(HC) Palacios v. Benov, No. 1:2013cv01531 - Document 23 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 19 Respondent's Motion to Dismiss be GRANTED re 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Barbara A. McAuliffe on 6/6/2014. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAIME PALACIOS, Case No. 1:13-cv-01531-LJO-BAM-HC 12 FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 19) 13 14 15 16 Petitioner, v. MICHAEL L. BENOV, Respondent. FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS AS MOOT (DOC. 1) AND TO DIRECT THE CLERK TO CLOSE THE ACTION OBJECTIONS DEADLINE: 30 DAYS 17 18 19 Petitioner is a federal prisoner proceeding pro se and in forma 20 pauperis with a petition for writ of habeas corpus pursuant to 28 21 U.S.C. § 2241. The matter has been referred to the Magistrate Judge 22 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. 23 Pending before the Court is the Respondent’s motion to dismiss the 24 petition as moot, which was filed on March 3, 2014, and supported 25 with documentation submitted on March 26, 2014. 26 opposition to the motion on March 17, 2014. Petitioner filed Although the time for 27 filing a reply has passed, no reply has been filed. Further, 28 Petitioner did not take the opportunity to file supplemental 1 1 opposition after the Respondent’s supporting documentation was 2 filed. 3 I. Background 4 Petitioner, an inmate of the Taft Correctional Institution 5 (TCI), challenges the disallowance of forty-one days of good conduct 6 time credit that Petitioner suffered as a result of prison 7 disciplinary findings, initially made at TCI on or about December 8 29, 2011, that he engaged in prohibited conduct by possessing a 9 hazardous tool (a cell phone) on or about November 19, 2011. 10 doc. 1 at 9, 13-14.) (Pet., Petitioner challenges the loss of credit and 11 seeks invalidation of the sanction. 12 claims in the petition: Petitioner raises the following 1) because the disciplinary hearing officer 13 (DHO) was not an employee of the Federal Bureau of Prisons (BOP) and 14 thus lacked the authority to conduct the disciplinary hearing and 15 make findings resulting in punishment, including disallowance of 16 good time credit, Petitioner suffered a violation of his right to 17 due process of law; and 2) because the hearing officer was not an 18 employee of the BOP but rather was an employee of a private entity 19 with a financial interest in the disallowance of good time credits, 20 Petitioner’s due process right to an independent and impartial 21 decision maker at the disciplinary hearing was violated. (Id. at 3- 22 9.) 23 Respondent moves for dismissal of the petition as moot because 24 the disciplinary charges were reheard via teleconference on February 25 27, 2014, by a certified disciplinary hearing officer of the BOP. 26 At the rehearing, Petitioner admitted the violation. The BOP DHO 27 found that Petitioner had committed the prohibited misconduct, and 28 she assessed the same disallowance of good conduct time credit 2 1 (forty-one days), but she reduced the time of administrative 2 segregation and loss of telephone privileges. (Decl., doc. 22, 2-4; 3 attchmt. 4, doc. 22, 19-21.) 4 II. Mootness 5 Federal courts lack jurisdiction to decide cases that are moot 6 because the courts= constitutional authority extends to only actual 7 cases or controversies. 8 U.S. 67, 70-71 (1983). Iron Arrow Honor Society v. Heckler, 464 Article III requires a case or controversy 9 in which a litigant has a personal stake in the outcome of the suit 10 throughout all stages of federal judicial proceedings and has 11 suffered some actual injury that can be redressed by a favorable 12 judicial decision. Id. A petition for writ of habeas corpus 13 becomes moot when it no longer presents a case or controversy under 14 Article III, ' 2 of the Constitution. 15 477, 479 (9th Cir. 2003). Wilson v. Terhune, 319 F.3d A petition for writ of habeas corpus is 16 moot where a petitioner=s claim for relief cannot be redressed by a 17 favorable decision of the court issuing a writ of habeas corpus. 18 Burnett v. Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005) (quoting 19 Spencer v. Kemna, 523 U.S. 1, 7 (1998)). 20 jurisdictional. Mootness is See, Cole v. Oroville Union High School District, 21 228 F.3d 1092, 1098-99 (9th Cir. 2000). Thus, a moot petition must 22 be dismissed because nothing remains before the Court to be 23 remedied. 