Middleton v. Gutierrez

Full title: Montavis D. Middleton, Petitioner, v. M. Gutierrez,[1] Warden, Respondent.

Court: United States District Court, District of Arizona

Date published: Mar 16, 2023

CV-20-00131-TUC-DCB (BGM) (D. Ariz. Mar. 16, 2023)

Opinion

CV-20-00131-TUC-DCB (BGM)

03-16-2023

Montavis D. Middleton, Petitioner, v. M. Gutierrez,[1] Warden, Respondent.

Honorable Bruce G. Macdonald, United States Magistrate Judge

REPORT AND RECOMMENDATION

Honorable Bruce G. Macdonald, United States Magistrate Judge

Pending before the Court is Petitioner Motavis D. Middleton's pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Petition”) (Doc. 1). Respondent filed a Response to Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 11). No reply was filed by Petitioner.

This matter was referred to Magistrate Judge Bruce G. Macdonald for Report and Recommendation pursuant to 28 U.S.C. 636 and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (“LRCiv”). Order (Doc. 6.) The Magistrate Judge recommends that the District Court, after its independent review, dismiss the Petition (Doc. 1).

I. INTRODUCTION

Montavis D. Middleton (Middleton or Petitioner), Federal Register Number 97524004, has filed a Petition for Writ of Habeas Corpus challenging seven separate findings of guilt by various Discipline Hearing Officers (DHO) during years 2016 through 2020. Petitioner claims he was denied due process as to the following incident reports: 2813394, 2835304, 3058562, 3223020, 3269331, 3337922, and 3340656. Petitioner requests that the incident reports be expunged from his record. Separately, Petitioner alleges he has been held in the Special Housing Unit for nearly a year, in violation of due process. Specifically, he alleges he has not received periodic hearings as required by 28 CFR § 541.26 and Program Statement 5270.11.

II. PARTIES

Petitioner is serving a 321-month (26 years, 9 months) term of imprisonment as the result of his convictions for: 18 U.S.C. § 1951(A), Conspiracy to Interfere with Commerce by Threats or Violence by Robbery, and 18 U.S.C. § 924(C)(1)(A)(II), Possession of a Firearm in the Furtherance of a Crime of Violence. Petitioner is currently in custody of the BOP at the United States Penitentiary (USP) in Tucson, Arizona. His projected release date is August 7, 2035, presuming he earns all remaining available days of good conduct time. (Doc. 11-2).

III. PROCEDURAL PREREQUISITES

All habeas petitions pursuant to 28 U.S.C. § 2241 are subject to a judicially created exhaustion requirement. See e.g., Reno v. Koray, 515 U.S. 50, 54-55 (1995); Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds; Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The BOP has an available administrative remedy process, by which an inmate may appeal any aspect of their confinement. See 28 C.F.R. 542.10 et seq. In order to exhaust a DHO's decision, an inmate must properly file, within the rules governing the administrative remedy process, first with the Regional Director (BP-10), and then with the Office of General Counsel (BP-11). See id. For non-DHO matters, an inmate must first attempt informal resolution, then submit a request (BP-9) to the Warden, and then appeal at the BP-10 and BP11 levels. See id.

Petitioner claims to have exhausted his available administrative remedies regarding each of the seven challenged incident reports. However, throughout the entirety of Petitioner's incarceration, Middleton has filed a total of eleven administrative remedies with the Bureau of Prisons. (Doc. 11-2, Doc. 11-3.) Of these, only four concern findings of guilt by a DHO.

On June 14, 2018, the Western Regional Office received a BP-10 (944332-R1) appealing the DNO's finding of guilt in Incident Report No. 3118168. On July 23, 2018, the Regional Director issued a response finding that Petitioner had been afforded due process. Petitioner did not appeal the Regional Director's decision, and accordingly did not fully exhaust this appeal. (Doc. 11-3 at 9.) The incident report challenged in this BP-10 was not one of the incident reports currently being appealed by Petitioner.

On March 2, 2020, just two weeks before Petitioner signed and mailed the instant Petition, the Western Regional Office received a BP-10 (1009189-R1) appealing the DHO's finding of guilt in Incident Report No. 3340656 (this is one of the incident reports currently being appealed by Petitioner). On March 16, 2020, the Regional Director issued an explanatory response informing Petitioner that the DHO would rehear the Incident Report. (Doc. 11-3 at 12, Doc. 11-7 at 66). Petitioner was instructed that, after receipt of the final DHO Report, should he wish to further appeal he would need to file another BP-10, reinitiating the administrative remedy process. (Doc. 11-2, Doc. 11-7 at 66.)

Following the rehearing, Petitioner was issued a copy of the DHO's report on May 5, 2020. (Doc. 11-2, Doc. 11-7 at 6.) Several days later, on May 11, 2020, the Western Regional Office received Petitioner's BP-10 (1018834-R1) appealing the DHO's decision. (Doc. 11-3 at 13.) A second appeal (1023500-R1) was received on June 2, 2020. (Doc. 113 at 14.) The Western Region is currently reviewing these BP-10's, with responses due on July 10, 2020, and August 1, 2020. (Doc. 11-3 at 13-14). Once the Western Region issues a decision on these BP-10s, Petitioner will still need to appeal to the BP-11 level in order to fully exhaust his available administrative remedies. (Doc. 11-2 at 3).

Furthermore, Petitioner never filed an administrative remedy, at any level, challenging the DHO's decisions in any of the remaining six incident reports. (Doc. 11-2, Doc. 11-3). Similarly, he did not file any administrative remedy at any level alleging that he had been denied the right to attend SRO hearings while in SHU. Petitioner has failed to exhaust his available administrative remedies as to any of these claims.

IV. ARGUMENTS

A. Petitioner Has Failed to Demonstrate a Violation of the Constitution or Laws or Treaties of the United States

For relief to be granted under 28 U.S.C. § 2241, Petitioner must demonstrate that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2244(c)(3). It is well settled that “[a] necessary predicate for the granting of federal habeas relief [to a petitioner] is a determination by the federal court that [his or her] custody violates the Constitution, laws, or treaties of the United States.” Rose v. Hodges, 423 U.S. 19, 21 (1975) (citing 28 U.S.C. § 2241). Petitioner has not been denied due process regarding the ten cited incident reports, nor has he been denied due process with regard to his placement in the Special Housing Unit.

B. Petitioner Was Provided Due Process During The Disciplinary Process

Petitioner claims he was repeatedly denied due process when he was allegedly denied: 1. Access to documentary evidence relied upon by the DHO; 2. Exculpatory video recordings; 3. Exculpatory witnesses; 4. Opportunity to present documentary evidence; 5. Unbiased decision maker; 6. Opportunity to present evidence of retaliation by reporting staff; and 7. A psychological evaluation pursuant to 28 CFR § 541.6. (Doc. 1 at 4).

The standard for procedural due process in prison discipline was outlined in Wolff v. McDonnell, 418 U.S. 539 (1974). Wolff dictates five elements required for procedural due process in prison disciplinary cases: (1) written notice of the charged misconduct at least 24 hours before the hearing; (2) an impartial hearing body; (3) an opportunity to present witnesses and documentary evidence; (4) assistance for illiterate inmates or in complex cases; and (5) a written statement of the evidence relied upon and reasons for the sanction. As will be discussed below, each of these requirements has been met, and due process has been satisfied.

