Waits v. United States of America et al, No. 3:2012cv00504 - Document 27 (D. Or. 2012)
Court Description: OPINION AND ORDER: The Court finds Petitioner's due process rights were not infringed in the disciplinary hearing at issue. Accordingly, the Petition for Writ of Habeas Corpus 1 is DENIED, with prejudice. The court declines to issue a C ertificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). See 10-page opinion and order attached. Ordered by Judge Marco A. Hernandez. (mr)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DAVID G. WAITS, Case No. 3:12-cv-00504-HZ Petitioner, v. JEFFREY THOMAS, Respondent. DAVID G. WAITS BOP Reg. #15172-006 U.S.P. Beaumont P.O. Box 26030 Beaumont, TX 77720 Pro Se Petitioner S. AMANDA MARSHALL United States Attorney NATALIE K. WIGHT Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204-2902 Attorneys for Respondent 1 - OPINION AND ORDER OPINION AND ORDER HERNANDEZ, District Judge. Petitioner filed this habeas action pursuant to § 22 41 while incarcerated at Federal ( "FCI Sheridan") . 1 Sheridan, Oregon Correctional 2 8 U.S. C. Institution, Petitioner alleges that his rights to due process of law were violated in a prison disciplinary hearing credits. that resulted in sanctions and the loss of good-time Because Petitioner has not met his burden of showing he was denied due process, the petition (#1) lS DENIED. BACKGROUND On January 30, 2012, Petitioner received a disciplinary incident report charging him with violating Code 201 (Fighting With Another Member). Person) and Code 307 (Refusing (#1, Pet.; #13, Attach. D. at 5.) an Order of "Old Chief," fight. Staff The charges arose from an incident at approximately 3:15 p.m. on January 29, Senior Officer K. any 2012, when Crosby observed Petitioner and another inmate, in a cell (#13, Attach. in what the officer characterized as D at 7.) a The inmates did not comply with Officer Crosby's order to stop and separate; he secured the cell, announced the fight over the radio, and secured the unit. (Id.) After additional staff arrived, Petitioner and Old Chief were put into restraints photographed. and (Id. taken at 8.) housing unit ("SHU") 1 to be medically assessed and They were then placed in the special (Id.) Petitioner is presently incarcerated at the United States Penitentiary, Beaumont, Texas. 2 - OPINION AND ORDER On February 3, 2 012, Petitioner appeared before the Unit Discip1ineCommittee ("UDC") with Petitioner's unit case manager, R. Ament presiding. Petitioner admitted to physical contact with the other inmate, and stated he and Old Chief knew each other from (#13, Attach. D at 5.) other institutions and were just wrestling. The UDC referred the matter to a Discipline Hearing Officer ( "DHO") for a hearing, recommending 45 days of disciplinary segregation and loss of 27 days good conduct time. Petitioner received and (Id.) signed a written copy of "Inmate Rights at Discipline Hearing" and "Notice of Discipline Hearing Before the DHO." at 23,24.) (Id., Petitioner appeared before DHO Cortez on February 16, 2012, on the Code 201 violation ghting with Another Person) . At the hearing, Petitioner denied the charge and stated he and Old Chief were at two other institutions together, never had problems, and were horse-playing. (#13, Attach. D at 1.) Petitioner did not present witnesses or evidence, although he had the opportunity to do so. DHO Cortez found the greater weight of the evidence supported a finding that Petitioner committed the prohibited act. (#13, Attach. D at 3-4.) In doing so, he took into account Petitioner's statements to the investigating officer and the UDC, that he and Old Chief knew each other and were wrestling; written reports regarding the photographic of Senior incident; evidence. Officer the (Id. Crosby medical at 2-3.) and Lt. evaluation DHO Van Cleave reports Cortez the and sanctioned Petitioner with the loss of 27 days Good Conduct Time; 30 days of 3 - OPINION AND ORDER disciplinary segregation; 30 days of disciplinary segregation - suspended pending 18 0 days clear conduct; and 90 days (Id. at 4.) preferred housing upon release from SHU. loss of BOP records do not show Petitioner appealed the disciplinary action through the administrative remedy process. (#13, Attach. C.) DISCUSSION Petitioner argues he is entitled to relief because he was denied the opportunity to call Old Chief as a witness, the only witness he requested; and because there was insufficient evidence ( #24.) to find him guilty of fighting. requested provide administrative them. (#1, at remedy 4; forms #24, at He further contends he but that staff Respondent 2-3.) did not argues Petitioner is not entitled to relief because he failed to exhaust his administrative remedies, and in any event his claim merit. I. without (#12, at 4.) Exhaustion of Administrative Remedies Although exhaustion of administrative remedies express jurisdictional requirement under 28 U.S.C. prisoners must exhaust their administrative § Ashcroft, 370 F.3d 994, F.3d 1037, 1047 997 is not an 2241, federal remedies prudential matter" prior to seeking habeas relief. 