(HC) Oscar Arredondo-Virula v. Adler, No. 1:2009cv02049 - Document 16 (E.D. Cal. 2010)
Court Description: ORDER DEEMING RESPONDENTS 12 MOTION TO DISMISS TO BE AN ANSWER TO THEPETITION; FINDINGS and RECOMMENDATIONS Recommending that 1 Petition of Writ of Habeas Corpus be DENIED, signed by Magistrate Judge Sheila K. Oberto on 7/14/2010, referred to Judge Ishii. (Objections to F&R due by 8/19/2010.)(Marrujo, C)
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(HC) Oscar Arredondo-Virula v. Adler Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 OSCAR ARREDONDO-VIRULA, 11 Petitioner, 12 v. 13 NEIL H. ADLER, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—02049-AWI-SKO-HC ORDER DEEMING RESPONDENT’S MOTION TO DISMISS TO BE AN ANSWER TO THE PETITION (DOC. 12) FINDINGS AND RECOMMENDATION TO DENY THE PETITION FOR WRIT OF HABEAS CORPU8S (DOC. 1) OBJECTIONS DUE WITHIN THIRTY (30) DAYS 16 17 18 Petitioner is a federal prisoner proceeding with a petition 19 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 20 matter has been referred to the Magistrate Judge pursuant to 28 21 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 22 the Court is Respondent’s motion to dismiss the petition filed on 23 March 11, 2010. 24 entitled “PETITIONER’S MOTION TO DISMISS RESPONDENT’S MOTION TO 25 DISMISS ARTICULATED PURSUANT TO FRCP 12(B)(6)” (doc. 14, 1), in 26 which Petitioner opposed Respondent’ motion to dismiss. 27 1.) 28 /// The Pending before On April 22, 2010, Petitioner filed documents (Id. at No reply was filed. 1 Dockets.Justia.com 1 2 3 I. Jurisdiction A. Subject Matter Jurisdiction Relief by way of a writ of habeas corpus extends to a 4 prisoner in custody under the authority of the United States who 5 shows that the custody violates the Constitution, laws, or 6 treaties of the United States. 7 a federal prisoner who challenges the validity or 8 constitutionality of his conviction must file a petition for writ 9 of habeas corpus pursuant to 28 U.S.C. § 2255, a federal prisoner 28 U.S.C. § 2241(c)(3). Although 10 challenging the manner, location, or conditions of the execution 11 of a sentence must bring a petition for writ of habeas corpus 12 under 28 U.S.C. § 2241. 13 864-65 (9th Cir. 2000). 14 Hernandez v. Campbell, 204 F.3d 861, Here, Petitioner alleges that he was denied due process of 15 law under the Fifth Amendment in connection with a prison 16 disciplinary hearing and seeks expungement of the finding and 17 restoration of good-time credits and visitation privileges lost 18 as a result of the finding. 19 concerning parole, good time, or other rules administered by a 20 prison or penal administrator that challenges the duration of a 21 sentence is a cognizable claim of being in custody in violation 22 of the Constitution pursuant to 28 U.S.C. § 2241(c)(3). 23 e.g., Superintendent v. Hill, 472 U.S. 445, 454 (1985) 24 (determining procedural due process claim concerning disciplinary 25 procedures and findings); Wilkinson v. Dotson, 544 U.S. 74, 88 26 (2005) (Kennedy, J., dissenting). 27 has resulted in the loss of time credits, it affects the duration 28 of a sentence, and the violation may be remedied by way of a (Pet. 9.) 2 A due process claim See, If a constitutional violation 1 petition for writ of habeas corpus. 2 874, 876-78 (9th Cir. 1990). 3 4 Accordingly, the Court concludes that it has subject matter jurisdiction over the petition. 5 6 Young v. Kenny, 907 F.2d B. Jurisdiction over the Person Title 28 U.S.C. § 2241(a) provides that writs of habeas 7 corpus may be granted by the district courts “within their 8 respective jurisdictions.” 9 upon the prisoner, but upon the prisoner’s custodian. A writ of habeas corpus operates not Braden v. 10 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495 11 (1973). 12 under § 2241 must file the petition in the judicial district of 13 the petitioner's custodian. 14 672, 677 (9th Cir. 1990). 15 prisoner is confined constitutes the custodian who must be named 16 in the petition, and the petition must be filed in the district 17 of confinement. 18 (2004). 19 jurisdiction of the court at the time the petition is filed; 20 transfer of the petitioner thereafter does not defeat personal 21 jurisdiction that has once been properly established. 22 Clark, 335 U.S. 188, 193 (1948), overruled on other grounds in 23 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. at 24 193 (citing Mitsuye Endo, 323 U.S. 283, 305 (1944)); Francis v. 25 Rison, 894 F.2d 353, 354 (9th Cir. 1990). 26 serve the custodian deprives the Court of personal jurisdiction. 27 Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003). 