24 Spencer v. Kemna, 523 U.S. 1, 18. Here, documentation submitted by Respondent in support of the 25 motion to dismiss demonstrates that the claims initially alleged by 26 Petitioner are no longer in controversy. The charges were reheard 27 by an officer who had the very qualifications that Petitioner had 28 alleged were required by principles of due process of law and the 3 1 pertinent regulations. It is undisputed that the findings and 2 sanctions that constituted the object of Petitioner’s challenges in 3 the petition have now been superseded by the findings and sanctions 4 of the certified BOP DHO. 5 When, because of intervening events, a court cannot give any 6 effectual relief in favor of the petitioner, the proceeding should 7 be dismissed as moot. Calderon v. Moore, 518 U.S. 149, 150 (1996). 8 In the present case, it appears that the only relief that Petitioner 9 sought was invalidation of the findings and associated sanctions. 10 It appears that the rehearing of the incident report by an 11 indisputably qualified DHO has effectuated the relief sought by 12 Petitioner. Thus, it is no longer possible for this Court to issue 13 a decision redressing the injury. 14 Petitioner argues that the controversy is not moot because the 15 rehearing was part of disciplinary proceedings that were wholly 16 invalid or unconstitutional. The asserted invalidity is based on 17 the fact that in the earlier stages of the disciplinary process, 18 employees of the private prison management company, who did not 19 constitute BOP staff, participated in violation of various 20 regulations, including 28 C.F.R. § 541.5, which requires “staff” to 21 witness or suspect a violation and issue an incident report, 28 22 C.F.R. § 541.5(a); requires a “Bureau staff member” to investigate 23 the incident report, 28 C.F.R. § 541.5(b); and directs that it is 24 “staff” who ordinarily serve on a unit disciplinary committee, a 25 body which considers disciplinary charges before the charges are 26 heard by a DHO, § 541.7(b). Petitioner argues that the hearing and 27 rehearing process evinced deliberate indifference to his liberties 28 and violated his Fifth Amendment right to equal protection of the 4 1 laws and his Eighth Amendment right to be free from cruel and 2 unusual punishment. 3 However, the documentation attached to the petition shows that 4 the BOP DHO considered not only the incident report and 5 investigation, but also photographic evidence and Petitioner’s 6 repeated admissions of the truth of the incident report made during 7 the investigation, at a unit disciplinary hearing, and at the 8 rehearing before the BOP DHO. (Doc. 22, 19-20.) The photographs 9 and Petitioner’s repeated admissions provide strong and independent 10 support for the finding of misconduct and also undercut Petitioner’s 11 general allegation that he suffered a taint from the earlier stages 12 of the disciplinary process. 13 Further, the documentation establishes that Petitioner received 14 all procedural due process due under Wolff v. McDonnell, 418 U.S. 15 539 (1974). Procedural due process of law requires that where the 16 state has made good time subject to forfeiture only for serious 17 misbehavior, then prisoners subject to a loss of good-time credits 18 must be given advance written notice of the claimed violation, a 19 right to call witnesses and present documentary evidence where it 20 would not be unduly hazardous to institutional safety or 21 correctional goals, and a written statement of the finder of fact as 22 to the evidence relied upon and the reasons for disciplinary action 23 taken. Wolff v. McDonnell, 418 U.S. at 563-64. Further, if the 24 inmate is illiterate, or the issue so complex that it is unlikely 25 that the inmate will be able to collect and present the evidence 26 necessary for an adequate comprehension of the case, the inmate 27 should have access to help from staff or a sufficiently competent 28 inmate designated by the staff. However, confrontation, cross5 1 examination, and counsel are not required. 2 70. Wolff, 418 U.S. at 568- Where good-time credits are a protected liberty interest, the 3 decision to revoke credits must also be supported by some evidence 4 in the record. 5 Superintendent v. Hill, 472 U.S. 445, 454 (1985). Here, Petitioner’s admission of responsibility precludes any 6 claim of a lack of evidence to support the disciplinary finding. 7 Likewise, the documentation shows that Petitioner received adequate 8 notice; waived witnesses, staff representation, and presentation of 9 evidence; and received a written statement of the decision. 