Regarding the impartial hearing body, “due process is satisfied as long as no member of the disciplinary board has been involved in the investigation or prosecution of the particular case, or has had any other form of personal involvement in the case.” Wolff, 418 U.S. at 592. Conversely, it is clearly established that a prison official who has participated in the case as an investigating or reviewing officer, or who has personal knowledge of the incident is not sufficiently impartial to preside over the hearing. Clutchette v. Procunier, 497 F.2d 809, 820 (9th Cir. 1974), modified, 510 F.2d 613, rev'd on other grounds, Baxter v. Palmigiano, 425 U.S. 308 (1976). The DHO records show that none of the six DHOs that heard Petitioner's seven incident reports was an investigating or reviewing officer, or had personal knowledge of the incident. Accordingly, Petitioner was provided impartial DHOs.

To the extent Petitioner alleges he was not evaluated under 28 C.F.R. § 541.6 prior to the commencement of the various disciplinary hearings, he makes no allegation that he “appear[ed] mentally ill at any stage of the discipline process” so as to trigger an evaluation under the regulation. See 28 C.F.R. § 541.6. However, even if he had made such an allegation, there simply is no recognized constitutional due process right to have a mental competency and responsibility examination before a prison disciplinary hearing commences. See Wolff, 418 U.S. at 563-72 (due process requires an inmate receive: 1) 24-hour advance notice of the charges against him; 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 he is illiterate or if the matter is complex; and 5) an impartial fact-finder).

In addition to the required elements of procedural due process as required by Wolff, the DHO's decision must also meet the evidentiary standard for due process. In order to withstand review, the DHO's decision need only be supported by some evidence upon which a reasonable impartial adjudicator could rely to find Petitioner guilty. Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 455 (1985). Internal prison disciplinary proceedings do not function in the same manner as criminal prosecutions. Inmates are not afforded the full “panoply” of rights as criminal defendants. Henderson v. United States Parole Commission, 13 F.3d 1073, 1077 (7th Cir.), cert. denied, 513 U.S. 926 (1994). There is no comparison between the amount of evidence needed to support a jury's guilty finding and that required for a prison disciplinary finding. Superintendent, 472 U.S. at 456. All that is necessary to uphold the latter is “some evidence from which the conclusion of the administrative tribunal could be deduced.” Id. at 455. A reviewing court should limit itself to this determination and should not “examin[e] the entire record, independently] assess[] the credibility of witnesses, or weigh[] the evidence.” Id. As long as there is “any evidence in the record that could support the conclusion reached by the disciplinary board,” the court's job is at an end. Id. at 455-56.

1. FCC Terre Haute Incident Reports

a. Incident Report 2813394

On February 7, 2016, at approximately 12:15 PM, Officer C. McCrary conducted a random cell search of the cell assigned to Petitioner, inmate Montavis Middleton, who was the only inmate assigned to this cell. Officer McCrary “found two 16.9oz water bottles containing a clear liquid. The contents of the bottles were tested with alco/sensor serial number 045984. The contents of bottle #1 tested with a positive reading of .612, bottle # 2 tested with a positive reading of .615. The bottles were located under the bottom bunk inside a clear plastic tote full of commissary items.” (Doc. 11-2, Doc. 11-3 at 19, 2813394.) Officer McCrary wrote an incident report charging Petitioner with a violation of Code 113, Possession of Alcohol.² Id.

2 28 C.F.R. § 541.8, Table 1.

On February 7, 2016, Lieutenant A. Clark delivered a copy of the incident report to Petitioner, providing him notice of the charge against him. (Doc. 11-3 at 19.) Middleton did not make a statement. (Doc. 11-3 at 20). Lieutenant Clark referred the charges to the Unit Disciplinary Committee (UDC). (Doc. 11-3 at 20.)

On February 11, 2016, the UDC convened to consider the charges against Petitioner. Regarding Petitioner's statement, the UDC recorded that he had no comment, and that he “chose to waive DHO.” (Doc. 11-3 at 19.) The UDC determined that the charge should be referred to the Discipline Hearing Officer (DHO) for a hearing. (Doc. 11-3 at 19.) The UDC informed Petitioner of his rights before the DHO. (Doc. 11-3 at 21.) Petitioner waived his right to a staff representative, and to call witnesses. (Doc. 11-3 at 22.) He also waived his right to appear at the DHO hearing. (Doc. 11-3 at 23.)

On February 18, 2016, DHO D. Ezekiel held a hearing. Because Petitioner had waived his right to attend the hearing, he did not make a statement or present any evidence in his defense. (Doc. 11-3 at 16.) The DHO considered the written statement of the reporting officer, which indicated the officer had found two bottles in Petitioner's cell containing a clear liquid which tested positive for alcohol. (Doc. 11-3 at 17.) Taking into consideration this evidence, the DHO found that Petitioner committed the prohibited act, and sanctioned Petitioner with the disallowance of 41 days Good Conduct Time (GCT), 120 days loss of Mp3 player privileges, 120 days loss of telephone privileges, and a $100 monetary fine. (Doc. 11-3 at 17.) On February 22, 2016, the DHO completed and signed the report of his findings. (Doc. 11-3 at 18.) A copy of the DHO Report was delivered to Petitioner on April 14, 2016. (Doc. 11-3 at 18.)

Petitioner was provided due process. Written notice was provided to Petitioner on February 7, 2016, well over 24 hours before the DHO's hearing on February 18, 2016 (Doc. 11-2, Doc. 11-3 at 16.) The hearing was conducted by an impartial DHO, D. Ezekiel. (Doc. 11-3 at 16-18.) Petitioner waived his right to request a staff representative, and to call witnesses. (Doc. 11-3 at 16, 22.) He also waived his right to attend the hearing, where he would have had the opportunity to present evidence in his defense. (Doc. 11-3 at 16, 23.) He did not offer any documentation in his defense, or request the review of any video evidence. (Doc. 11-3 at 16-18.) On April 14, 2016, Petitioner was provided a copy of the DHO's report, which contained a written statement of what evidence was relied upon and the reasons for the sanctions. (Doc. 11-3 at 18.)

Petitioner was accordingly provided each of the required elements of procedural due process as required by Wolff. The only remaining issue is whether the DHO's decision met the “some evidence” evidentiary standard for due process. Superintendent, 472 U.S. at 455.

The record of Petitioner's DHO proceeding demonstrates some evidence of Petitioner's guilt. The DHO relied on the statement of Officer McCrary, who found the alcohol in Petitioner's cell, and tested it using the Alco sensor, identifying the contents of the bottles as containing alcohol. (Doc. 11-2, Doc. 11-3 at 17, 19.) Officer McCrary's statement that the bottles containing the alcohol were found in the common area of Petitioner's cell is some evidence that Petitioner possessed the alcohol. See, e.g., Murphy v. Schroeder, 305 Fed.Appx. 329 (9th Cir. 2008) (“discovery of the weapon in Murphy's cell was “some evidence” to support the disciplinary actions.”); Rosser v. Cate, 2012 WL 17077 (S.D. Cal. Jan. 19, 2012) (“that an inmate-manufactured weapon was found hidden in a book belonging to Petitioner's cell mate, in Petitioner's cell, is sufficient to support a finding of guilt for the charged offense under the ‘some evidence' standard.”), upheld by Rosser v. Cate, 490 Fed.App'x 77 (9th Cir. 2013) (“The finding that an altered razor blade was found in Rosser's cell constituted ‘some evidence' in support of the conclusion that Rosser was guilty”); Urciuoli v. Gutierrez, 2012 WL 2449909, *6 (C.D. Cal. May 1, 2012) (cell phone found hidden in light fixture of inmate's cell was in the inmate's “constructive possession, i.e., he possessed the cell phone based on the fact it was found in his cell that he shared with another prisoner”), citing Hamilton v. O'Leary, 976 F.2d 341, 346 (7th Cir. 1992) (where weapons were found in a cell that housed the plaintiff and three other inmates, the “some evidence” standard was met).