239 lS "as a See Laing v. (9th Cir. 2004); Castro-Cortez v.INS, (9th Cir. F.Supp.2d 379, 382 (D.Or.2002) 2001); c.f. Hicks v. Hood, 203 (the exhaustion requirement of the Prison Litigation Reform Act ("PLRA") does not expressly apply to petitions filed under 4 - OPINION AND ORDER § 2241). A court may waive the exhaustion requirement if pursuing administrative remedies would be futile. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir.1993). Respondent asserts exhaustion as a grounds for dismissal of the petition. A review of the BOP's Administrative Remedy Logs shows Petitioner did not pursue administrative remedies. However, Petitioner has submitted evidence that he requested forms to pursue administrative remedies on February 19, 2012, and again on March 1, 2012. (#24, at 7-8.) He also provides specific details of a verbal request he made to his Unit Case Manager the week of March 4, 2012. that (Id. at 3.) Petitioner The Court finds this to be credible evidence attempted to avail himself of available administrative remedies while he was in the SHU, but that he was unable to do so. The Court, therefore, has reviewed Petitioner's claim on the merits. II. Due Process "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." (1974). Wolff v. McDonnell, 418 U.S. 539, 556 However, some measure of process is required. In Wolff, the Supreme Court established three elements of due process that are required of prison officials in disciplinary hearings: (1) provide advance written notice of the disciplinary violation; (2) provide a written statement by a fact-finder as to the evidence relied upon and the reasons for disciplinary action; and (3) allow the charged inmate an opportunity to call witnesses and present 5 - OPINION AND ORDER documentary evidence in his defense when allowing him to do so "will not be unduly correctional goals." hazardous Wolff, to institutional safety or 418 U.S. at 563-66 (1974). Petitioner's due process claim is premised on his right to call witnesses and present documentary evidence in his defense. Petitioner alleges that his case manager, R. Ament, told him he could not call Old Chief as a witness because it was policy." (#24, at He contends Old Chief was 3-4.) "against the only witness who could support his defense that he and Old Chief were wrestling, not fighting. The nature of (Id.) prison operations necessitates that prison officials be afforded flexibility with respect to inmate requests for witnesses and evidence. 418 Wolff, u.s., at 566-69. "Generally, an inmate is allowed to present witnesses when to do so does not Bostic v. Ponte 566.) for v. threaten institutional 884 F.2d 1267, 1271-72 Carlson, 471 U.S. Real, safety or correctional goals." 491, 495 (1985) (9th Cir. 1989) (citing and Wolff, 418 U.S. at Prison officials are not required to document their reasons refusing Ponte, to 471 U.S. call at witnesses 496-97. in the However, administrative record. if the refusal of prison officials to call witnesses is the basis of a due process claim challenging disciplinary action and the deprivation of a "liberty" interest, such as good-time credits, the officials must present evidence of their reasons to the court if they are not discernable from the administrative record. 6 - OPINION AND ORDER Id. at 498-500. Here, the administrative record includes the "Incident Report" that investigating officer Lt. S. Laridon completed and gave to Petitioner on January 30, 2012, with a notation that Petitioner did not request any witnesses at that time; and the "Notice of Discipline Hearing Before the DHO," dated February 3, 2012, bearing what appears to be Petitioner's signature, and indicating that neither witnesses were requested. a staff and that of R. Ament, representative nor any (#13, at 5-6; 23.) The court record includes a declaration from R. Ament stating that, "[t]o my knowledge, the inmate did not request any witnesses be called." (#15, at 2.) Petitioner contends he asked to call Old Chief at the UDC hearing but was told it was against policy. at 3.) ( #2 4' The record also includes a declaration from DHO Cortez stating: I have no recollection of [Petitioner] asking to call a witness at the DHO hearing on this matter. In addition, I have reviewed the disciplinary record and find no indication the [Petitioner] requested a witness at any stage of the disciplinary process, despite the fact he was advised of his right to identify witnesses and was given the opportunity to do so several times. The DHO report and all of the documentation considered by me was provided as attachment "D".... These records demonstrate the Petitioner was offered the opportunity to identify witnesses by the investigating Lieutenant on January 30, 2012, (see p. 6 at '.IT 25). He was afforded another opportunity by the [UDC] on February 3, 2012, and signed a Notice of Discipline Hearing Before the DHO form indicating he neither requested a staff representative nor any witnesses (see p. 23) . Finally, he appeared before me for the DHO hearing on February 16, 2012, and indicated he did not wish to call any witnesses (see p.1, '.li(III) (C) (1)). [Petitioner] was not denied his right to call a witness on his behalf. 