Opinion
CV-20-00071-TUC-RM
10-05-2022
Jeremy Pinson, Petitioner, v. Barbara Von Blanckensee, Respondent.
ORDER
HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE.
On September 8, 2022, Magistrate Judge Jacqueline Rateau issued a Report and Recommendation (“R&R”) (Doc. 17), recommending that this Court dismiss Petitioner's 28 U.S.C. § 2241 Petition for a Writ of Habeas Corpus (Doc. 1) as moot. No objections to the R&R were filed.
The Court notes that the R&R was returned as undeliverable. (Doc. 18.) Petitioner was notified at the start of this case that a failure to file a notice of change of address may result in dismissal of this action. (Doc. 6 at 2.)
I. Petition
The Petition, filed on February 18, 2020, seeks (1) Petitioner's release from the Special Housing Unit (“SHU”) at the United States Penitentiary (“USP”) in Tucson, Arizona, where she was previously incarcerated; and (2) an injunction prohibiting Bureau of Prisons (“BOP”) officials from denying periodic administrative hearings by a Segregation Review Officer (“SRO”) to inmates housed in the SHU, as provided for by 28 C.F.R. § 541.26. (Doc. 1.) Petitioner's claims relate to four separate periods in which she was placed in the SHU at USP-Tucson: (1) April 22, 2019 to May 22, 2019; (2) June 13, 2019 to October 23, 2019; (3) December 16, 2019 to January 14, 2020; and (4) January 17 through the date the Petition was filed (the “SHU placements”). (Id. at 4.)
28 C.F.R. § 541.26 provides for formal reviews of an inmate's placement in the SHU every seven and thirty days, to include a hearing which the inmate may attend, and provides that an inmate may challenge his placement in the SHU through the Administrative Remedy program. Petitioner avers that BOP has failed to provide her with regular SRO reviews in accordance with the regulation, and that as a result, she has been deprived of her Fifth Amendment right to due process. (Id.)
In response, Respondent argues that (1) Petitioner's claims should be denied as moot, at least as to the first three SHU placements, because she has been released; (2) Petitioner's claims should be denied for a failure to exhaust administrative remedies; and (3) if Petitioner's claim as to the fourth SHU placement is not denied for failure to exhaust, it should be denied on the merits, because there is no Fifth Amendment due process right associated with review of an inmate's placement in the SHU. (Doc. 13.)Respondent provides extensive documentation showing that Petitioner was placed in the SHU because of physical assaults by other inmates on her and that her SHU placements were primarily for the purpose of protecting her from other inmates. (Id.)
Respondent provides a record of the SRO's review of Petitioner's January 2020 SHU placement but does not provide records of any other reviews. (Doc. 13-10.)
II. Report and Recommendation
Magistrate Judge Rateau's R&R R finds that, as Petitioner has already been released from all four SHU placements at issue, her request to be released is moot. (Doc. 17 at 5.) The R&R further finds that, as Petitioner is no longer housed at USP-Tucson, her request for an injunction prohibiting USP-Tucson officials from denying hearings before a SRO is also moot as a result of her transfer. (Id.) The R&R notes that other active cases in the District of Arizona indicate that Petitioner has since been transferred back to USP-Tucson but that the record in this case does not show that Petitioner has been transferred back to USP-Tucson or housed in the SHU there. (Id. at 5.) The R&R further finds that, even if Petitioner has been transferred back to USP-Tucson, her claims are still moot because without evidence that Petitioner has in fact been transferred back to USP-Tucson, housed in the SHU, and deprived of her Fifth Amendment rights, there is no basis for overcoming mootness. (Id. at 5-6); see Dilley v. Gunn, 64 F.3d 1365, 1368-9 (9th Cir. 1995) (“An inmate's release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison's policies unless the suit has been certified as a class action.”).
III. Standard of Review
A district judge must “make a de novo determination of those portions” of a magistrate judge's “report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee's notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee's note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).
IV. Discussion
a. Mootness
The Court finds no error with respect to the R&R's finding that Petitioner's first claim, her request for release from the SHU at USP-Tucson, is moot. Petitioner's fourth placement in the SHU, beginning in January 2020, has clearly concluded, as she was subsequently transferred to USP-Coleman in Coleman, Florida. (Doc. 17 at 5, see also Doc. 15.)