The DHO's decision was clearly supported by some evidence upon which a reasonable impartial adjudicator could rely to find Petitioner guilty. Accordingly, the DHO's decision that Petitioner committed the offense of possession of alcohol is upheld.

b. Incident Report 2835304

On April 5, 2016, at approximately 7:30 a.m., BOP staff at FCC Terre Haute announced over the radio that there was a fight ongoing within the dining hall:

[A] review of the NiceVision CCTV System showed, at approximately 7:29 a.m., a group of inmates were seen standing near the exit door #3 of the dining hall. The inmates were identified as [REDACTED], Montavis Middleton #97524-004, [REDACTED], [REDACTED], [REDACTED] and [REDACTED]. The inmates appeared to be having an animated discussion. At approximately 7:30 a.m., inmate Middleton strikes inmate [REDACTED] in the upper torso/facial area with his closed right fist. Inmate [REDACTED] backs away with inmates [REDACTED], Middleton, [REDACTED], [REDACTED] in pursuit. Inmate [REDACTED] was standing along the wall, behind inmate [REDACTED] and joins the other inmates and is seen striking inmate [REDACTED] with a closed right fist to the head. Inmate [REDACTED] also follows inmate Middleton and is seen striking with a closed right fist to inmate [REDACTED]'s head area. Inmate [REDACTED] is seen continuing to back away from the other inmates. As this incident was in progress, inmate [REDACTED] seen close to the incident and it appeared he was acting as a lookout.

(Doc. 11-2, Doc. 11-3 at 29, 2835304.) Cook Foreman J. Wheeler wrote an incident report charging Petitioner with a violation of Code 224, Assault. Id.

On April 5, 2016, Lieutenant C.T. Wingerd delivered a copy of the incident report to Petitioner, providing him notice of the charge against him. DHO proceedings did not occur at that time, however, while the U.S. Attorney's Office considered whether to prosecute Petitioner and the other inmates involved in this assault. (Doc. 11-3 at 7-9.)

On May 12, 2016, after the U.S. Attorney's Office declined to prosecute, Lieutenant J. Timcheck delivered another copy of the incident report to Petitioner, again providing him notice of the charge against him. (Doc. 11-3 at 29.) Middleton did not make a statement at this time, and did not elect to present any witnesses. (Doc. 11-3 at 30.) Lieutenant Timcheck referred the charges to the UDC. (Doc. 11-3 at 30.)

On May 19, 2016, the UDC convened to consider the charges against Petitioner. Petitioner declined to make a statement before the UDC. (Doc. 11-3 at 29.) The UDC determined that the charge should be referred to the DHO for a hearing. Id. The UDC informed Petitioner of his rights before the DHO. (Doc. 11-3 at 35.) Petitioner waived his right to a staff representative, and to call witnesses. (Doc. 11-3 at 36.)

On July 7, 2016, DHO D. Ezekiel held a hearing. Petitioner was given the opportunity to present evidence, but declined to make any statement, or to submit any evidence in his defense. (Doc. 11-3 at 26-27.) The DHO considered the written statement of the reporting officer describing the video evidence, stating that “Middleton is observed striking inmate [REDACTED] in the upper torso/facial areas with a closed right fist.” (Doc. 11-3 at 27.) The DHO also considered a supporting memorandum from Lt. C. Wingerd, again indicating that “Middleton was observed striking inmate [G] in the upper torso/facial area with a closed right fist,” as well as medical records and photographs documenting Petitioner's involvement in the incident. (Doc. 11-3 at 27.) Based on this evidence, the DHO found Petitioner guilty, and sanctioned him with the disallowance of 27 days GCT, 60 days loss of commissary privileges, and 60 days loss of telephone privileges. (Doc. 113 at 27.) On July 11, 2016, the DHO completed and signed the report of his findings. (Doc. 11-3 at 28.) A copy of the DHO Report was delivered to Petitioner on July 13, 2016. Id.

Petitioner was provided due process. Written notice was provided to Petitioner on April 5, 2016, and again on May 12, 2016, well over 24 hours before his appearance before the DHO on July 7, 2016. (Doc. 11-2, Doc. 11-3 at 26.) The hearing was conducted by an impartial DHO, D. Ezequiel. (Doc. 11-3 at 26-28.) Petitioner waived his right to request a staff representative, and to call witnesses. (Doc. 11-3 at 26, 36.) Petitioner had the opportunity to present evidence in his defense, but he declined to do so. (Doc. 11-3 at 26.) He did not offer any documentation in his defense, or request the review of any video evidence. (Doc. 11-3 at 26-28.) On July 13, 2016, Petitioner was provided a copy of the DHO's report which contained a written statement of what evidence was relied upon and the reasons for the sanctions. (Doc. 11-3 at 28.)

Petitioner was accordingly provided each of the required elements of procedural due process as required by Wolff. The only remaining issue is whether the DHO's decision met the “some evidence” evidentiary standard for due process. Superintendent, 472 U.S. at 455.

The record of Petitioner's DHO proceeding demonstrates some evidence of Petitioner's guilt. The DHO relied on the statements of Cook Foreman J. Wheeler, and Lieutenant C. Wingerd, describing video evidence of Petitioner “striking inmate [REDACTED] in the upper torso/facial area with a closed right fist.” (Doc. 11-2, Doc. 113 at 27.) The DHO's decision was clearly supported by some evidence upon which a reasonable impartial adjudicator could rely to find Petitioner guilty. Accordingly, the DHO's decision that Petitioner committed the offense of assault is upheld.

2. USP Pollock Incident Report

a. Incident Report 3058562

On November 20, 2017, at approximately 10:20 AM, while Petitioner was housed in the SHU at USP Pollock, Senior Officer Specialist M. Porter “advised [inmate] Middleton #97524- 004 that he would be returning to general population. Inmate Middleton stated he did not wish to go to general population. [Officer Porter] then gave [Middleton] a direct verbal order to submit to hand restraints and return to general population and he again refused.” (Doc. 11-2, Doc. 11-3 at 60, 3058562.) Officer Porter wrote an incident report charging Petitioner with a violation of Code 306, Refusing Programs. (Doc. 11-3 at 60.)³

3 The official name for this charge is: “Refusing to work or to accept a program assignment.” 28 C.F.R. § 541.8, Table 1.

Later that morning, at approximately 12:00 PM, Lieutenant P. Odhiambo delivered a copy of the incident report to Petitioner, providing him notice of the charge against him. (Doc. 11-3 at 60.) Middleton made the following statement: “No Comment.” (Doc. 11-3 at 61.) Lieutenant Odhiambo referred the charges to the UDC. See id. On November 21, 2017, the UDC convened to consider the charges against Petitioner. Regarding Petitioner's statement, the UDC recorded: “No Comment.” (Doc. 11-3 at 60.) The UDC determined that the charge should be referred to the DHO for a hearing. Id. The UDC informed Petitioner of his rights before the DHO. (Doc. 11-3 at 63.) Petitioner waived his right to a staff representative, and to call witnesses. (Doc. 11-3 at 62.)

On November 29, 2017, DHO B. Valle held a hearing. Petitioner was given the opportunity to present evidence, and made the following statement: “I am not going out,” which the DHO construed as an admission that Petitioner was refusing to be reassigned to general population. (Doc. 11-3 at 58.) In addition to Petitioner's statement, the DHO also considered the written statement of the reporting officer, as well as an investigative report indicating there was no verifiable threat to Middleton's safety in general population. (Doc. 11-3 at 59.) Taking into consideration this evidence, the DHO found that Petitioner committed the prohibited act, and noted that “refusing work/program assignments disrupts the orderly operation of the institution....” Id. The DHO sanctioned Petitioner with the disallowance of 14 days GCT, 60 days loss of email privileges, and 60 days loss of visiting privileges. (Doc. 11-3 at 59.) On December 4, 2017, the DHO completed and signed the report of her findings. (Doc. 11-3 at 59.) A copy of the DHO Report was delivered to Petitioner the following morning, on December 5, 2017. (Doc. 11-3 at 59.)