28 A petitioner filing a petition for writ of habeas corpus Brown v. United States, 610 F.2d The warden of the penitentiary where a Id.; Rumsfeld v. Padilla, 542 U.S. 426, 446-47 It is sufficient if the custodian is in the territorial Ahrens v. A failure to name and Here, at all pertinent times, Petitioner was incarcerated at 3 1 the Taft Correctional Institution (TCI), which is located within 2 the Eastern District of California. 3 Adler, the Warden of TCI, as Respondent. 4 5 Petitioner named Neil H. Accordingly, the Court concludes that it has personal jurisdiction over the custodian. 6 II. 7 In the motion before the Court, Respondent purports to 8 proceed pursuant to Fed. R. Civ. P. 12(b)(6), which provides for 9 the making of a motion to dismiss for failure to state a claim Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) 10 upon which relief can be granted. 11 sufficiency of the claim or claims stated in the complaint. 12 considering a motion under Fed. R. Civ. P. 12(b)(6), a court must 13 construe the complaint in the light most favorable to the 14 plaintiff; accept all well-pleaded factual allegations as true; 15 and determine whether the plaintiff can prove any set of facts to 16 support a claim that would merit relief. 17 Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). 18 Such a motion tests the legal In Cahill v. Liberty Mut. The Federal Rules of Civil Procedure are not necessarily 19 fully applicable to the present proceeding. 20 civil procedure may be applied to a proceeding governed by the 21 Rules Governing Section 2254 Cases in the United States District 22 Courts (Habeas Rules) to the extent that they are not 23 inconsistent with any statutory provisions or the rules governing 24 cases brought pursuant to 28 U.S.C. §§ 2254 or 2255, and where 25 the practice in habeas proceedings has previously conformed to 26 the practice in civil actions. The rules governing Habeas Rule 12;1 Fed. R. Civ. P. 27 28 1 The Rules Governing Section 2254 Cases may be applied to petitions brought pursuant to § 2241. Habeas Rule 1(b). 4 1 81(a)(4). 2 rules apply only when it would be appropriate and would not be 3 inconsistent or inequitable in the overall framework of habeas 4 corpus. 5 Felix, 545 U.S. 644, 654-655 n. 4 (2005). 6 The advisory committee’s notes caution that the civil Habeas Rule 12 Advisory Committee’s Note; Mayle v. The Supreme Court has characterized as erroneous the view 7 that a Rule 12(b)(6) motion is appropriate in a habeas corpus 8 proceeding. 9 434 U.S. 257, 269 n. 14 (1978). See, Browder v. Director, Ill. Dept. of Corrections, However, in light of the broad 10 language of Rule 4, it has been held in this circuit that motions 11 to dismiss are appropriate in cases that proceed pursuant to 28 12 U.S.C. § 2254 and present issues of failure to exhaust state 13 remedies, O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990 (a 14 motion to dismiss for failure to raise any issue of federal law, 15 which was based on the insufficiency of the facts as alleged in 16 the petition to justify relief as a matter of law, was evaluated 17 under Rule 4); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 18 1989) (procedural default in state court); Hillery v. Pulley, 533 19 F.Supp. 1189, 1194 n. 12 (E.D.Cal. 1982) (a motion to dismiss for 20 failure to exhaust state remedies was appropriately considered 21 after receipt of evidence pursuant to Rule 7(a) to clarify 22 whether or not the possible defect, not apparent on the face of 23 the petition, might preclude a hearing on the merits, and after 24 the district court had determined that summary dismissal was 25 inappropriate). 26 In the present case, the Court has already undertaken to 27 screen the petition pursuant to Habeas Rule 4, which requires the 28 Court to dismiss a petition if it plainly appears from the 5 1 petition and any attached exhibits that the petitioner is not 2 entitled to relief in the district court. 3 had to screen the petition before it issued its order of January 4 13, 2010, directing Respondent to file a response to the 5 petition. 6 repetitive and unnecessary. 7 The Court necessarily Thus, proceeding pursuant to Rule 12(b)(6) would be In response to the motion, Petitioner argues that the 8 allegations of the petition are sufficient to state a claim, and 9 he cites to supporting cases. (Opp. 3-5.) In the petition it is 10 alleged that a prison administrator’s disciplinary finding that 11 Petitioner violated Prohibited Act Code 205 by engaging in sexual 12 acts violated Petitioner’s right to due process of law because 13 the finding was 1) unsupported by some evidence of guilt, and 2) 14 imposed not by an employee of the Bureau of Prisons (BOP), but 15 rather by an employee of a private corporation that managed the 16 prison who lacked the legal authority to impose discipline. 