However, this Court declines to find Petitioner's request for an injunction prohibiting BOP officials from denying periodic reviews by a SRO to inmates housed in the SHU moot. Petitioner's claim that BOP officials are, or were, denying her hearings to review her SHU placements is not moot because it is possibly “capable of repetition, yet evading review.” See Dilley 64 F.3d at 1368 (citing Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)). “This exception to the mootness doctrine applies when (1) the challenged action is too short in duration to be fully litigated prior to its expiration and (2) there is a reasonable expectation that the injury will occur again.” Id. The first factor applies here, where the SRO reviews are provided only during an inmate's placement in the SHU and Petitioner was released from the SHU before her claim of being denied the SRO reviews could be fully litigated. The second factor also applies because, though there is no indication in the record of this case that Petitioner has been transferred back to USP-Tucson, based on the records of other active cases in the District of Arizona, there is a reasonable expectation that she either has been, or will be in the near future. See id. at 1369. Thus, there is a reasonable expectation that the injury could occur again.
b. Administrative Exhaustion
Respondent argues that Petitioner failed to exhaust her administrative remedies with respect to her claims. (See Docs. 13 at 7; 13-1; 13-3; 13-4.) Respondent attaches records showing Petitioner's administrative grievances filed during the relevant time periods; these records indicate that Plaintiff did not exhaust her administrative remedies with respect to the claims raised in the Petition. However, in the event that Petitioner attempted to exhaust her administrative remedies but was unable to do so, as she alleges (Doc. 14 at 2-3), the Court will consider the merits of Petitioner's claim.
c. Merits
Respondent argues that because Petitioner has no protected liberty interest in being housed in the general population as opposed to the SHU, there is no Fifth Amendment due process right associated with prison officials' decision to place Petitioner in the SHU. (Doc. 13 at 9-13.) The Court agrees.
Plaintiff argues in her Reply that her placement in the SHU is “atypical and significant” within the meaning of Sandin v. Conner, 515 U.S. 472, 486 (1995) because she lacks sufficient outdoor exercise, is not receiving mail, lacks access to work or other activities, is indefinitely confined there, and cannot purchase items from the commissary. (Doc. 14.) However, this argument was not raised in the Petition and the Court need not consider arguments raisedror the first time in Reply. See FT Travel-New York, LLC v. Your Travel Ctr., Inc., 112 F.Supp.3d 1063, 1079 (C.D. Cal. 2015).
The Fifth Amendment prohibits deprivation of a protected life, liberty, or property interest without due process. U.S. Const. Amend. V. However, inmates who have been convicted of crimes do not have a liberty interest in being housed in the general population because placement in segregated housing for nonpunitive reasons is “within the terms of confinement ordinarily contemplated by a prison sentence.” Toussaint v. McCarthy, 801 F.2d 1080, 1091 (9th Cir. 1986) (citing Hewitt v. Helms, 459 U.S. 460, 468 (1983)). Moreover, while a State may create liberty interests protected by the Due Process Clause, “these 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 atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995). The Sandin Court recognized that placement in segregated housing for disciplinary purposes does not “present the type of atypical, significant deprivation” in which a liberty interest might exist within the prison context. Id. at 486; see also Hewitt v. Helms, 459 U.S. 460, 468 (1983) (“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.”)
No State regulations are at issue in this case. Petitioner seeks injunctive relief related to a federal regulation, 28 C.F.R. § 541.26, but has not provided, nor has the Court located, any precedent providing that a federal regulation of this nature creates a liberty interest protected by the Fifth Amendment Due Process Clause.
Federal regulations provide that an inmate may be placed in administrative detention if an inmate's “presence in the general population poses a threat to life, property, self, staff, other inmates, the public, or to the security or orderly running of the institution” and staff has determined that the inmate requires administrative detention for her own protection. 28 C.F.R. § 541.23(c).
Furthermore,
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 dayto-day 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 v. Wolfish, 441 U.S. 520, 547 (1979) (internal citations omitted).
Petitioner does not have a liberty interest in being housed in general population at USP-Tucson. Because no protected liberty interest is at stake, the alleged lack of periodic SRO reviews of her placement in the SHU does not violate Fifth Amendment due process guarantees. Furthermore, the record indicates that Petitioner's placements in the SHU were for the primary purpose of protecting her from violence from other inmates. Such a purpose falls within the prison's purview of managing safety and security within the institution.
Accordingly, IT IS ORDERED that the Report and Recommendation (Doc. 17) is accepted in part and modified in part, as set forth herein.
IT IS FURTHER ORDERED that Petitioner's 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus (Doc. 1) is denied. The Clerk of Court is directed to enter judgment accordingly and close this case.