Opinion
Civil No. 00-559-ST
December 1, 2000
AGUSTIN SALGADO Fed. Reg. No. 51394-053 FCI Sheridan Sheridan, OR Petitioner Pro Se.
KRISTINE OLSON United States Attorney KENNETH C. BAUMAN Assistant U.S. Attorney Portland, OR Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner, an inmate at FCI Sheridan, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 pro se. For the reasons set forth below, his petition should be DENIED.
BACKGROUND
Petitioner seeks to challenge the legality of sanctions imposed as a result of a disciplinary proceeding. Petitioner is currently housed at FCI Sheridan. Prior to his transfer to FCI Sheridan, he had been housed at FCI Terminal Island, California. On March 18, 1999, an incident report was prepared at FCI Terminal Island which charged that on that date petitioner committed the prohibited act of possession of narcotics (marijuana and heroin), a Code 113 violation. The incident report was issued after a United States Customs Service K-9 Officer's dog "alerted" to the presence of drug contraband in the area where petitioner and inmate Romeo Deleon were housed. A search of an electric outlet plate that the dog had alerted to produced a bundle of marijuana and a bundle of tar heroin.
Petitioner was advised of his rights, and on April 28, 1999, a disciplinary hearing was held by Disciplinary Hearing Officer ("DHO") Angela Person. At the disciplinary hearing, inmate Deleon stated that the contraband drugs were solely his. DHO Person nevertheless found that petitioner had committed the prohibited act and imposed sanctions of: loss of 27 days of good conduct time, 30 days disciplinary segregation, suspend 3 days of sanction pending 30 days clear conduct, loss of visiting privileges for 365 days, suspend 180 days of sanction pending 180 days clear conduct, the disallowance of 27 days good conduct time and disciplinary transfer.
In support of DHO Person's decision, she stated as follows:
possession of Drug Paraphernalia jeopardizes the safety of all inmates as well as staff and may lead to further more serious acts of misconduct. Use or Possession of drugs in a correctional facility demonstrates your willful disregard for the rules, and is an indication of your need for greater supervision.
The sanctions are imposed as punishment and to discourage future misconduct.
Petitioner contends that DHO Person could not have found that he committed the prohibited act because his bunkmate Deleon took full responsibility for the drugs that were found in their cell area. DHO Person explained in her declaration why she discounted inmate Deleon's acceptance of sole responsibility for the drugs:
During the hearing on April 28, 1999, I recall that there was no dispute about the existence of illegal drugs in inmate Salgado's cell area. Instead, I recall that inmate Salgado argued his innocence on the basis that he did not know about the drugs, that the drugs belonged to his cellmate, and that his cellmate had accepted responsibility for the illegal drugs.
Although I considered the fact that inmate Salgado's cellmate did take full responsibility for the drugs at the hearing, I doubted its veracity since the cellmate did not take such responsibility at any other step of the disciplinary process. I believed that inmate Salgado may have taken the opportunity to influence his cellmate's testimony, prior to his cellmate's hearing. Based upon my experience in similar situations, it is possible for both inmates to conspire to conceal the drugs in their cell area, while conspiring for only one to take the blame. As a result, I placed little weight on inmate Salgado's cellmate's testimony, and placed greater weight on the proximity of the drugs to inmate Salgado's cell area. Consequently, in my judgment, I determined that there was [sic] "some facts" that inmate Salgado was in possession of illegal drugs via the drugs hidden in his cell area. The standard of evidence is set forth in 28 C.F.R. § 541.18(f).
Although inmate Salgado and his cellmate were both found guilty of violating BOP rules concerning the single incident of drug possession, my decision is in accordance with BOP policy, and sound correctional practice. Both inmates must be held accountable in such situations to encourage inmates to report violations of BOP rules. If one inmate could exculpate him[self] or herself from accountability based upon the other inmate admitting to the violation, this would encourage an atmosphere of intimidation and coercion via inmates trying to force weaker inmates into accepting blame. As a result, my judgment in these kinds of cases helps facilitate the orderly running of the institution.
Petitioner exhausted his administrative remedies with respect to the disciplinary hearing, and filed this action on April 24, 2000. Petitioner contends that the DHO's decision was arbitrary, and was not supported by sufficient evidence. By way of remedy, petitioner seeks the following relief: "Expunge Incident Report #66742, transfer petitioner to a `low' facility in California, and reimburse petitioner for the $180.00 that was lost when he was transferred and was unable to finish his college classes."
DISCUSSION
Under Wolff v. McDonnell, 418 U.S. 539 (1974), an inmate facing administrative disciplinary charges is entitled, at a minimum, to the following protections: (1) to receive written notice of charges no less than 24 hours before the disciplinary hearing; (2) to present evidence and witnesses in his defense where this will not jeopardize institutional safety or correctional goals; and (3) to receive a written statement of the evidence relied upon and the reasons for the disciplinary action. Id. at 563-69. Petitioner does not dispute, and the record reveals, that he received these protections.
Due process further requires that "some evidence" support a prison disciplinary hearing decision. Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994); Bostic v. Carlson, 884 F.2d 1267, 1269-70 (9th Cir. 1989). "There `must be some indicia of reliability of the information that forms the basis for prison disciplinary actions.'" Toussaint v. McCarthy, 926 F.2d 800, 802-03 (9th Cir. 1990), cert. denied, 112 S.Ct. 213 (1991) (quoting Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987)). "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Superintendent v. Hill, 472 U.S. at 455.
Notwithstanding petitioner's protests that he is actually innocent of the charge because he is not a drug user, a review of the record reveals that DHO Person clearly had before her some evidence, which had an indicia of reliability, to support her decision to reject inmate Deleon's acceptance of responsibility. That evidence was inmate Deleon's delay in accepting responsibility and the proximity of the drugs to petitioner's cell area. Even if DHO Person's decision was wrong, petitioner's due process rights were not violated by the hearing process, the DHO's decision, or the sanctions imposed. Accordingly, petitioner is not entitled to the relief sought herein.
To the extent petitioner seeks money damages, the court notes that a petition for writ of habeas corpus is not a proper procedure for obtaining such. This court is, however, obligated to construe a pro se petition for writ of habeas corpus in which damages are sought as a civil rights complaint. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (treating habeas petition as § 1983 complaint); Tucker v. Carlson, 925 F.2d 330 (9th Cir. 1991) (treating complaint as both a Bivens complaint and habeas corpus petition). So construed, plaintiff's claim for damages in this action is nevertheless without merit. See Heck v. Humphrey, 114 S.Ct. 2364, 2372 (1994); Edwards v. Balisok, 117 S.Ct. 1584 (1997).
RECOMMENDATION
Based upon the foregoing, I recommend that the petition for writ of habeas corpus (docket #1) be DENIED, and that this action be dismissed.SCHEDULING ORDER
Objections to these Findings and Recommendation, if any, are due December 18, 2000. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due no later than January 5, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.