Petitioner was provided due process. Written notice was provided to Petitioner on November 20, 2017, well over 24 hours before his appearance before the DHO on November 29, 2017. (Doc. 11-3 at 58.) The hearing was conducted by an impartial DHO, B. Valle. (Doc. 11-3 at 59-60.) Petitioner waived his right to request a staff representative, and to call witnesses. (Doc. 11-3 at 58, 62.) Petitioner had the opportunity to present evidence in his defense; his statement was reflected in the record: “I am not going out.” (Doc. 11-3 at 58-59.) He did not offer any documentation in his defense, or request the review of any video evidence. Id. On December 5, 2017, Petitioner was provided a copy of the DHO's report which contained a written statement of what evidence was relied upon and the reasons for the sanctions. (Doc. 11-3 at 59.)

Petitioner was accordingly provided each of the required elements of procedural due process as required by Wolff. The only remaining issue is whether the DHO's decision met the “some evidence” evidentiary standard for due process. Superintendent, 472 U.S. at 455.

The record of Petitioner's DHO proceeding demonstrates some evidence of Petitioner's guilt. The DHO relied on the Petitioner's admission, the statement of Officer Porter, and an investigative report indicating there was no threat to Petitioner in general population. (Doc. 11-2, Doc. 11-3 at 59.) The DHO's decision was clearly supported by some evidence upon which a reasonable impartial adjudicator could rely to find Petitioner guilty of refusing to accept a program assignment, specifically assignment to general population. Accordingly, the DHO's decision that Petitioner violated Code 306 is upheld.

3. USP Tucson Incident Reports

a. Incident Report 3223020

On February 11, 2019, at approximately 2:00 PM, Special Investigative Services (SIS) Tech. A. Gallion concluded an investigation into the attempted introduction of contraband into USP Tucson. (Doc. 11-2, Doc. 11-4 at 6-8, 3223020.) The investigator concluded that Petitioner had conspired with two people in the community to “introduce K-2 soaked paper into the institution through the U.S. Mail.” (Doc. 11-4 at 8.) Specifically:

[I]nmate Middleton created a plan to introduce contraband K-2 soaked paper into the institution during a 1½ hour visit on 1/1/2019 with [REDACTED]. Immediately after the visit inmate Middleton began utilizing his personal phone account to direct [REDACTED] and [REDACTED] to send in paper saturated with K-2 synthetic drugs through the U.S. mail. In numerous phone calls with the phone numbers [REDACTED], which is the number used by [REDACTED] and [REDACTED], which is the number used by [REDACTED], they used coded conversation to discuss the movement of money that was used to purchase the K2 and had been received as payment for the K-2 once it arrived at the institution. Once the money was gathered and the plan was set inmate Middleton utilized another inmate identified during this investigation as [REDACTED], to send out a letter certified to [REDACTED] so he would know who to send the contraband letter containing the K-2 soaked paper to. Approximately 2 weeks after the certified letter was sent out inmate [REDACTED] received an incoming letter from “Florida” containing several pictures with a “fisherman” on them. He turned the mail over to inmate Middleton and received stamps as payment for receiving the mail.

(Doc. 11-4 at 8.) The investigator also included descriptions of various telephone conversations, wherein Petitioner and his co-conspirators discussed in code the introduction of drugs into the facility. (Doc. 11-4 at 8.)

While the investigation was ongoing, on January 28, 2019, Petitioner sent a letter to Officer Gallion in which he confessed his guilt: “[I]f you let me back on USP Tucson yard I give you my word I'm done dealing with K-2 and trying to introduce K-2 into the prison.” (Doc. 11-4 at 23.) He then detailed the acts he took in furtherance of this offense. (Doc. 11-4 at 23-25.)

On February 11, 2019, upon conclusion of his investigation, Officer Gallion wrote an incident report charging Petitioner with a violation of Codes 111A, Attempted Introduction of Contraband; 197, Use of the phone from criminal activity; 196, Use of email for criminal activity; and 217, Giving or receiving money for the purpose of introduction (of contraband). (Doc. 11-4 at 6-8.)

Later that afternoon, Lieutenant D. Campbell delivered a copy of the incident report to Petitioner, providing him notice of the charge against him. (Doc. 11-4 at 7, 10.) Middleton declined to make a statement at that time. (Doc. 11-4 at 10.) Lieutenant Campbell referred the charges to the UDC. (Doc. 11-4 at 10.)

On February 13, 2019, the UDC convened to consider the charges against Petitioner. Regarding Petitioner's statement, the UDC recorded: “None.” (Doc. 11-4 at 7.) The UDC determined that the charge should be referred to the DHO for a hearing. Id. The UDC informed Petitioner of his rights before the DHO. (Doc. 11-5 at 22.) Petitioner waived his right to a staff representative, and to call witnesses. (Doc. 11-5 at 23.)

On March 12, 2019, DHO C. Cole held a hearing. Petitioner was given the opportunity to present evidence; the DHO documented that Inmate Middleton made the following statement to the DHO: “I'm guilty.” (Doc. 11-4 at 2.) In addition to Petitioner's confession, the DHO also considered the written statement of the reporting officer, as well as his written investigation, which contained detailed information about Petitioner's conspiracy. (Doc. 11-4 at 3, 5.) Taking into consideration this evidence, the DHO found that Petitioner violated codes 111A, 197 and 217. Petitioner was sanctioned as follows: For the violation of Code 111A, the DHO sanctioned Petitioner with the disallowance of 21 days GCT, the forfeiture of 20 days non-vested GCT, 30 days disciplinary segregation, 180 days loss of commissary privileges, and 180 loss of visitation privileges. (Doc. 11-4 at 4.) For the violation of Code 197, the DHO sanctioned Petitioner with the disallowance of 21 days GCT, the forfeiture of 20 days non-vested GCT, and 180 loss of telephone privileges. Id. For the violation of Code 217, the DHO sanctioned Petitioner with the disallowance of 27 days GCT, and 90 loss of commissary privileges. Id. On April 26, 2019, the DHO completed and signed the report of his findings. (Doc. 11-4 at 5.) A copy of the DHO Report was delivered to Petitioner on April 29, 2019. (Doc. 11-4 at 5.)

Petitioner was provided due process. Written notice was provided to Petitioner on February 11, 2019, well over 24 hours before his appearance before the DHO on March 12, 2019. (Doc. 11-4 at 2.) The hearing was conducted by an impartial DHO, C. Cole. (Doc. 11-4 at 2-5.) Petitioner waived his right to request a staff representative, and to call witnesses. (Doc. 11-4 at 2, Doc. 11-5 at 23.) Petitioner had the opportunity to present evidence in his defense; his admission of guilt was reflected in the record. (Doc. 11-4 at 2.) He did not offer any documentation in his defense, or request the review of any video evidence. (Doc. 11-4 at 2-5.). On April 29, 2019, Petitioner was provided a copy of the DHO's report which contained a written statement of what evidence was relied upon and the reasons for the sanctions. (Doc. 11-4 at 5.)

Petitioner was provided each of the required elements of procedural due process as required by Wolff. The only remaining issue is whether the DHO's decision met the “some evidence” evidentiary standard for due process. Superintendent, 472 U.S. at 455.