10 22, 12-21.) (Doc. In light of these circumstances, it does not appear 11 that Petitioner suffered any prejudice from either participation of 12 non-BOP staffers in the earlier stages of the disciplinary process 13 or any delay experienced in the course of the rehearing process. 14 It is recognized that generally a failure to meet a prison 15 guideline regarding a disciplinary hearing would not alone 16 constitute a denial of due process. 17 1267, 1270 (9th Cir. 1989). See Bostic v. Carlson, 884 F.2d In the absence of controlling 18 authority, the Court notes that several courts have concluded that 19 to establish a denial of due process of law, prejudice is generally 20 required. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) 21 (proceeding pursuant to 28 U.S.C. § 2254); see also Tien v. Sisto, 22 Civ. No. 2:07 cv-02436-VAP (HC), 2010 WL 1236308, at *4 (E.D.Cal. 23 Mar. 26, 2010) (recognizing that while neither the United States 24 Supreme Court nor the Ninth Circuit Court of Appeals has spoken on 25 the issue, numerous federal Courts of Appeals, as well as courts in 26 this district, have held that a prisoner must show prejudice to 27 state a habeas claim based on an alleged due process violation in a 28 disciplinary proceeding, and citing Pilgrim v. Luther, 571 F.3d 201, 6 1 206 (2d Cir. 2009); Howard v. United States Bureau of Prisons, 487 2 F.3d 808, 813 (10th Cir. 2007); Piggie v. Cotton, 342 F.3d 660, 666 3 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992); 4 Poon v. Carey, no. Civ. S 05 0801 JAM EFB P, 2008 WL 5381964, *5 5 (E.D.Cal. Dec. 22, 2008); and Gonzalez v. Clark, no. 1:07 CV 0220 6 AWI JMD HC, 2008 WL 4601495, at *4 (E.D.Cal. Oct. 15, 2008)); see 7 also Smith v. United States Parole Commission, 875 F.2d 1361, 13688 69 (9th Cir. 1989) (holding in a § 2241 proceeding that a prisoner 9 challenging the government’s delayed compliance with a procedural 10 regulation that required counsel to be appointed before a record 11 review in parole revocation proceedings was required to demonstrate 12 prejudice to be entitled to habeas relief); Standlee v. Rhay, 557 13 F.2d 1303, 1307-08 (9th Cir. 1977) (stating that burden is on a 14 parolee to demonstrate that failure to permit a witness’s live 15 testimony at a revocation hearing was so prejudicial as to violate 16 due process). 17 In summary, the claims in the petition before the Court are no 18 longer subject to redress by the Court. Further, the factual 19 accuracy of the findings on rehearing are undisputed, the record 20 establishes that Petitioner received procedural due process of law, 21 and there is no indication that Petitioner suffered any legally 22 cognizable prejudice. 23 Although Petitioner now alleges that other details of the early 24 stages of the prison’s disciplinary program are contrary to 25 regulation, the Court concludes that in light of the foregoing 26 analysis, it does not appear that these aspects of Petitioner’s 27 confinement bear any relationship to the legality or duration of 28 7 1 Petitioner’s confinement and thus do not fall within the core of 2 habeas corpus jurisdiction. A federal court may not entertain an action over which it has 3 4 no jurisdiction. 5 6 7 8 2000). Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. Relief by way of a writ of habeas corpus extends to a person in custody under the authority of the United States if the petitioner can show that he is “in custody in violation of the 9 Constitution or laws or treaties of the United States.” 10 § 2241(c)(1) & (3). 28 U.S.C. A habeas corpus action is the proper mechanism 11 for a prisoner to challenge the fact or duration of his confinement. 12 13 14 15 Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990) (holding in a Bivens1 action that a claim that time spent serving a state sentence should have been 16 credited against a federal sentence concerned the fact or duration 17 of confinement and thus should have been construed as a petition for 18 writ of habeas corpus pursuant to ' 28 U.S.C. ' 2241, but that to the 19 extent that the complaint sought damages for civil rights 20 violations, it should be construed as a Bivens action); Crawford v. 21 22 Bell, 599 F.2d 890, 891B892 (9th Cir. 1979) (upholding dismissal of 23 a petition challenging conditions of confinement and noting that the 24 writ of habeas corpus has traditionally been limited to attacks upon 25 26 27 28 the legality or duration of confinement); see, Greenhill v. Lappin, 376 Fed. Appx. 757, 757-58 (9th Cir. 2010) (unpublished) (holding 1 The reference is to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 8 1 that the appropriate remedy for a federal prisoner's claim that 