17 Petitioner does not dispute the authenticity of the record of the 18 proceedings that was submitted by Respondent in support of the 19 motion to dismiss except to challenge the reliability of the 20 principal evidence of his having committed the prohibited act, 21 namely, an alleged admission made when exiting the visitation 22 room that the bulge in his pants was from contact with a female 23 visitor. 24 upon by the prison’s hearing officer, was impossible or 25 inherently improbable due to a language barrier between the 26 officer and Petitioner and thus was insufficient to constitute 27 the required “some evidence” to support the disciplinary finding. 28 (Pet. 3.) Petitioner argues that the evidence, which was relied 6 1 In a manner inconsistent with a motion pursuant to Rule 2 12(b)(6), Respondent submitted evidence extraneous to the 3 petition, including documentation of not only 4 process but also the employment of the disciplinary hearing 5 officer and his certification status with respect to acting as a 6 hearing officer. 7 merits of the constitutional adequacy of the disciplinary process 8 and the evidence relied upon as well as the issue concerning the 9 hearing officer’s legal authority to proceed. 10 (Mot. Exs. A-D.) the disciplinary Respondent addresses the (Mot. 4-8.) The Court therefore concludes that Respondent is actually 11 arguing the merits of the petition. 12 in support of the motion to dismiss actually serves as an answer 13 in this proceeding. 14 Petitioner does not dispute the factual record, but rather argues 15 that the proceedings and evidence reflected therein were 16 constitutionally inadequate. The factual matter set forth Review of all the papers reveals that 17 A court has inherent power to control its docket and the 18 disposition of its cases with economy of time and effort for both 19 the court and the parties. 20 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 21 (9th Cir. 1992). 22 concludes that it would be wasteful of the resources of the 23 parties and the Court simply to consider the motion to dismiss on 24 narrow, strictly procedural grounds and then require Respondent 25 to file an answer. 26 factual matter would be pertinent to the claims before the Court 27 or that the parties desire to bring any further facts before the 28 Court. Landis v. North American Co., 299 Given the positions of the parties, the Court It does not appear that any additional Respondent’s position is essentially that on the basis of 7 1 all the evidence in the record, Petitioner received all the 2 process that was due; Petitioner’s position is that on the basis 3 of all the evidence in the record, Petitioner’s right to due 4 process was violated by an absence of evidence to support the 5 disciplinary finding, and the hearing officer lacked the 6 authority to determine the violation. 7 Petitioner will suffer any prejudice if the Court proceeds to 8 determine the merits of the petition. 9 opportunity to support his contentions in the petition and to It does not appear that Petitioner had a full 10 argue the legal points in his opposition to the motion to 11 dismiss. 12 the evidence that was presented and relied upon in the 13 disciplinary proceedings; rather, the parties disagree on the 14 legal significance of the evidence. 15 There does not appear to be any material dispute as to Historically, only two types of dispositions were available 16 for habeas petitions: either summary dismissal, or a decision 17 after a full hearing. 18 (E.D.Cal. 1982). 19 record by the submitting additional materials relevant to the 20 merits of the petition, including documentary exhibits and 21 evidentiary documents such as sworn answers to interrogatories 22 and affidavits. 23 expanding the record is to enable a judge to dispose of some 24 habeas petitions that are not dismissed on the pleadings, and Hillery v. Pulley, 533 F.Supp. 1189, 1196 However, Habeas Rule 7 permits expansion of the Habeas Rule 7(a), (b).2 One purpose of 25 26 27 28 2 The party against whom the additional materials are offered must have an opportunity to admit or deny their correctness. Habeas Rule 7(c). All materials to be included in the record must be submitted to the party against whom they are to be offered. Habeas Rule 7 Advisory Committee’s Note. 8 1 to do so without the time and expense required for an evidentiary 2 hearing. 3 Habeas Rule 7 Advisory Committee’s Note. In this case, the Court’s order directing the filing of a 4 response resulted in the expansion of the record which, in view 5 of the absence of a material issue of fact concerning the 6 authenticity or contents of that record, permits consideration of 7 the merits of the petition without delay. 8 9 10 11 Accordingly, the Court DEEMS the motion to dismiss to be an answer that responds to the petition. The Court will consider Petitioner’s opposition as well as the petition. The Court will proceed to determine the merits of the 12 petition. 