The record of Petitioner's DHO proceeding demonstrates some evidence of Petitioner's guilt. The DHO relied on the written statement of the reporting officer, and his written investigation, which contained detailed information about Petitioner's conspiracy. (Doc. 11-2, Doc. 11-4 at 2-5.) The record also contains Petitioner's admission of guilt. (Doc. 11-4 at 2.) The DHO's decision was clearly supported by some evidence upon which a reasonable impartial adjudicator could rely to find Petitioner guilty. Accordingly, the DHO's decision that Petitioner violated codes 111A, 197 and 217 is upheld.

b. Incident Report 3269331

On June 18, 2019, at approximately 7:38 PM, Officer A. Aispuro “witnessed inmates [REDACTED] and Middleton Reg. 97524-004 fighting with closed fist and striking each other in the face and upper torso area in the soccer field near C-2 Housing Unit.... Soon after, additional officers arrived and ordered both inmates to stop fighting. Inmates [REDACTED] and Middleton Reg. 97524-004 immediately complied and laid on the ground.” (Doc. 11-2, Doc. 11-6 at 6, 3269331.) Officer Aispuro wrote an incident report charging Petitioner with a violation of Code 201, Fighting. (Doc. 11-6 at 6.)

On July 18, 2019, Lieutenant L. Ybarra delivered a copy of the incident report to Petitioner, providing him notice of the charge against him. Id. Middleton stated “No Comment.” (Doc. 11-6 at 8.) Lieutenant Ybarra referred the charges to the UDC. Id.

On July 19, 2019, the UDC convened to consider the charges against Petitioner. Regarding Petitioner's statement, the UDC recorded: “No Comment.” (Doc. 11-6 at 7.) The UDC determined that the charge should be referred to the DHO for a hearing. Id. The UDC informed Petitioner of his rights before the DHO. (Doc. 11-6 at 9.) Petitioner waived his right to a staff representative, and to call witnesses. (Doc. 11-6 at 10.) On August 7, 2019, DHO A. Torres held a hearing. Petitioner was given the opportunity to present evidence. He admitted the conduct, and stated: “I'm guilty for fighting.” (Doc. 11-6 at 34.) In addition to Petitioner's statements, the DHO also considered the written statement of the reporting officer, that he witnessed Petitioner and another inmates “fighting with closed fist and striking each other in the face and upper torso area....” (Doc. 11-6 at 3-4.) Taking into consideration this evidence, the DHO found that Petitioner committed the prohibited act, and sanctioned Petitioner with the disallowance of 27 days GCT, 90 days loss of telephone privileges, and 90 days loss of commissary privileges. (Doc. 11-6 at 4.) On August 20, 2019, the DHO completed and signed the report of his findings. Id. A copy of the DHO Report was delivered to Petitioner on August 23, 2018. Id.

As demonstrated by the record, Petitioner was provided due process. Written notice was provided to Petitioner on July 18, 2019, well over 24 hours before his appearance before the DHO on August 7, 2019. (Doc. 11-6 at 2.) The hearing was conducted by an impartial DHO, A. Torres. (Doc. 11-6 at 2-4.) Petitioner waived his right to request a staff representative, and to call witnesses. (Doc. 11-6 at 2, 10.) Petitioner had the opportunity to present evidence in his defense; his statement was reflected in the record: “I'm guilty for fighting.” (Doc. 11-6 at 3-4.) He did not offer any documentation in his defense, or request the review of any video evidence. (Doc. 11-6 at 3-5.) On August 23, 2019, just over two weeks after the DHO hearing was held, Petitioner was provided a copy of the DHO's report which contained a written statement of what evidence was relied upon and the reasons for the sanctions. (Doc. 11-6 at 4.)

Petitioner was provided each of the required elements of procedural due process as required by Wolff. The only remaining issue is whether the DHO's decision met the “some evidence” evidentiary standard for due process. Superintendent, 472 U.S. at 455.

The record of Petitioner's DHO proceeding demonstrates some evidence of Petitioner's guilt. The DHO relied on Petitioner's admission of guilty, as well as the eye witness statement of Officer Aispuro who witnessed Petitioner fighting with another inmates. (Doc. 11-2, Doc. 11-6 at 3-5.) The DHO's decision was clearly supported by some evidence upon which a reasonable impartial adjudicator could rely to find Petitioner guilty. Accordingly, the DHO's decision that Petitioner committed the offense of fighting is upheld.

c. Incident Report 3337922

Federal inmates are allowed to correspond with other inmates only when explicitly approved to do so by the Wardens at both inmates' facilities. See 28 C.F.R. § 540.17 et seq. “Such correspondence... must always be inspected and read by staff at the sending and receiving institutions..” 28 C.F.R. § 540.17(a).

On December 9, 2019, at approximately 9:10 AM, SIS Tech. A. Cristinzio reviewed a piece of Petitioner's outgoing mail. Within a letter addressed to a family member in the community, Petitioner included another letter, intended to be forwarded by the family member to another federal inmate. Petitioner provided the following instructions to the family member:

Do me a favor here is another letter can you put it to the side till my home boy [REDACTED] get his address and send it to him for me ok and he should have a letter for me that why I'm sending you this self address envelope with a stamp on it so you can just his letter in it and seal it.. This the address mail it off - ok, [REDACTED], FCI Petersburg, P.O. Box 1000, Petersburg, VA 23804.

(Doc. 11-2, Doc. 11-6 at 25, 3337922.) Officer Cristinzio further found that the letter that was intended for the other inmate discussed sending letters back and forth via the family member. (Doc. 11-6 at 25.) The letter specifically says: “Yeah, hopefully your property come soon so you can send me some of them pictures.. Don't forget to write back to my [REDACTED]'s address ok..” (Doc. 11-6 at 31-32.) He also wrote: “Please send my [REDACTED] them pics if you got your property yet and I'm down bad with $$ cash right now but once I get str-8 I got you. promise.” (Doc. 11-6 at 31.) The intent of this action was clear: to send and receive mail to and from another federal inmate without the required approval and monitoring.⁴ Officer Cristinzio wrote an incident report charging Petitioner with a violation of Code 296, Use of the mail for abuses other than criminal activity which circumvent mail monitoring procedures. (Doc. 11-6 at 5.)

4 This mail apparently was to include “pictures” from the other inmate's property. As noted above, Petitioner has a history of smuggling drugs into prison facilities by having pictures soaked with drugs.

Later that day, at about 12:05 PM, Lieutenant J. Ulrich delivered a copy of the incident report to Petitioner, providing him notice of the charge against him. Id. Middleton declined to make a statement at that time. (Doc. 11-6 at 27.) Lieutenant Ulrich referred the charges to the UDC. (Doc. 11-6 at 26.)

A couple hours later, at approximately 2:10 PM, the UDC convened to consider the charges against Petitioner. Petitioner made the following statement: “Guilty.” (Doc. 11-6 at 26.) The UDC determined that the charge should be referred to the DHO for a hearing. Id. The UDC informed Petitioner of his rights before the DHO. (Doc. 11-6 at 35.) Petitioner waived his right to a staff representative, and to call witnesses. (Doc. 11-6 at 36.)

On December 12, 2019, DHO M. Diaz held a hearing. Petitioner was given the opportunity to present evidence. He admitted the conduct, stating: “Guilty.” (Doc. 11-6 at 21.) In addition to Petitioner's admission of guilt, the DHO also considered the written statement of the reporting officer, and photocopies of the letters from Petitioner seeking to mail and receive letters from another inmate[s] through his family member in the community. (Doc. 11-6 at 22-23, 28-34.) Taking into consideration this evidence, the DHO found that Petitioner committed the prohibited act, and sanctioned Petitioner with the disallowance of 27 days GCT, 7 days disciplinary segregation, and 120 days loss of email privileges. (Doc. 11-6 at 23.) On December 26, 2019, the DHO completed and signed the report of her findings. (Doc. 11-6 at 24.) A copy of the DHO Report was delivered to Petitioner on December 27, 2019. Id.

