Opinion
No. CV 19-0117-TUC-RCC (LAB)
10-17-2019
Salvatore Andretti, Petitioner, v. B. Von Blanckensee, Complex Warden Respondent.
REPORT AND RECOMMENDATION
Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241, filed on March 8, 2019. (Doc. 1) The petitioner, Salvatore Andretti, challenges the loss of 41 days of good-time credits after a prison disciplinary proceeding.
The respondent filed an answer opposing the petition on June 12, 2019. (Doc. 11) Andretti did not file a reply.
Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bowman for a Report and Recommendation. The petition should be denied on the merits. The disciplinary hearing did not violate due process.
Summary of the Case
Andretti was sentenced to an aggregate 384-month term of imprisonment for a series of offenses including armed bank robbery and possession of a firearm by a convicted felon. (Doc. 11, p. 15) He is currently confined in the U.S. Penitentiary in Tucson, Arizona. (Doc. 1)
In April of 2018, the Special Investigative Services (SIS) uncovered a conspiracy to smuggle drugs into the U.S. Penitentiary at Tucson, Arizona. (Doc. 1-1, p. 1) The investigators discovered that the drug Suboxone would be hidden inside envelopes and mailed to certain inmates, one of whom was an inmate referred to as "Old Man Sal." Id. That inmate was later identified as the petitioner, Salvatorre Andretti. Id. On April 25, 2018, investigators intercepted three pieces of incoming mail addressed to Andretti that each contained three strips of Suboxone. (Doc. 1-1, p. 1)
On May 17, 2018, SIS Technician A. Gallion prepared incident report number 3125722 which described the investigation and the interception of the drugs that had been mailed to Andretti. (Doc. 1-1, p. 1) The report charged Andretti with the attempted introduction of drugs into the facility and the use of the mails for an illegal purpose. Id. The report was delivered to Andretti on May 18, 2018. Id. The charge was sufficiently severe to be referred to the Disciplinary Hearing Officer (DHO).
The DHO conducted a hearing on June 26, 2018. (Doc. 1-1, p. 2) Andretti was advised of his rights, but he waived his right to staff representation and his right to call witnesses Id. He told the DHO, "I had a minor role." Id. The DHO found that Andretti violated Code 111A, attempted introduction of narcotics. (Doc. 1-1, p. 3) She based her findings on the description of the investigation in the incident report, documentary evidence, photographs, and Andretti's statement that he "had a minor role." (Doc. 1-1, pp. 3-4) The DHO sanctioned Andretti with a loss of 41 days of good conduct time, loss of visitation for 120 days, and loss of commissary for 120 days. Id.
Andretti appealed the DHO's decision to the Regional Administrator. (Doc. 1-1, p. 8) He argued that he did not receive the disciplinary report until almost 30 days after the completion of the investigation and that the evidence against him was insufficient. Id. He later appealed to the Central Office Administrator arguing additionally that he did not receive a timely response from the Regional Administrator. (Doc. 1-1, p. 9)
On March 8, 2019, Andretti filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. 2241 challenging this disciplinary action. (Doc. 1) He argues (1) he did not receive the incident report within 24 hours of the completion of the investigation, (2) he is innocent of the accusation because he had no idea drugs were going to be sent to him, and (3) his appeals were not processed in a timely manner. (Doc. 1)
The respondent filed an answer on June 12, 2019, in which she argues the petition should be denied on the merits. (Doc. 11) Andretti did not file a reply.
The court finds that the petition should be denied on the merits.
Discussion
"Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen." Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974 (1974). Nevertheless, prisoners do retain some constitutional rights concerning the procedures for administering prison discipline. Id. These rights are not as extensive as those due a defendant in a criminal proceeding, but they are not negligible. Id.
"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. Keeney, 831 F.2d 183, 186 (9 Cir. 1987), cert. denied, 487 U.S. 1207 (1988). "The inmate has a limited right to call witnesses and to present documentary evidence when permitting him to do so would not unduly threaten institutional safety and goals." Id.
