Troiano v. Thomas, No. 3:2011cv01004 - Document 20 (D. Or. 2012)
Court Description: OPINION AND ORDER. The Court DENIES the Petition for Writ of Habeas Corpus. IT IS SO ORDERED. Signed on 6/28/2012 by Judge Anna J. Brown. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTL.AND DIVISION LAWRENCE TROIANO, Case No. 3:11-cv-01004-BR Petitioner, OPINION AND ORDER v. J.E. THOMAS, Respondent. ANTHONY D. BORNSTEIN Assistant Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 Attorney for Petitioner AMANDA MARSHALL United States Attorney RONALD K. SILVER Assistant United States Attorney 1000 SW Third Avenue Suite 600 Portland, OR 97204 Attorneys for Respondent 1 - OPINION AND ORDER - BROWN, Judge. Petitioner, an inmate at FCI Sheridan, corpus action pursuant to 28 U.S.C. § 2241. brings this habeas For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus. BACKGROUND On November 1, 2010, this Court imposed a 68-month sentence against Petitioner of Distribution 841 (a) (1), (b) (1) (c) after Heroin he in pleaded guilty violation to of one of u.s.c. 21 count § Petitioner has a projected release date of November 11, 2014. Prior to the sentencing hearing, Petitioner was detained at While Petitioner was there, FCI Sheridan. approximately 6: 4 5 p.m. on June 4, BOP Senior Officer Specialist 2010, J. at Lara walked past cell 108 and noticed a smell of intoxicants coming from inside. Officer Lara opened the door and observed Petitioner "in direct possession of a bag of homemade intoxicants." She noted that the smell of intoxicants was very strong inside the cell. the Officer Lara saw Petitioner place the bag he was holding in toilet additional and rip inmates it open. who were Officer standing Lara near also two observed two trash cans containing intoxicants. Lieutenant D. Payne took photographs of the intoxicants in the toilet and the two trash cans. Senior Officer Brian Gray tested the intoxicants, which tested positive for .06% alcohol. 2 - OPINION AND ORDER - - - . - - - - - - - - - - Officer Lara wrote Incident Report No. 2024338 which charged Petitioner with a violation of Code 222, Possessing or The Incident Report also charged a violation Using Intoxicants. of Code 316, Making, "Being in an Unauthorized Area," because Petitioner was not assigned to that cell. On June 5, 2010, Lieutenant J. Keller delivered a copy of the Incident Report to Petitioner Petitioner rights. Lieutenant Keller, On June 8, indicated and advised he understood. of According his to Petitioner then stated "It's right." 2010, the Unit Disciplinary Committee convened to consider the Incident Report. Petitioner stated: Petitioner "Yeah, it was mine, ("UDC") During the UDC meeting, I was helping someone The UDC referred the Incident Report to the Discipline out." Hearing Officer ( "DHO") for a hearing. Petitioner signed a Notice of Discipline Hearing Before the DHO indicating he did not wish to have a staff representative or to have witnesses at the DHO hearing. On June 12, 2010, DHO Daniel Cortez conducted a disciplinary During hearing. the hearing, Petitioner "I stated: was in possession of the intoxicants and I was in someone else's cell. I was not supposed to do either. I wasn't drinking." Petitioner did not offer any documentation or other evidence in his defense. DHO Cortez admissions to considered Lieutenant 3 - OPINION AND ORDER - Petitioner's Keller and the admission, UDC, as his well prior as the written statement of Lara, and Gray, Officer photographs the a memorandum taken submitted by Senior Officer by Lieutenant Payne. The DHO found Petitioner committed the prohibited acts as charged. As sanctions for the Code 222 violation, the DHO disallowed 27 days of good conduct Disciplinary Segregation privileges. For time the and Code ("GCT") 45 316 and days of violation, imposed loss the 21 of DHO of commissary imposed additional 4 5 days of loss of commissary privileges, suspended pending 180 days of clear conduct. days an which was A copy of the DHO's report was addressed to Petitioner and placed in the inmate mail on July 9, 2010. Petitioner did not appeal the DHO's decision. On November 29, Officer Specialist Petitioner's cell. 2010, at approximately P.L. Campbell 6:50 conducted a.m., a Senior search of Officer Campbell found a trash can covered with a towel in Petitioner's locker. In the trash can, Officer Campbell found a yellow bag containing a liquid which emitted a strong odor of grapefruit. intoxicants. Officer The Campbell Officer Campbell tested the liquid for liquid wrote tested Incident positive Report No. for .40% alcohol. 2095752 charging Petitioner with violating Code 222, "Making, Possessing, or Using Intoxicants." On November 29, 2010, Lieutenant M. Morris-Silveira delivered a copy of the Incident Report to Petitioner and advised Petitioner 4 - OPINION AND ORDER - of his rights. Petitioner indicated he understood. Lieutenant Marris-Silveira, me. According to Petitioner then said "It belongs to I made it out of grapefruit." On December Incident Report. 