13 Petitioner from proceeding to determine the merits of the 14 petition. 15 III. 16 According to the incident report of Officer A. Gleason dated It does not appear that any prejudice would result to Factual Summary 17 March 14, 2009 (Mot. Ex. A), while working at TCI’s main 18 visitation that day, Officer Gleason saw Petitioner approaching 19 the visitation desk with his visitors. 20 bulge in the front of Petitioner’s pants. 21 he spoke to Petitioner, who admitted that the bulge was from his 22 penis being erect and further admitted that it had been caused by 23 his female visitor’s rubbing his penis while they were in line to 24 exit visitation. 25 Gleason could see a large Gleason reported that (Mot. Ex. A 2.) After delivery of the report to Petitioner, it was reported 26 by the chairman of the unit discipline committee (UDC) who 27 initially reviewed Petitioner’s case that Petitioner stated to 28 the committee the following: 9 1 2 3 This is false, I never told the c/o that my erection was caused by my visitor rubbing my penis while they were in line. I do accept that was penis (sic) was erect[.] I did not realized (sic) I was erect until the c/o pointed it out. 4 (Id.) 5 officer (DHO) for further hearing because if Petitioner were 6 found guilty, the severity of the offense warranted greater 7 sanctions than were available the level of the UDC. 8 9 The UDC referred the charge to the disciplinary hearing (Id.) The DHO’s report dated April 23, 2009, was delivered to Petitioner on April 30, 2009. It shows that on the date of the 10 offense, Petitioner received advanced written notice of the 11 charge, a violation of Prohibited Acts Code 205, engaging in 12 sexual acts. 13 rights before the DHO by a counselor on March 18, 2009. 14 The hearing before the DHO was held on March 31, 2009. 15 Petitioner waived his right to a staff representative, requested 16 no witnesses, and denied the charge, saying, “[T]he officer 17 pulled me aside and I apologized. 18 erection.” 19 (Mot. Ex. B 4.) Petitioner was advised of his (Id.) I wasn’t aware I had an (Id.) The DHO considered the incident report and investigation and 20 found that the act was committed as charged. 21 finding, the DHO relied on Officer Gleason’s incident report of 22 Petitioner’s admission, Petitioner’s statement at the DHO hearing 23 that he had apologized upon being pulled aside, and Petitioner’s 24 assertion that he had not known that he had an erection. 25 The DHO wrote: 26 27 28 (Id. at 5.) The DHO has deemed your denials not credible. First, you admitted to the reporting officer that your female visitor was rubbing your penis while in line. Second, you claim to have not known you had an erection. Any reasonable person can conclude 10 In so (Id.) 1 that a man can’t help but know when he has an erection. 2 Therefore, having considered all relevant evidence, the DHO finds the greater weight of the evidence supports the finding that you did commit the prohibited act of Engaging in a Sexual Act, code 205. 3 4 (Id.) 5 The DHO imposed fifteen (15) days of disciplinary 6 segregation, twenty-seven (27) days of disallowance of good 7 conduct time, and a loss of visitation privileges for one (1) 8 year. (Id.) The DHO explained the choice of sanctions as 9 follows: 10 11 12 13 14 15 16 You were sanctioned to punish you and as a deterrent to commit another institutional rule violation. This type of behavior creates an unsafe environment for inmates and staff. Your sexual actions in visitation is (sic) a serious offense. Inmates are often assaulted by inmates whose family members and children witnesses (sic) the sexual act. This type of behavior will not be tolerated. (Id. at 6.) Petitioner was given a copy of the DHO’s report and was 17 informed of his right to appeal under the administrative remedy 18 procedure. (Id.) 19 Petitioner has submitted some documentation of the 20 administrative appellate process which reflects Petitioner’s 21 challenges to the evidence made in May and June 2009 on the 22 ground that because Officer Gleason did not speak Spanish and 23 Petitioner did not and could not speak English, Officer Gleason’s 24 report was impossible and groundless. 25 prior proceedings and the record would demonstrate that a 26 language barrier prevented him from communicating with prison 27 officers in English, and thus he suffered a violation of due 28 process of law due to the unreliability of the evidence, the 11 Petitioner asserted that 1 insufficiency of the evidence of guilt, and the fundamental 2 unfairness of the sanctions. 3 (Pet. 8-10.) In June 2009, James E. Burrell, an administrator in the 4 privatization management branch, informed Petitioner that the 5 evidence was considered sufficient to support the finding, and it 6 was reasonable for the DHO to have made his determination. 7 16.) 