7 - OPINION AND ORDER (#14, at 2-3.) Petitioner appears to acknowledge that he did not request a witness at the hearing before DHO Cortez. (#24, at 3.) However, he explains that he had been told policies precluded his calling Old Chief as a witness, presumably because Old Chief was involved in the prohibited conduct. (Id.) On the record before the Court, there is insufficient evidence to conclude that Petitioner's right to call witnesses was denied. Furthermore, the disciplinary hearing right of inmates to a limited one. is call witnesses Given Old in a Chief's participation in the prohibited conduct, there were obvious issues of his self-interest and credibility as a witness, and institutional concerns in maintaining order, discipline, and authority could be found to outweigh Petitioner's interest in having Old Chief testify. B. Sufficiency of the Evidence Petitioner is understood to argue that there was insufficient evidence on which to which he wrestling challenging the seeking to find he admits engaged in to. Petitioner standard of proof used import the standard fighting, of in proof the is, rather in than essence, DHO hearing and applied in criminal proceedings. In Superintendent v. Court held that hearing cannot a habeas Hill, court substitute its 472 U.S. 445 reviewing a view of (1985), the Supreme prison disciplinary the facts for the determinations made in the disciplinary hearing, but that there must be "some evidence" supporting the disciplinary determination to 8 - OPINION AND ORDER satisfy due process. if there was some 472 U.S. at 454-456. evidence from which "This standard is met the administrative tribunal could be deduced .... " quotation and citation omitted) . The required to examine the entire record, conclusion of the Id. at 455 (internal reviewing court lS not independently assess the credibility of witnesses, or weigh the evidence to determine whether the evidence standard is met. Id. at 455. Rather, the court's review is to ascertain whether there is any evidence in the record that supports the conclusion made by the DHO. Id. The standards of proof applicable to federal DHO hearings are found in BOP regulations, and specify, in relevant part: (f) Evidence and witnesses. You are entitled to make a statement and present documentary evidence to the DHO on your own behalf. The DHO will consider all evidence presented during the hearing. The DHO's decision will be based on at least some facts andr i f there is conflicting evidencer on the greater weight of the evidence. Witnesses may appear at the DHO's hearing as follows: * * * (3) You or your staff representative may request witnesses appear at the hearing to testify on your behalf. Your requested witnesses may not appear if, in the DHO's discretion, they are not reasonably available, their presence at the hearing would jeopardize institution security, or they would present repetitive evidence. (4) If your requested witnesses are unavailable to appear, written statements can be requested by either the DHO or staff representative. The written statements can then be considered during the DHO's hearing. (5) Only the DHO may directly question witnesses at the DHO's hearing. Any questions by you or your staff representative must be submitted to the DHO, who will present the question to the witness in his/her discretion. 28 CFR §541.8 (emphasis added). 9 - OPINION AND ORDER As detailed in the background section above, DHO Cortez weighed Petitioner's denials of fighting immediately after the incident. against the reports written DHO Cortez concluded the weight of the evidence supported finding Petitioner had engaged in fighting. (#13, Attach. Report, D.) In reviewing the incident reports and the DHO the Court finds there is 11 some evidence conclusion that Petitioner engaged in fighting, 11 to support the particularly the fact the inmates did not immediately separate when told by Senior Officer Crosby to do so. Accordingly, the requirements for due process were satisfied, and habeas relief is not warranted. CONCLUSION For the reasons stated above, the Court finds Petitioner ' s due process rights were not infringed in the disciplinary hearing at issue. Accordingly, the Petition for Writ of Habeas Corpus (#1) is DENIED, with prejudice. The court declines to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. DATED this -r day of W-e'ii ember, 2 012 . United States District Judge 10 - OPINION AND ORDER
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