As demonstrated by the record, Petitioner was provided due process. Written notice was provided to Petitioner on December 9, 2019, well over 24 hours before his appearance before the DHO on December 12, 2019. (Doc. 11-6 at 21.) The hearing was conducted by an impartial DHO, M. Diaz. (Doc. 11-6 at 21-23.) Petitioner waived his right to request a staff representative, and to call witnesses. (Doc. 11-6 at 21, 36.) Petitioner had the opportunity to present evidence in his defense; his statement is reflected in the record: “Guilty.” (Doc. 11-6 at 21.) He did not offer any documentation in his defense, or request the review of any video evidence. (Doc. 11-6 at 21-23.) On December 27, 2019, Petitioner was provided a copy of the DHO's report which contained a written statement of what evidence was relied upon and the reasons for the sanctions. (Doc. 11-6 at 24.)

Petitioner was provided each of the required elements of procedural due process as required by Wolff. The only remaining issue is whether the DHO's decision met the “some evidence” evidentiary standard for due process. Superintendent, 472 U.S. at 445.

The record of Petitioner's DHO proceeding demonstrates some evidence of Petitioner's guilt. The DHO relied on Petitioner's admission of guilt, the statement of the reporting officer, and the actual letter written and mailed by Petitioner, in which he instructed his family member to forward mail to and from another inmate on his behalf. (Doc. 11-2, Doc. 11-6 at 22-23, 29-33.) The DHO's decision was clearly supported by some evidence upon which a reasonable impartial adjudicator could rely to find Petitioner guilty. Accordingly, the DHO's decision that Petitioner committed the offense of Mail Abuse is upheld.

d. Incident Report 3340656

On December 16, 2019, at approximately 8:00 AM, SIS Tech. A. Gallion concluded an investigation into the attempted introduction of contraband into USP Tucson. In addition to evidence including telephone calls, emails, and mail, Officer Gallion also obtained a signed, written confession:

I was trying to introduce K-2 soaked paper into the prison Tucson

Arizona by sending my homeboy that's on the streets some legal mail from a real case and have him copy the same legal mail and print it on some K-2 soaked paper and then send it back in thru legal mail then I used another inmate email to write my sister and cuzzin to holla at my homeboy and asked him did he get my mail but he aint never get it because the address was wrong so it got return to sender then I was sending my homeboy the photo donkey/phone donkey paper so he can recopy it and put it on some K-2 soaked paper then send it back in but it never made it to him.

(Doc. 11-2, Doc. 11-7 at 59, 3340656.) Based on this investigation, Officer Gallion wrote an incident report charging Petitioner with a violation of Code 111A, Attempted Introduction of Drugs, and Code 199, Disruptive Conduct, most like Code 196, Use of the mail for an illegal purpose or to commit or further a Greatest category prohibited act. (Doc. 11-7 at 11.)

After the disciplinary process was completed, Petitioner appealed the DHO's findings by filing a BP-10 (1009189-R1). On March 16, 2020, the Regional Director issued a response indicating that the DHO would rehear this incident report, and that the incident report was therefore pending re-processing. Petitioner was also informed that he would be allowed to appeal any new DHO report which might be issued after the rehearing by filing a new BP-10 and beginning the appeals process anew. (Doc. 11-7 at 12.)

On March 17, 2020, SIS Lieutenant Gallion⁵ completed a re-write of this incident report. (Doc. 11-2, Doc. 11-7 at 61.) Lieutenant Gallion again charged Petitioner with a violation of Code 111A, Attempted Introduction of Drugs, and Code 199, Disruptive Conduct, most like Code 196, Use of the mail for an illegal purpose or to commit or further a Greatest category prohibited act:

5 Officer Gallion was promoted from SIS Tech to SIS Lieutenant.

Inmate Montavis Middleton, Reg. No. 97524-004, conspired with several individuals in the community to include [REDACTED], [REDACTED] and a former BOP inmate identified as [REDACTED], also referred to as Big Bruh to introduce K-2 soaked paper into the institution through the U.S. Mail. Specifically, inmate Middleton created a plan similar to a previous one involving the same people ([REDACTED] and [REDACTED]) to introduce contraband (K2 soaked paper) into the institution during several phone calls and emails with [REDACTED], [REDACTED] and [REDACTED] who was referred to in the plan as Big Bruh. In the calls, inmate Middleton began utilizing several other inmates' phone accounts due to him being on phone restriction to include inmates [REDACTED], [REDACTED], [REDACTED], [REDACTED] to discuss the drug introduction scheme. The phone numbers and email addresses utilized during the drug introduction scheme were as follows: [REDACTED] used the phone number [REDACTED], [REDACTED] used the phone number [REDACTED] and email address: [REDACTED], [REDACTED] Big Bruh used the phone number [REDACTED] and email address: [REDACTED]. In a phone call placed on 11/30/2019 at 9:10 a.m. to the number [REDACTED], inmate Middleton who used the phone account of inmate [REDACTED] told the outside person states it is lil brah and that he is the one that has been sending the emails. Inmate Middleton then talks about making money and for the outside person to look into it and then brings up a mailing address with 51st street in it. The phone communication and emails were used to confirm if Big Bruh [REDACTED] had received the mail that inmate Middleton had send out through documented certified mail through another inmate identified as [REDACTED], on 11/19/2019 to the address [REDACTED] which is directly connected to [REDACTED]. The mail was sent out certified with tracking number [REDACTED], so inmate Middleton could track the mail. Additionally, the name written on the mail was [REDACTED] which was referenced in an email written by inmate Middleton on 11/30/2019 at 9:34 a.m. while using the email account of inmate [REDACTED]. In that email, inmate Middleton wrote, “What up big brah, this is lil brah when you check your mail box it say ur cuzzin name [REDACTED] so you won't be confused.” Once the mail had arrived, it was known by the parties involved ([REDACTED]) due to his active involvement in the first drug introduction scheme (TCP-19-0072) that he would copy the same documents on paper saturated with K-2 synthetic drugs and return it to the same name through the U.S. mail. However, the mail that was sent by inmate Middleton through [REDACTED] was returned to the Institution, Return to Sender, due to an issue with the address on 12/3/2019. Additionally, it should be noted during an interview on 12/9/2019 pertaining to this investigation, inmate Middleton provided a handwritten statement admitting to his plans to introduce K2 soaked paper into the institution through U.S. Mail. Inmate Middleton also

admitted to misusing other inmates' emails and phone accounts to ensure things were going as planned.

(Doc. 11-7 at 7-8.) Later that evening, Lieutenant A. Bernard delivered a copy of the incident report to Petitioner, providing him notice of the updated charges against him. (Doc. 11-7 at 10.) Middleton declined to make a statement at that time. (Doc. 11-7 at 10.) Lieutenant Bernard referred the charges to the UDC. Id.

On March 19, 2020, the UDC convened to consider the charges against Petitioner. Petitioner made the following statement: “Not guilty. This is double jeopardy.” (Doc. 117 at 9.) The UDC determined that the charge should again be referred to the DHO for a hearing. (Doc. 11-7 at 11.) The UDC informed Petitioner of his rights before the DHO. (Doc. 11-7 at 29.) Petitioner waived his right to call witnesses, but requested a staff representative. (Doc. 11-7 at 30.) Per his request, Ms. M. Mack was assigned as staff representative. (Doc. 11-7 at 30.)