8 Administrator Burrell stated the following: In response to your claim that the language barrier prevented you from communicating with staff about this incident when it first happened, you did not raise this issue during [any] part of the disciplinary process. Therefore, this is not relevant at this time. The administrative remedy process is not an opportunity for you to present new evidence. 9 10 11 12 (Pet. (Id.) 13 In October 2009, Petitioner’s further appeal was denied by 14 Harrell Watts, Administrator of National Inmate Appeals, because 15 it was determined that each of Petitioner’s rights to due process 16 of law was upheld during the discipline process, the greater 17 weight of the evidence supported the DHO’s decision, and the 18 sanctions imposed were commensurate with policy. 19 20 (Id. at 11.) It therefore appears that Petitioner exhausted his administrative remedies. 21 IV. 22 Title 28 U.S.C. § 2241 provides that writs of habeas corpus Legal Standards 23 may be granted by a district court within its jurisdiction only 24 to a prisoner whose custody is within enumerated categories, 25 including but not limited to custody under the authority of the 26 United States and custody in violation of the Constitution, laws, 27 or treaties of the United States. 28 (3). 12 28 U.S.C. § 2241(a), (c)(1), 1 Procedural due process of law requires that where the state 2 has made good time subject to forfeiture only for serious 3 misbehavior, then prisoners subject to loss of good-time credits 4 must be given advance written notice of the claimed violation, a 5 right to call witnesses and present documentary evidence where it 6 would not be unduly hazardous to institutional safety or 7 correctional goals, and a written statement of the finder of fact 8 as to the evidence relied upon and the reasons for disciplinary 9 action taken. Wolff v. McDonnell, 418 U.S. 539, 563-64 (1974). 10 Confrontation, cross-examination, and counsel are not required. 11 Wolff, 418 U.S. at 568-70. 12 Further, where good-time credits are a protected liberty 13 interest, the decision to revoke credits must be supported by 14 some evidence in the record. 15 445, 454 (1985). 16 17 18 19 20 21 22 23 24 Superintendent v. Hill, 472 U.S. The Court in Hill stated: We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced....” United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S., at 106, 47 S.Ct., at 304. 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. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 260-261, 68 L.Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (CA8 1974). 25 Superintendent v. Hill, 472 U.S. at 455-56. 26 does not require that the evidence logically preclude any 27 conclusion other than the conclusion reached by the disciplinary 28 board; rather, there need only be some evidence in order to 13 The Constitution 1 ensure that there was some basis in fact for the decision. 2 Superintendent v. Hill, 472 U.S. at 457. 3 V. 4 Preliminarily, the Court notes that Petitioner does not 5 claim that the procedures followed were constitutionally flawed. 6 The record reflects the adequacy and timeliness of the notice 7 given to Petitioner, the sufficiency of the opportunity to 8 testify or present evidence, and the adequacy of the statement of 9 the pertinent findings and evidence. 10 11 Analysis A. Some Evidence to Support the Disciplinary Finding At all times pertinent to the petition, 28 C.F.R. § 541.13 12 has provided that prohibited acts of the high category of 13 severity include a violation of Prohibited Act Code § 205, which 14 is defined simply as “Engaging in sexual acts.” 15 § 541.13, tab. 3. 28 C.F.R. 16 Petitioner argues that the record lacks “some evidence” to 17 support the sanctions imposed because the facts as set forth in 18 Officer Gleason’s report, which Petitioner contends was the only 19 evidence relied upon by the DHO, were “impossible” because due to 20 Officer Gleason’s inability to speak Spanish and Petitioner’s 21 inability to speak English, the conversation could not have 22 occurred. 23 not based on personal knowledge.” 24 Officer Gleason’s assertions concerning any admissions made by 25 Petitioner are false and do not qualify as evidence. 26 Further, he argues that in light of Petitioner’s later denial 27 that he told Officer Gleason that the erection was caused by his 28 female visitor’s rubbing his penis, Officer Gleason’s report (Opp. 4, doc. 14.) Petitioner asserts that this “is 14 (Id.) He concludes that (Id.) 1 cannot constitute “some evidence” of the violation. 2 Finally, Petitioner asserts that Officer Gleason’s report 3 constitutes only an accusation and thus is not evidence. 4 5.) 