The final decision to revoke good-time credits must be based on "some evidence." Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774 (1985). "The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56, 2774. If so, then due process is satisfied. Id. The court need not examine the entire record, independently assess the credibility of the witnesses, or weigh the evidence. Id. at 455, 2774.
In Claim (1), Andretti argues his due process rights were violated when he did not receive the incident report within 24 hours of the completion of the investigation. (Doc. 1) They were not.
The BOP's failure, assuming there was one, to give Andretti the incident report within 24 hours of the completion of the investigation does not violate due process. Due process only requires that prisoners be given notice of the charges and a reasonable opportunity to respond. Zimmerlee v. Keeney, 831 F.2d 183, 186 (9 Cir. 1987), cert. denied, 487 U.S. 1207 (1988). There is no due process right to receive an incident report within 24 hours of the completion of the investigation.
BOP regulations state that inmates will "ordinarily receive the incident report within 24 hours of staff becoming aware of [the inmate's] involvement in the incident." 28 C.F.R. s 541.5(a). The regulations state a goal, not a requirement, and certainly not a grant of due process rights. See also Armstrong v. Warden of USP Atwater, 2011 WL 2553266, at *8 (E.D.Cal. 2011) ("[A] violation of a BOP regulation, without more, does not rise to the level of a due process violation."); Hughes v. Quintana, 2013 WL 5350668, at *3 (C.D. Cal. 2013) (Failure to "present [prisoner] with charges within 24 hours of the conduct in violation of 28 C.F.R. s 541.5(a)" does not violate the Constitution.).
In Claim (2), Andretti argues he is innocent and had no idea the drugs were going to be mailed to him. (Doc. 1)
Due process requires only that there be some evidence to support the DHO's decision to find the prisoner responsible for the offense. Here, there was evidence of an ongoing conspiracy to mail drugs into the facility. (Doc. 1-1, p. 1) One of the conspirators stated that they were going to mail drugs to "Old Man Sal," which was determined to be Andretti. (Doc. 1-1, p. 1) It is unlikely in the extreme that the conspirators would send drugs to someone who was ignorant of the plan. Such a person could alert the authorities to the conspiracy or intercept the drugs for himself. Moreover, Andretti told the DHO that he "had a minor role." (Doc. 1-1, p. 2) "Some evidence" supported the DHO's decision to find that Andretti violated Code 111A, attempted introduction of narcotics. (Doc. 1-1, p. 3)
Andretti maintains that his confession to the DHO was coerced, but his allegations are entirely unsupported, not to mention far-fetched. (Doc. 1, p. 5) Andretti alleges that DHO Estrada needed him to be released from the Special Housing Unit (SHU) back to the general population and made a deal with him that he would plead guilty to a "minor role" in exchange for minimum penalties and a release from the SHU. He does not explain, however, why DHO Estrada needed him to be released from the SHU and why he had to plead guilty before she could release him. After all, the prison officials had overwhelming evidence of the conspiracy. They hardly needed his admission to find him responsible for the offense. It seems more likely that, when faced with the overwhelming evidence against him, Andretti confessed to a "minor role" in an attempt to mitigate his eventual penalty.
In Claim (3), Andretti argues his appeals were not processed in a timely manner in violation of his due process rights. (Doc. 1) Prisoners, however, do not have a due process right to any specific grievance procedure. Mann v. Adams, 855 F.2d 639, 640 (9 Cir.1988). Accordingly, the failure of the "Regional Office" or the "Central Office" to address his grievances within a specific deadline does not violate due process. See Laguana v. Ishizaki, 2006 WL 156955, at *4 (D. Guam 2006).
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition for writ of habeas corpus. (Doc. 1)
Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response.
DATED this 17 day of October, 2019.
/s/_________
Leslie A. Bowman
United States Magistrate Judge