1, 2010, consider the During the UDC meeting, Petitioner stated: "It was grapefruit juice." the UDC convened to Based on Officer Campbell's statement in the incident report and the positive reading for intoxicants, the UDC referred the Incident Report to the DHO for a hearing. Petitioner signed a Notice of Discipline Hearing Before the DHO indicating he did not wish to have a staff representative or to have witnesses at the DHO hearing. On December 10, 2010, DHO During the hearing, hearing. juice from grapefruits I Roszel held a Petitioner stated: got at breakfast. because it was in my locker. with it." J. I disciplinary "I made the took possession I was attempting to do something Petitioner did not offer any documentation or other evidence in his defense. The DHO considered Petitioner's statements at the DHO hearing and to the UDC and Lieutenant Morris-Sil veira. considered the written Incident Report, The DHO also as well as a memorandum written by Officer Campbell which stated the following: On 29 November 2010, at approximately 0658, after departing cell 203, Inmate Troiano/72379-065, called at me, stating he needed to talk to me. After entering the officer station Troiano indicated that hooch is his and his roommate has no knowledge. He asked me several 5 - OPINION AND ORDER - times not to report the finding the hooch to the Operations Lt and for me just to have him pour out down the toilet while I watch. He stated he would move to a different cell and restrict himself in his room and not come out for the rest of the day. The DHO found Petitioner committed the prohibited act charged in the Incident Report. By way of sanctions, as the DHO disallowed 27 days of GCT and imposed 20 days of disciplinary segregation and 45 days of loss of commissary privileges. The loss of commissary privileges was suspended pending 180 days clear However, conduct. because Petitioner had not maintained clear conduct for 180 days since his previous Incident Report, the DHO executed the sanction of 45 days of loss of commissary privileges from Incident Report 2024338. was addressed to A copy of the DHO's written report Petitioner and placed in the December 17, 2010. inmate mail on Petitioner did not appeal the DHO's decision. On August 18, 2011, Petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in this Court. In the Petition he alleges his due process rights were violated in the course of both disciplinary proceedings. Respondent argues Petitioner is not entitled to relief because he failed to exhaust his available administrative remedies and because, in any event, he was provided all the process due under the circumstances. 6 - OPINION AND ORDER - DISCUSSION I. Exhaustion of Remedies In general, prisoners federal must exhaust their administrative remedies prior to filing a habeas corpus petition under 28 U.S.C. § Martinez v. Roberts, 2241. (9th Cir. 198 6) (per curiam) . is not jurisdictional, 804 F.2d 570, 571 Although the exhaustion requirement this court may dismiss a habeas petition for failure to exhaust administrative remedies. I d. Exhaustion may be excused if the administrative are inadequate, futile, or where pursuit cause irreparable injury. remedies of the administrative See Laing v. Ashcroft, remedies would 370 F.3d 994, 1000-01 (9th Cir. 2004). Petitioner argues exhaustion of remedies is not jurisdictional and that it should be excused because it is now futile to do so. While it appears Petitioner did not diligently pursue his administrative remedies, the Court nevertheless excuses the exhaustion requirement in the circumstances of this case in order to reach the merits which, as noted, results in the denial of the Petition in any event. II. Due Process Rights A. Legal Standards In order to obtain relief pursuant to 28 U.S.C. § 2241, a petitioner must establish that he is "in custody in violation of 7 - OPINION AND ORDER - the Constitution or laws or treaties of the United States." u.s.c. § 2241(b) (3) Habeas corpus jurisdiction is 28 available under§ 2241 for a prisoner's claim that he has been denied good conduct credits without due process of law. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) It is well established that an inmate must be afforded procedural protections before he can be deprived of a protected liberty interest, which includes good conduct time credits. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974); Superintendent v. Hill, 472 u.s. 445, 454 However, (1985). hearings are not part of a "[p]rison criminal prosecution, disciplinary and the full panoply of rights due a defendant in such proceedings does not apply." Wolff, 418 U.S. at (2) Due process in prison (1) the right to appear before an disciplinary hearings requires: impartial decision-maker; 556. 24-hour advance written notice of the disciplinary charges; (3) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; (4) assistance from an inmate representative if the charged inmate is illiterate or complex issues are involved; and factfinder of the evidence disciplinary action. (5) a written statement by the relied on and the reasons for the Wolff, 418 U.S. at 563-77; Hill, 472 U.S. at 454; see also Argento v. Thomas, 2010 WL 3661998, *4 (D. Or. Sept. 17, 2010). 8 - OPINION AND ORDER - The substantive requirements of due process are satisfied if there is "some evidence" to support the decision by the prison disciplinary officials. Hill, 472 U.S. at 454. The Supreme Court explained the "some evidence" standard as follows: 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. Id. In order for a litigant to prevail on a claim of insufficient evidence in a disciplinary hearing context, he must show that the record in his case is "so devoid of evidence that the findings of the . . . board were without support or otherwise arbitrary." I d. at 457. B. Analysis 1. Incident Report 2024388 Petitioner argues his due process rights were violated by the imposition of disciplinary sanctions in the form of loss of good time credits for the June 4, 2010, incident because there was not reliable evidence that the liquid found in his cell was anything other than grapefruit juice. without merit. Petitioner Petitioner's argument is patently At the disciplinary hearing on June 12, admitted to the DHO "I was in intoxicants and I was in someone else's cell. 9 - OPINION AND ORDER - possession 2 010, of the I did know I was not supposed to do either. Exh. 2, p. I wasn't drinking it." Cortez Decl., This admission, along with the evidence that the 3. reporting officer smelled a strong odor of intoxicants in the cell and that the liquid found in the cell was tested positive for the presence of alcohol is sufficient for the DHO to conclude Petitioner committed the prohibited act. Petitioner also argues the June 2010 sanction violated his due process rights because he had not yet been sentenced for his crime and could not therefore be sanctioned with the loss of good In Resnick v. Adams, time credit. 