5 (Id.) (Id. at In determining whether some evidence of the violation 6 supported the finding, the Court does not make its own assessment 7 of the credibility of witnesses or reweigh the evidence; however, 8 the Court must ascertain that the evidence has some indicia of 9 reliability and, even if meager, “not so devoid of evidence that 10 the findings of the disciplinary board were without support or 11 otherwise arbitrary.” 12 Cir. 1987) (quoting Superintendent v. Hill, 472 U.S. 445, 457 13 (1985)). 14 that the Hill standard was not satisfied where the only evidence 15 implicating the inmate was another inmate’s statement that was 16 related to prison officials through a confidential informant who 17 had no first-hand knowledge of any relevant statements or actions 18 by the inmate being disciplined and whose polygraph results were 19 inconclusive. 20 constitute “some evidence” supportive of various findings 21 includes the report of a prison guard who saw several inmates 22 fleeing an area after an assault on another inmate when no other 23 inmates were in the area, Superintendent v. Hill, 472 U.S. 456- 24 57; the statement of a guard that the inmate had admitted a theft 25 to supplement his income, coupled with corroborating evidence, 26 Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989); an 27 inmate’s admission and corroborating, circumstantial evidence, 28 Crane v. Evans, 2009 WL 148273 (N.D.Cal. Feb. 2, 2009), *3; and Cato v. Rushen, 824 F.2d 703, 704-05 (9th In Cato v. Rushen, 824 F.2d at 705, the Court found In contrast, evidence evaluated and found to 15 1 an inmate’s admission of having engaged in the violation plus an 2 officer’s report of having heard a recording of the offending 3 conversation, Dawson v. Norwood, 2010 WL 761226, *1 (C.D.Cal. 4 March 1, 2010). 5 Here, the record contains some evidence to support the 6 disciplinary finding that was relied upon by the DHO, including 7 Petitioner’s admission that he had an erection as a result of his 8 female visitor’s having rubbed his penis, Petitioner’s apology, 9 and Officer Gleason’s observation of Petitioner’s erection. 10 Although Petitioner asserts that there is a fatal lack of 11 personal knowledge, the record shows that Officer Gleason himself 12 observed Petitioner’s condition and spoke with Petitioner. 13 12.) 14 Gleason speaks English, the record of the hearing is devoid of 15 evidence concerning the ability of either Officer Gleason or 16 Petitioner to speak Spanish. 17 that Officer Gleason’s report was unreliable due to the officer’s 18 inability to speak Spanish. 19 previous admission does not change the result because this Court 20 will not reweigh the evidence. (Pet. Although it may be inferred from his report that Officer Thus, there is no basis to find Further, Petitioner’s denial of his 21 In addition, it appears that the DHO considered evidence 22 additional to Officer Gleason’s report consisting of Petitioner’s 23 statement to the UDC that he did not realize that his penis was 24 erect until the officer pointed it out to him. 25 and expressly discounted as unreasonable Petitioner’s claim that 26 he did not know that he had an erection. 27 28 The DHO evaluated (Pet. 14.) Petitioner argues that evidence of having an erection in proximity to a female is not sufficient to support a finding of 16 1 engaging in sexual acts in violation of § 205. 2 foregoing analysis reflects, the evidence established not the 3 mere fact of Petitioner’s erection, but also Petitioner’s 4 participation in sexual contact with a female. 5 is defined as of, relating to, or involving sex. 6 New International Dictionary of the English Language 2082 (2002). 7 Considering the plain meaning of the words, the Court concludes 8 that engaging in sexual contact with a member of the opposite sex 9 that results in an erection is action related to sex and thus 10 11 However, as the The word “sexual” Webster’s Third constitutes a sexual act or acts. In summary, the Court concludes that the determination of 12 the DHO was based on some evidence, and the procedures followed 13 met due process standards. 14 he was deprived of due process of law or that the prison 15 officials’ disciplinary findings were arbitrary or unsupported. 16 17 B. Petitioner has not established that Authority of the Hearing Officer Petitioner argues that the disciplinary hearing officer, DHO 18 C. Logan (Pet. 15), was not an employee of the BOP, and thus he 19 was not authorized to impose disciplinary sanctions. 20 asserts that TCI is operated by a private corporation, Management 21 Training Corporation (MTC), and that TCI merely has a contract 22 with the BOP to house federal inmates. 23 C.F.R. § 500.1(b), which contains definitions pertinent to the 24 BOP and Department of Justice (DOJ), and which defines “Staff” as 25 any employee of the BOP or Federal Prison Industries, Inc. 26 C.F.R. § 500.1(b). 