident Report Nos. 3045218, 3106451, 3215935, and 3106255, he waived a staff representative. Id. at 62, 66, 69, 74, 77, 89, 96. He does not claim he was unable to seek assistance.
Petitioner does not argue he has an independent liberty interest in a psychological evaluation based on the regulation. (Doc. 1 at 5, 7.) Even assuming Petitioner attempted to make this argument, it would fail. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (states create liberty interest generally if it “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”).
Thus, Petitioner's claims lack merit and should be denied and dismissed.
First Amendment (Ground Three)
Petitioner asserts that, in Incident Report No. 3106255, he was punished for engaging in an activity protected by the First Amendment. (Doc. 1 at 6.) Respondent argues Petitioner was punished for evading monitoring of communications, not for engaging in a protected activity. (Doc. 17 at 33.)
While “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution, ” Turner v. Safley, 482 U.S. 78, 84 (1987), “courts are ill equipped to deal with the increasingly urgent problems of prison administration and 23 reform, ” Procunier v. Martinez, 416 U.S. 396, 405 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). Prison regulations may “impinge on an inmate's constitutional rights if those regulations are ‘reasonably related to legitimate penological interests.'” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (quoting Turner, 482 U.S. at 89).
Courts must consider whether a First Amendment interest must be implicated. Hrdlicka v. Reniff, 631 F.3d 1044, 1048 (9th Cir. 2011) (citing Thornburgh, 490 U.S. at 408). If a First Amendment interest is present, courts then evaluate whether the regulation is valid. Turner, 482 U.S. at 89. Courts apply the four-factor test from Turner:
(1) whether there is “a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) “whether there are alternative means of exercising the right that remain open to prison inmates”; (3) what “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) whether there is an “absence of ready alternatives.”Nordstrom v. Ryan, 856 F.3d 1265, 1272 (9th Cir. 2017) (quoting Turner, 482 at 89-91).
Here, in Incident Report No. 3106255, staff accused Petitioner of using the telephone for abuses other than illegal activity, which circumvented telephone monitoring procedures. (Doc. 17-2 at 66.) Wardens must establish procedures to monitor telephone conversations within the institutions. 28 C.F.R. § 540.102. The monitoring is “to preserve the security and orderly management of the institution and to protect the public.” Id. The reporting officer alleged that, during a monitored call, Petitioner asked the third-party to look up several people on Facebook, to contact one of the people through Facebook, to download some pictures from another profile, and to send the pictures to Petitioner. (Doc. 17-2 at 67, 71.) After a hearing, the Disciplinary Hearing Officer (DHO) found that Petitioner had committed the infraction. Id. at 67. The DHO punished Petitioner by disallowing twenty-seven days of good-conduct-time credit, placing Petitioner in disciplinary segregation for fifteen days, and losing phone access for 180 days. Id. at 68.
Petitioner alleges that he was punished for evading monitoring by utilizing social 24 media through a third party, which he contends is protected by the First Amendment. (Doc. 1 at 6.) Respondent argues Petitioner did not identify a protected activity under the First Amendment. (Doc. 17 at 4.) Further, Respondent asserts that allowing Petitioner's conduct “could threaten the secure and orderly operation of the institution and the protection of the public” and that the “discipline at issue here serves the legitimate penological and administrative interests of the prison and does not implicate Petitioner's First Amendment rights.” Id. at 33-34.
“A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017). The Supreme Court of the United States has identified cyberspace, particularly social media such as Facebook, as an important place to exchange views. Id. Further, the Court identified that social media allow members can participate in “a wide array of protected First Amendment activity.” Id. at 1735-36. Thus, there is a First Amendment interest in contacting people through Facebook, even via a third party, and the Court will consider the four factors from Turner.
Prisons may prevent inmates from evading monitoring of communications. The monitoring communications is rationally connected to security of the institution and the public, both of which are legitimate governmental interests. See Martinez, 416 U.S. at 412-13. It is unclear what alternatives remain open to Petitioner, but accommodating Petitioner in this way would greatly increase the work on guards or prison personnel. Further, the Ninth Circuit has upheld regulations against circumventing mail monitoring procedures under a more stringent standard. Strausbaugh v. Shartle, 793 Fed.Appx. 615, 615 (9th Cir. 2020). Thus, any impingement on Petitioner's First Amendment right is valid because it is “reasonably related to legitimate penological interests.” See Turner, 482 U.S. at 89.
Hence, Ground Three lacks merit and should be denied and dismissed. 25
RECOMMENDATION
The Court does not have jurisdiction over Petitioners claims concerning Incident Report No. 3156318 or the SHU claim in Ground Four. All but one of Petitioner's remaining claims were not exhausted. Further, Petitioner's claims lack merit. Accordingly, it is recommended that the district court, after its independent review, deny and dismiss the Petition.
Pursuant to 28 U.S.C. § 636(b)(1) and 72(b)(2), Fed. R. Civ. P., 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. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: 4:20-cv-00341-TUC-JAS. 26