37 F.Supp.2d 1154 1999), the same argument was considered and rejected. (C.D. Cal. This Court agrees with the analysis in Resnick. Pretrial detainees may not be punished by prison officials for the crime or crimes that led to their incarceration. Wolfish, 441 U.S. 520, 538-39 (1979) They may, Bell v. however, be disciplined for misconduct they commit while awaiting trial and/or sentencing. Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996). Imposing sanctions on a pretrial detainee for misconduct committed during his detention is "constitutional if it also serves some legitimate governmental objective such as addressing a specific institutional violation and is seriousness of the violation." A federal prisoner who is not excessive light of the Bell, 441 U.S. at 538-39. serving a term of imprisonment pursuant to a sentence of more than one year 10 - OPINION AND ORDER - in (other than a term for the duration of the prisoner's life), days of credit per year for good conduct. may receive up to 54 18 U.S.C. § 3624(b) (1). Although pretrial detainees do not automatically earn good time credit, they may be recommended for good time credit for the time spent in 52 3. 17 ( 1) pretrial or pre-sentence See custody. 28 C.F.R. § (" [a] pretrial detainee may not earn good time while in pretrial status. A pretrial detainee, however, may be recommended for good time credit. This recommendation shall be considered in the event that the pretrial detainee is later sentenced on the crime for which he or she was in pretrial status.") the Bureau determines that the However, "if prisoner has not satisfactorily complied with such institutional regulations, the prisoner shall receive no such credit toward service of the prisoner's sentence or shall receive such lesser credit as the Bureau determines is appropriate." 18 U.S.C. § 3624(b) (1). As in Resnick, Petitioner was eligible to be awarded up to 54 days of good time credit annually, provided he was later sentenced to a prison term exceeding one year on his offense of conviction and he satisfactorily complied with institutional Due to his disciplinary violation, however, regulations. Petitioner lost 27 days of good conduct time he could have been eligible to receive. Because federal pretrial detainees may be punished for prison misconduct by disallowing good time credit, and because Petitioner 11 - OPINION AND ORDER - received the process he was due, his challenge to the June 2010 disciplinary sanction lacks merit. 2. Incident Report 2095752 Petitioner argues the evidence was not sufficient for the DHO to find Petitioner committed a violation in connection with the November 2010 incident. Again, however, the Court concludes the record contains "some evidence" from which a DHO could conclude Petitioner intoxicants. was guilty of the making, possessing, or using In the incident report prepared by Officer Campbell, he stated that during a November 29, 2010, search of Petitioner's cell he found a towel covering a trash containing a yellow bag of liquid which smelled strongly of grape liquid showed it contained alcohol. fruit. A test of the In a separate memorandum on that same date, Officer Campbell related what happened after he left Petitioner's cell: [Petitioner] called at me, stating he needs to talk to me. After entering the officer station Troiano indicated that hooch is his and his roommate has no knowledge. He asked me several times not to report the finding the hooch to the Operation Lt and for me just to have him pour out down the toilet while I watch. He stated that he would move to a different cell and restrict him self in his room and not come out for the rest of the day. Cortez Decl., Exh. 3, p. 7. Finally, at the disciplinary hearing, Petitioner stated "I made the breakfast. juice from grapefruits I I took possession because it was in my locker. attempting to do something with it." 12 - OPINION AND ORDER - got at I was Cortez Decl., Exh. 3, p. 3. Petitioner argues the test results on the liquid are unreliable, but he provides no evidence to support this assertion. Petitioner also asserts Officer Campbell somehow confused the intoxicants found in his cell with those found in another inmate's cell but again, provides no evidence in support. Finally, Petitioner's present assertion that the liquid was only juice is not sufficient. a reasonable Accordingly, The DHO relied on "some evidence" that could lead person to conclude Petitioner possessed alcohol. Petitioner received the process he was due for the November 2010 disciplinary sanction. CONCLUSION For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus. IT IS SO ORDERED. DATED this ;)..c/'- day of June, 2011. ANNA J. BROWN United States District Judge 13 - OPINION AND ORDER - F:\Share\Brown-LawClerks\ll-1004troiano0627opin.wpd
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