Opinion
3:20-cv-01471-MK
08-24-2021
MICHAEL AARON RIVERA-SEARS, Petitioner, v. DEWAYNE HENDRIX, [1] Respondent.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, United States Magistrate Judge.
Petitioner, an inmate at the Federal Correctional Institution in Sheridan, Oregon (FCI Sheridan), brings this action under 28 U.S.C. § 2241 and challenges the loss of good conduct credits imposed as a disciplinary sanction. Petitioner maintains that the charged rule violation was not supported by sufficient evidence and the disciplinary proceedings failed to comport with the requirements of due process. Petitioner seeks the expungement of the incident report and the restoration of his good conduct credits. For the following reasons, petitioner fails to establish a violation of his due process rights and the Petition should be denied.
BACKGROUND
Between August 24, 2018 and August 31, 2018, FCI Sheridan officials discovered that thirteen greeting cards sent to the FCI mail room contained strips of Buprenorphine (Suboxone), a controlled substance, concealed underneath the postage stamp on each envelope. Hernandez Decl. & Ex. C at 1. The cards were addressed to inmate Jason Perry and most were postmarked from Oklahoma City, Oklahoma. Id. Ex. E at 2. The cards listed different names and addresses in the return address portion of the envelopes. Id.
Investigators discovered that petitioner's girlfriend, K. Dustie, had sent the following text messages to a Tony Coffman before the greeting cards were mailed:
Dustie: Hi Tony, my name is [K]. I am Michael Riveras girlfriend. He asked me to get in touch with you and send you $100. He and JP were [in] your electrical class.
Coffman: Yes I was with them both. How do you want to send it?
Dustie: Mike said it's best to send Walmart to Wal-mart.
Coffman: That's fine with me so you need my name and location I think. Tony Coffman Guthrie, OK 73044
Dustie: I think so. I am not 100% sure how all this works. I'll ask when I get there….
Dustie: Ok I am at Wal-Mart now. Will let you know if I need anything else.Id. Ex. E at 3. Coffman then sent a message to Perry stating, “I txt you about going to walmart an mike is good…” Id.
One of the greeting cards sent to Perry listed a return name and address of “Ted Perry, 7043 Ford Rd., Medford OR 97504, ” despite the postmark from Oklahoma City. Id. Investigators learned that the address of petitioner's girlfriend was 3470 Ford Dr., Medford, Oregon, 97504. Hernandez Decl. Ex. E at 3. Based on the totality of the evidence, investigators determined that the Medford return address on one of the greeting cards indicated that petitioner was the intended recipient for that card. Id. Ex. C at 1; Ex. E at 2-4.
On January 23, 2019, an incident report was issued charging petitioner with violating Code 111A, Attempted Introduction of Narcotics, and Code 217, Giving Money for the Purpose of Introducing Contraband. Id. ¶ 8(B) & Ex. C at 1.
On January 27, 2019, the Unit Disciplinary Committee (UDC) held an initial hearing with petitioner. Id. ¶ 8(D) & Ex. C at 1. Petitioner told the UDC, “I am not guilty of drug introduction, nor did I know about it. In August I bought some stamps from another inmate. He gave me a number to have money sent to. I bought 15 books of stamps. I am guilty of sending money to another inmate for STAMPS.” Id. The UDC recommended that the DHO expunge Codes 111A and 217 and referred the charges to the hearings officer. Id.
On February 8, 2019, a disciplinary hearing was conducted by Disciplinary Hearings Officer (DHO) Cortez. Petitioner was given advance notice of the charges and the evidence against him, and he was afforded a staff representative and the opportunity to present evidence. Id. ¶ 10(A) & Ex. D. Petitioner denied the charges and maintained that he transferred the money to buy stamps from Perry:
He had stamps for sale and I bought them. I bought 15 books for $100 from him. I have never had that address for her. It's possible that the other guy was reaching for an address and used that one from the receipts. If I knew that Perry was into this stuff I would have stayed clear of him. I have been working hard in the electrical shop. I can't speculate as to why he did anything he was doing. I program and try to stay out of the way. I was going to use the stamps to buy stuff out of the kitchen.Id. Ex. E at 1.
Petitioner called one witness, Perry, who gave the following statement: “He [petitioner] worked in the electrical shop with me. I didn't tell [him] that I was having that sent. I was just going to give it to the people the debt was owed to. I sold him some stamps. That's not even her address. That Coffman guy used that address.” Id.
DHO Cortez found that petitioner violated Code 111A, Attempted Introduction of Narcotics. Hernandez Decl. ¶ 11 & Ex. E at 4. DHO Cortez disallowed forty-one days of good conduct time and imposed disciplinary segregation for twenty-one days and the loss of visiting privileges for six months. Id. ¶ 11 & Ex. E at 4.
DISCUSSION
“Under the Fourteenth Amendment's Due Process Clause, a prisoner is entitled to certain due process protections when he is charged with a disciplinary violation.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003). At the same time, 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). Due process requirements are met if the inmate receives: 1) advance written notice of the charges and the evidence against the inmate; 2) an opportunity to present documentary evidence and witnesses; 3) legal assistance if the charges are complex or the inmate is illiterate; 4) a written statement describing the reasons for the disciplinary action; and 5) a disciplinary decision supported by “some evidence in the record.” Id. at 563, 565-66, 570; Superintendent v. Hill, 472 U.S. 445, 454 (1985). The “some evidence” standard does not “require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached.” Hill, 472 U.S. at 455-56.
Petitioner first argues that he did not receive notice of the charges within twenty-four hours after prison officials became aware of his involvement in the alleged incident, as required by C.F.R. § 541.5. However, due process requires only that petitioner receive notice of the charges in advance of the disciplinary proceeding, and he admittedly received such notice. See Hernandez Decl. Exs. C, D.
Petitioner also contests the evidence against him and argues that he was found guilty of the rule violation solely because of his association with Perry. See Pet'r Brief in Support at 4. I disagree.
Evidence presented to the DHO Cortez established that petitioner instructed his girlfriend to send $100 to a Tony Coffman in Oklahoma. Coffman then sent a message to Perry stating that petitioner was “good.” Coffman then sent thirteen envelopes containing a controlled substance to Perry, and one envelope had a return address that approximated the address of petitioner's girlfriend. While this evidence is circumstantial and subject to differing interpretations, it constitutes “some evidence” and I cannot find that petitioner's disciplinary hearing failed to comport with the requirements of due process.
CONCLUSION
Petitioner fails to establish a violation of his federal due process rights, and his § 2241 Petition (ECF No. 1) should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties may file specific written objections within fourteen (14) days from the date of service of this recommendation. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed. R. Civ. P. 72. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).