On March 24, 2020, the DHO, A. Estrada, held a hearing and found Petitioner guilty of violating Code 111A, Attempted/Aiding Introduction of drugs. Petitioner's staff representative appeared via the telephone, and made the following statement: “From reading the incident report and looking at the evidence, the evidence is there to support the incident report. Due process was properly followed.” (Doc 11-7 at 1.) Petitioner was given the opportunity to present evidence, and made the following statement: “Not guilty.” (Doc. 11-7 at 2.) He also said: “Listen, I didn't try to introduce no drugs.” (Doc. 11-7 at 4.) The record further reflects that Petitioner submitted a written statement to the DHO arguing that he was not guilty. (Doc. 11-7 at 62-63.) In response to Petitioner's denial of guilt, the DHO asked Petitioner about his detailed, written admission of guilt, dated December 9, 2019. (Doc. 11-7 at 5, 59.) In response Petitioner “smiled and initially had no response, [and] then stated [he] wrote it but [was] told what to write it by staff.” (Doc. 11-7 at 4.)

Petitioner did not produce any other evidence, nor did he request to introduce any video evidence in his defense before the DHO. (Doc. 11-7 at 2-6.) In addition to Petitioner's verbal denial and written admission of guilt, the DHO also considered the written statement/investigative report of the reporting officer, Lieutenant Gallion, as well as documentary evidence of the telephone calls, emails, and mail, wherein Petitioner conspired to introduce drugs into the facility. (Doc. 11-7 at 3.) Taking into consideration this evidence, the DHO found that Petitioner committed the prohibited act, and sanctioned Petitioner with the disallowance of 41 days GCT, 30 days disciplinary segregation, 180 days loss of Phone, and 180 days loss of visitation. (Doc. 11-7 at 5.) On April 30, 2020, the DHO completed and signed the report of his findings. (Doc. 11-7 at 6.) A copy of the DHO Report was delivered to Petitioner on May 5, 2020. Id.

As demonstrated by the record, Petitioner was provided due process. Written notice of the re-written charges was provided to Petitioner on March 17, 2020, well over 24 hours before his appearance before the DHO on March 24, 2020. (Doc. 11-7 at 2.) The hearing was conducted by an impartial DHO, A. Estrada. (Doc. 11-7 at 2-6.) Petitioner waived his right to call witnesses. (Doc. 11-7 at 28.) A staff representative was provided, who reviewed the evidence and made a statement. Petitioner had the opportunity to present evidence in his defense; his statements were reflected in the record, including both his verbal denial, and his written confession. (Doc. 11-7 at 2, 4-6, 59.) He did not offer any documentation in his defense, or request the review of any video evidence. (Doc. 11-7 at 2-6.) On May 5, 2020, Petitioner was provided a copy of the DHO's report which contained a written statement of what evidence was relied upon and the reasons for the sanctions. (Doc. 11-7 at 6.)

Petitioner was provided each of the required elements of procedural due process as required by Wolff. The only remaining issue is whether the DHO's decision met the “some evidence” evidentiary standard for due process. Superintendent, 472 U.S. at 455.

The record of Petitioner's DHO proceeding demonstrates some evidence of Petitioner's guilt. The DHO considered both Petitioner's verbal denial of guilt and his written confession. The DHO also considered and rejected Petitioner's claim that his written confession was false, and that he had been instructed on what to write by staff. (Doc. 11-2, Doc. 11-7 at 4-6.) The DHO also relied on Lieutenant Gallion's investigation, and all of the documentary evidence submitted as part of that investigation. (Doc. 11-7 at 2-8.) The DHO's decision was clearly supported by some evidence upon which a reasonable impartial adjudicator could rely to find Petitioner guilty. Accordingly, the DHO's decision that Petitioner attempted to introduce drugs into the prison is upheld.

C. Petitioner's Placement In The SHU Does Not Violate Due Process

1. Federal Regulations Governing Administrative Detention

A federal inmate may be placed in administrative detention status, within the SHU, for various reasons. In the case of an inmate who “poses a threat to life, property, self, staff, other inmates, the public, or to the orderly running of the institution,” such an inmate may be placed in administrative detention for, among other things:

(1) Investigation. You are under investigation or awaiting a hearing for possibly violating a Bureau regulation or criminal law.

(2) Transfer. You are pending transfer to another institution or location;

(4) Post-disciplinary detention. You are ending confinement in disciplinary segregation status, and your return to the general population would threaten the safety, security, and orderly operation of a correctional facility, or public safety.

28 C.F.R. § 541.23(c).

Once placed in administrative detention, the inmate “will receive a copy of the administrative detention order, ordinarily within 24 hours, detailing the reason(s) for [the inmate's] placement.” 28 C.F.R. § 541.25(a). While the inmate remains in SHU, federal regulations provide for periodic reviews by a Segregation Review Official (SRO), as follows:

a) Three day review. Within three work days., not counting the day [the inmate was] admitted, weekends, and holidays, the SRO will review the supporting records..

b) Seven day reviews. Within seven continuous calendar days of [the inmate's] placement in. administrative detention. the SRO will formally review [the inmate's] status at a hearing [the inmate] can attend. Subsequent reviews of [the inmate's] records will be performed in [the inmate's] absence by the SRO every seven continuous calendar days thereafter.

c) Thirty day reviews. After every 30 calendar days of continuous placement in. administrative detention. status, the SRO will formally review [the inmate's] status at a hearing [the inmate] can attend.

28 C.F.R. § 541.26.

2. Factual History

Petitioner alleges that he has been in the Special Housing Unit (SHU) “since issuance of Report No. 3223020,” and that during that time he has “never been permitted to attend an SRO hearing as required by 28 CFR 541.26..”

Petitioner was issued incident report 3223020 on February 11, 2019. A review of Petitioner's housing history confirms that he was placed in the SHU on January 23, 2019, while the investigation of his attempt to introduce synthetic K-2 drugs into the facility was pending. (Doc. 11-2, Doc. 11-7 at 68, Inmate History Quarters (“House Z” refers to the SHU). After the DHO found him guilty of the charged offense, he was changed from an Administrative Detention (AD) status, to a Disciplinary Segregation (DS) status, where he remained until April 9, 2019. (Doc. 11-7 at 68-69.) On April 9, 2019, Petitioner was released from the SHU and transferred to general population within the prison. (Doc. 11-7 at 68.)

On June 18, 2019, Petitioner was again placed in the SHU. (Doc. 11-7 at 68.) This time Petitioner was in the SHU in connection with his involvement in fighting with another inmate, for which he was disciplined in incident report number 3269331. Petitioner remained in the SHU until October 24, 2019, at which time he was again transferred to the general population of the prison. (Doc. 11-7 at 68.)

Petitioner remained in general population until December 6, 2019. At that time, he was placed in AD status within the SHU in connection with the investigation of his renewed attempt to introduce synthetic K-2 drugs into the facility. (Doc. 11-2, Doc. 11-7 at 74, Administrative Detention Order (ADO); see also IR 3340656, supra.) The ADO was generated that same day, indicating Petitioner had been placed in SHU “pending an SIS investigation.” (Doc. 11-7 at 74.)

On December 11, 2019, the SRO completed the three-day review. (Doc. 11-2, Doc. 11-7 at 76, Special Housing Unit Reviews.) Then, on December 16, 2019, Petitioner attended the first, in person Special Housing Unit Review. (Doc. 11-7 at 76.) This was the one and only seven-day review that Petitioner was entitled to attend, as per 28 C.F.R. § 541.26(b).

On January 7, 2020, Petitioner attended the first 30-day review. (Doc. 11-2, Doc. 11-7 at 77.) By then, his status had changed from pending SIS investigation, to pending transfer.⁶ Id. Unfortunately, the Bureau of Prisons was not able to locate documentation of Petitioner's SRO reviews for the months of February, March, or April, of 2020. However, the documentation demonstrates that Petitioner was afforded the opportunity, but waived his right to attend the 30-day reviews that occurred on: May 6, 2020, and June 5, 2020. (Doc. 11-7 at 78.)