2 relates to the conditions of his confinement is a civil rights 3 4 5 6 action under Bivens); but see Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (holding that habeas corpus is available pursuant to § 2241 for claims concerning denial of good time credits and 7 subjection to greater restrictions of liberty, such as disciplinary 8 segregation, without due process of law); Cardenas v. Adler, no. 9 1:09-cv-00831-AWI-JLT-HC, 2010 WL 2180378 (E.D.Cal., May 28, 2010) 10 11 12 13 (holding that a petitioner's challenge to the constitutionality of the sanction of disciplinary segregation and his claim that the disciplinary proceedings were the product of retaliation by prison 14 staff were cognizable in a habeas proceeding pursuant to ' 2241). 15 Claims concerning various prison conditions that have been 16 brought pursuant to ' 2241 have been dismissed in this district for 17 lack of subject matter jurisdiction with indications that an action 18 pursuant to Bivens is appropriate. See, e.g., Dyson v. Rios, no. 19 1:10–cv–00382–DLB(HC), 2010 WL 3516358, *3 (E.D.Cal. Sept. 2, 2010) 20 (a claim challenging placement in a special management housing unit 21 in connection with a disciplinary violation); Burnette v. Smith, no. 22 CIV S–08–2178 DAD P, 2009 WL 667199 at *1 (E.D.Cal. Mar. 13, 2009) 23 (a petition seeking a transfer and prevention of retaliation by 24 prison staff); Evans v. U.S. Penitentiary, no. 1:07-CV-01611 OWW GSA 25 HC, 2007 WL 4212339 at *1 (E.D.Cal. Nov. 27, 2007) (claims brought 26 pursuant to ' 2241 regarding a transfer and inadequate medical 27 care). 28 Here, to the extent that any claims remain before the Court, 9 1 the claims concern conditions of confinement that do not bear a 2 relationship to, or have any effect on, the legality or duration of 3 Petitioner’s confinement. It has long been established that habeas 4 corpus should be used as a vehicle to determine the lawfulness of 5 custody and not as a writ of error. See Eagles v. U.S. ex rel. 6 Samuels, 329 U.S. 304, 311-12 (1946). Habeas corpus proceedings are 7 not an appropriate forum for claims regarding disciplinary 8 procedures if the effect of the procedures on the length of the 9 inmate’s sentence is only speculative or incidental. 10 Branch, 974 F.2d 116, 117-118 (9th Cir. 1992). Sisk v. The Court concludes 11 that if any claims remain before the Court, the claims are not 12 within the core of habeas corpus jurisdiction pursuant to 28 U.S.C. 13 § 2241. 14 In summary, Petitioner has not asserted any factual or legal 15 basis that would preclude a finding of mootness. The Court thus 16 concludes that the matter is moot because the Court may no longer 17 grant any effective relief. See, Badea v. Cox, 931 F.2d 573, 574 18 (9th Cir. 1991) (holding that a habeas claim was moot where a former 19 inmate sought placement in a community treatment center but was 20 subsequently released on parole and no longer sought such a 21 transfer); Kittel v. Thomas, 620 F.3d 949 (9th Cir. 2010) 22 (dismissing as moot a petition seeking early release where the 23 petitioner was released and where there was no live, justiciable 24 question on which the parties disagreed). 25 Accordingly, it will be recommended that the Court grant the 26 motion to dismiss the petition as moot. 27 III. Recommendations 28 Accordingly, it is RECOMMENDED that: 10 1 1) The petition for writ of habeas corpus be DISMISSED as moot; 2 and 2) The Clerk be DIRECTED to close the action. 3 These findings and recommendations are submitted to the United 4 States District Court Judge assigned to the case, pursuant to the 5 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 6 Rules of Practice for the United States District Court, Eastern 7 District of California. Within thirty (30) days after being served 8 with a copy, any party may file written objections with the Court 9 and serve a copy on all parties. Such a document should be 10 captioned AObjections to Magistrate Judge=s Findings and 11 Recommendations.@ Replies to the objections shall be served and 12 filed within fourteen (14) days (plus three (3) days if served by 13 mail) after service of the objections. The Court will then review 14 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 15 The parties are advised that failure to file objections within the 16 specified time may waive the right to appeal the District Court=s 17 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 21 Dated: /s/ Barbara June 6, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 11
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