27 28 Petitioner Petitioner relies on 28 28 The Court has reviewed the regulations and concludes that they do not exclude delegation of the authority to discipline to 17 1 contractor employees. 2 of inmate discipline and special housing units. 3 apply to inmates whose behavior is not in compliance with BOP 4 rules, and to “all persons committed to the care, custody, and 5 control (direct or constructive) of the Bureau of Prisons.” 6 C.F.R. § 541.10(a). 7 disciplinary action within BOP rules and institutional 8 guidelines. 9 require the warden to delegate to institution staff members the Regulations define the purpose and scope The regulations 28 Only “institution staff” may take 28 C.F.R. § 541.10(b)(1), (2). However, regulations 10 authority to hold the initial hearing. 11 discipline hearing officer (DHO) is defined by regulation as a 12 one-person, independent, discipline hearing officer who is 13 responsible for conducting institution discipline hearings and 14 who imposes appropriate sanctions for incidents of inmate 15 misconduct referred for disposition following the hearing before 16 the unit discipline committee (UDC). 17 BOP institution shall have an independent DHO who must be trained 18 and certified as a DHO and meet the other requirements. 19 C.F.R. § 541.16. 20 regional director for the region where the inmate is currently 21 located. 22 28 C.F.R. § 541.15. 28 C.F.R. § 541.2. A Each 28 The inmate may appeal a DHO’s decision to the 28 U.S.C. § 542(d)(2). The pertinent statutory framework is also consistent with 23 the delegation of authority to institutional staff. 24 U.S.C. § 4001(b)(2) provides that the Attorney General may 25 establish and conduct industries, farms, and other activities, 26 classify the inmates, and provide for their proper government, 27 discipline, treatment, care, rehabilitation, and reformation. 28 Title 18 U.S.C. § 4041 provides that the Attorney General may 18 Title 18 1 appoint not only a director who is in charge of the BOP and who 2 serves directly under the Attorney General, but also such 3 additional officers and employees as the Attorney General deems 4 necessary. 5 part that the BOP shall have charge of the management and 6 regulation of all federal penal and correctional institutions and 7 provide for the discipline of all persons convicted of offenses 8 against the United States. Title 18 U.S.C. § 4042(a)(3) provides in pertinent 9 From these broad, statutory grants of authority to the 10 Attorney General, it is clear that the Attorney General has been 11 given by Congress the authority to appoint a director of the BOP 12 and to delegate authority to discipline inmates to additional 13 officers and employees. 14 to DHO Curtis Logan is shown by the statement of work contract 15 submitted by Respondent as pertaining to Logan’s employment. 16 (Mot. Ex. C.) 17 this document. 18 performance requirements for the “management and operation of the 19 government owned-contractor-operated correctional institution in 20 Taft, California.” 21 to ensure that the facility is operated consistently with the 22 BOP’s mission and in compliance with the contract, the 23 Constitution, and all applicable law and regulations. 24 10.) 25 BOP written directives that establish policies. 26 The BOP reserves the right to have staff on site to monitor 27 contract performance. 28 determined by using the BOP’s guidelines and is subject to the That this authority has been delegated Petitioner does not dispute the authenticity of The provisions constitute the contract (Mot. Ex. F 3.) The contractor is required (Id. at The contractor must adhere to the most current version of (Id. at 16.) 19 (Id. at 14.) Employment suitability is 1 approval of the BOP; authority to approve all contractor staff 2 who work with inmates, to investigate alleged misconduct, and to 3 withdraw final employment approval authority for any employee 4 pursuant to specified standards, is retained by the BOP. 5 21-22, 27.) 6 maintained for the duration of a person’s contract performance. 7 (Id. at 24.) 8 9 (Id. at All credentials are required to be kept current and The agreement expressly provides for a contractor employee to be a DHO. The contract describes a DHO as a “government 10 trained and certified contractor employee responsible for 11 conducting disciplinary hearings.” 12 government to “provide specialized training to assist the 13 contractor in performing some specialized requirements,” 14 including discipline training for twenty-four (24) hours and DHO 15 training for twenty-four (24) hours, which is “mandatory as 16 described in Section J of the contract.” 17 (Id. at 12.) It requires the (Id. at 28.) Respondent has also submitted what purports to be a 18 certification from the United States Department of Justice, 19 Federal Bureau of Prisons, Management and Speciality Training 20 Center, Aurora, Colorado, of Curtis Logan’s DHO (Contract) 21 Training dated July 1, 2004. 