6 Due to the COVID-19 pandemic, BOP has temporarily ceased most routine transfers of inmates in an effort to slow and prevent the spread of COVID-19 within its facilities. See https://www.bop.gov/coronavirus/

3. Legal Argument

a. Subject Matter Jurisdiction

To the extent Petitioner alleges he was denied due process during any placement within the SHU prior to his current placement (December 6, 2019 through present), his challenge is moot, depriving this Habeas court of subject matter jurisdiction. Mootness is “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” See Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22 (1997). The case or controversy requirement of Article III requires this Court to dismiss moot cases for lack of jurisdiction. See Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 (1983); NAACP, Western Region v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir.1984). A case becomes moot if “the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1984). I

In other words, a case is moot if it does not satisfy the case or controversy requirement of Article III, § 2, of the Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998). “The case or controversy requirement demands that, through all stages of federal judicial proceedings, the parties continue to have a personal stake in the outcome in the lawsuit.” United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001) (internal quotation marks and citation omitted). “This means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable decision.” Spencer, 523 U.S. at 7. While the Court might be able to fashion a remedy regarding Petitioner's current placement in SHU, there is no habeas remedy available which would redress any such violation regarding prior placements. Because Petitioner is no longer subject to the challenged prior detentions in SHU, any ruling as to those detentions would be at most an advisory opinion. It is, however, settled law that federal courts do not issue advisory opinions. See, e.g., Hillblom v. United States, 896 F.2d 426, 430 (9th Cir. 1990).

b. Petitioner's Placement In SHU Does Not Implicate The Fifth Amendment

The Fifth Amendment protects from deprivations of a protected life, liberty, or property interest without due process. U.S. CONST. amend. V. However, the Constitution does not afford inmates which have been convicted of a crime a liberty interest in being housed in the general population. See Toussaint v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir. 1986) (administrative detention falls within the terms of confinement ordinarily contemplated by a sentence).

Pursuant to 18 U.S.C. § 4041(a)(1), Congress delegated the duty to manage and regulate all federal correctional and penal institutions to the BOP. The BOP has the authority to choose where to locate federal prisoners within the federal prison system. Under 18 U.S.C. § 3621(b), the BOP may designate the place of an inmate's imprisonment, including transfers “at any time.” Rodriguez v. Smith, 541 F.3d 1180, 1182, 1185 (9th Cir. 2008).

Indeed, the Supreme Court has concluded that the Due Process Clause does not grant prisoners a liberty interest in remaining in general population, see Sandin v. Connor, 515 U.S. 472, 485-86 (1995) and Hewitt v. Helms, 459 U.S. 460, 468 (1983). Although federal prison regulations may create liberty interests which are protected by the Due Process Clause, “these [liberty] interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 486 (placement in segregated housing as punishment did not present the type of atypical, significant deprivation which might conceivably create a liberty interest, as conditions in disciplinary segregation mirrored those in administrative segregation and protective custody). By extension, if there is no due process right associated with disciplinary detention because its conditions mirror those in administrative detention, there can be no due process right associated with administrative detention. See, e.g., Crowder v. True, 74 F.3d 812 (7th Cir. 1996), citing Hagan v. Tirado, 896 F.Supp. 990, 995 (C.D. Cal. 1995) (under Sandin, inmate placed in administrative detention pursuant to 28 C.F.R. § 541.22 has no due process right to a hearing); Jordan v. Bureau of Prisons, 191 Fed.Appx. 639, 656 (10th Cir. 2006) (placement in administrative detention for nearly five years did not implicate a liberty interest); Wilson v. Hogsten, 269 Fed.Appx. 193, 195 (3rd Cir. 2008) (finding an inmate's confinement in the Special Housing Unit did not implicate a liberty interest), but see Tellier v. Fields, 280 F.3d 69, 81 (2nd Cir. 2000) (finding that 514 days in administrative detention qualified as an “atypical and significant hardship,” and that in that context, federal regulations regarding administrative detention created a liberty interest).

Even pre-Sandin decisions recognized that due process was not required for administrative segregation: “It is plain that the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence... [Administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Helms,⁷ 459 U.S. 460, 468 (1983), quoted by Hagan, 896 F.Supp. at 995. See also, Smith v. Noonan, 992 F.2d 987 (9th Cir. 1993) (recognizing “the Constitution provides no liberty interest to be free from administrative segregation”). Under Sandin, and its progeny, it is clear that Petitioner has no liberty interest or due process right to remain in general population.

7 While the Hewitt Court did conclude that an inmate should be given notice of the reason for his placement in administrative detention, this conclusion was made in the context of Pennsylvania state law, applying a preSandin standard. This case does not establish that postSandin v. Connor, 515 U.S. 472 (1995), placement in SHU implicates due process.

Even if Petitioner were entitled to due process for punitive placement in SHU, he has not alleged any facts which demonstrate his continued placement in SHU is in fact punitive. In order to determine whether any particular restriction amounts to punishment, courts “must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Bell v. Wolfish, 441 U.S. 520, 536- 37 (1979) (re conditions of confinement for pre-trial detainees). Except in cases where the facility has expressed an intent to punish, “that determination generally will turn on ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].'” Id. “[I]f a particular condition is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.'” Id.; see also Byrd v. Maricopa County Sheriff's Dept., 629 F.3d 1135, 1140 (9th Cir. 2011) (stating that conditions are permissible unless they are “unrelated to a legitimate governmental objective”). As the Supreme Count explained, courts “must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea” of how best to operate a facility. Id.

In analyzing USP Tucson's decision to house Petitioner within the SHU, it is important to remember the law gives great deference to the decisions that prison officials make about how to run their institutions. Indeed, federal regulations explicitly authorize the placement of an inmate in the SHU upon learning that the inmate poses a risk to the safety of staff: 28 C.F.R. § 541.23(c), which includes for purposes of investigation, and while pending transfer to a new facility. As the Supreme Court explained in Bell:

Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel..,[T]he problems that arise in the day-today operations of a corrections facility are not susceptible of easy solutions. Prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. ‘Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.

Bell, 441 U.S. at 546, 547, 548 (internal citations omitted). Given this deferential standard, placing Petitioner in administrative detention pending an investigation and discipline for orchestrating yet another attempt to introduce drugs into the prison is reasonably related to a legitimate governmental objective, specifically ensuring the safe and orderly running of the institution, and preventing the crime of introducing illegal drugs into a federal prison.

Finally, contrary to Petitioner's assertions, BOP records demonstrate that correctional staff have provided him with meaningful review of his status within SHU, even if some of the records are not available. Accordingly, even if there is a due process liberty interest at stake, Petitioner has been afforded sufficient process, and this petition is denied.⁸

8 Even if the court were to find a liberty interest exists here, and find a violation thereof in the manner in which BOP has provided Petitioner's SHU Review, at most the appropriate remedy would be to require the provision of process consistent with federal regulations. The Court should not interfere with the management of the very real and very serious threat that this inmate poses by ordering release into general population.

V. CONCLUSION

For the foregoing reasons, this Court finds it appropriate to deny Petitioner's § 2241 petition.

VI. RECOMMENDATION

For the foregoing reasons, this Court finds that the Petitioner's claims lack merit. Accordingly, the Magistrate Judge recommends that the District Judge, after its independent review, DISMISS the Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus (Doc. 1).

Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: 4:20-cv-00131-DCB.

Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall send a copy of this Report and Recommendation to all parties.