22 dispute the authenticity of the document. 23 24 25 (Mot. Ex. D.) Petitioner does not The Court concludes that the authority to perform the duties of a DHO was delegated to contractor employee Logan. Petitioner relies on 18 U.S.C. § 4013. Section 4013(a) 26 authorizes the Attorney General to make payments from funds 27 appropriated for federal prisoner detention for specified 28 necessities of life for persons held in custody of a United 20 1 States marshal pursuant to federal law under agreements with 2 state or local units of government or contracts with private 3 entities. 4 entities and procedures to be followed to effectuate the 5 designation of districts that need additional support from 6 private detention entities. 7 “non-Federal” institutions, the section does not prohibit 8 delegation of BOP functions, let alone delegation to staff at 9 institutions like Tehachapi that are owned by the government and Section 4013(c) sets forth requirements for private Although the provision refers to 10 run by a private entity subject to the previously described, 11 extensive oversight by the BOP. 12 (Mot. Ex. C 9.) Petitioner relies on United States v. Cardona, 266 F.Supp.2d 13 558 (W.D.Tex. 2003). 14 of federal criminal charges of possession of a prohibited object 15 as an inmate in a federal prison and attempting to provide it to 16 a fellow inmate in violation of 18 U.S.C. § 1791(a)(1) and (2), 17 an inmate of a correctional facility that was privately owned by 18 a corporation that subcontracted the facility to a county, which 19 in turn contracted with the United States to house federal 20 inmates along with local prisoners, was not an inmate of a 21 federal prison because the facility was not a federal 22 correctional, detention, or penal facility within the meaning of 23 18 U.S.C. § 1791(d)(4). 24 the mere presence of federal prisoners did not make the facility 25 a federal facility where control over the daily operations and 26 management of the institution and the custody and care of federal 27 prisoners was not in the Attorney General as set forth in 18 28 U.S.C. § 4001(b)(1). In Cardona, it was held that for purposes Id. at 559-62. The court reasoned that The court employed traditional rules of 21 1 statutory construction and sought to avoid unconstitutional 2 vagueness. 3 Petitioner similarly relies on United States v. Rios-Flores, 4 318 F.Supp.2d 452 (W.D.Tex. 2003), holding that the same 5 institution was not a federal prison within the scope of 18 6 U.S.C. § 1791(d)(4). 7 The pertinent circumstances of the institution in the 8 present case differ from that involved in Cardona and Rios- 9 Flores. Here, the institution is federally owned, and the 10 government retains key elements of control over the employees and 11 the daily operations of the institution pursuant to the 12 contractual provisions submitted to the Court. 13 noted that the court in Rios-Flores expressly declined to take a 14 position on whether a privately run prison that contracted 15 directly with the United States would be considered a federal 16 penal facility. 17 18 Further, it is Rios-Flores, 318 F.Supp.2d at 453 n. 3. In summary, the Court concludes that the authority to discipline inmates at TCI was validly delegated to DHO Logan. 19 VI. 20 The Court concludes that Petitioner has not demonstrated Recommendation 21 that the disciplinary proceedings and findings were unauthorized 22 under federal law or violated his right to due process of law. 23 Petitioner has not shown that he is entitled to relief pursuant 24 to § 2241. 25 26 Accordingly, it is RECOMMENDED that the petition for writ of habeas corpus be DENIED. 27 These findings and recommendations are submitted to the 28 United States District Court Judge assigned to the case, pursuant 22 1 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 2 the Local Rules of Practice for the United States District Court, 3 Eastern District of California. 4 being served with a copy, any party may file written objections 5 with the Court and serve a copy on all parties. Such a document 6 should be captioned “Objections to Magistrate Judge’s Findings 7 and Recommendations.” 8 and filed within fourteen (14) days (plus three (3) days if 9 served by mail) after service of the objections. Within thirty (30) days after Replies to the objections shall be served The Court will 10 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 11 636 (b)(1)(C). 12 objections within the specified time may waive the right to 13 appeal the District Court’s order. 14 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 15 16 IT IS SO ORDERED. 17 Dated: ie14hj July 14, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 23
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