(HC) Gonzalez v. Benov, No. 1:2013cv01989 - Document 16 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS to Grant Respondent's 11 Motion to Dismiss the Petition; FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus as Moot and to Direct the Clerk to Close the Action signed by Magistrate Judge Barbara A. McAuliffe on 6/4/2014. Referred to Judge Anthony W. Ishii Objections to F&R due by 7/10/2014. (Sant Agata, S)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 JAIME GONZALEZ, Case No. 1:13-cv-01989-AWI-BAM-HC 12 FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 11) Petitioner, 13 v. 14 15 MICHAEL L. BENOV, Respondent. 16 OBJECTIONS DEADLINE: 30 DAYS 17 18 19 20 21 22 23 24 25 26 27 28 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 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the Respondent’s motion to dismiss the petition as moot, which was filed on March 3, 2014, and supported with documentation submitted on March 26, 2014. Petitioner filed opposition to the motion on March 20, 2014, and supplemental opposition on May 9, 2014. Although the fourteen-day period for filing a reply has passed, no reply has been filed. /// 1 1 I. Background 2 Petitioner, an inmate of the Taft Correctional Institution 3 (TCI), challenges the disallowance of twenty-seven days of good 4 conduct time credit that Petitioner suffered as a result of prison 5 disciplinary findings, initially made at TCI on or about April 23, 6 2013, that he engaged in prohibited conduct by tattooing or self7 mutilation. (Pet., doc. 1 at 1, 9, 11.) Petitioner challenges the 8 loss of credit and seeks invalidation of the sanction. 9 raises the following claims in the petition: Petitioner 1) because the 10 disciplinary hearing officer (DHO) was not an employee of the 11 Federal Bureau of Prisons (BOP) and thus lacked the authority to 12 conduct the disciplinary hearing and make findings resulting in 13 punishment, including disallowance of good time credit, Petitioner 14 suffered a violation of his right to due process of law; and 2) 15 because the DHO was not an employee of the BOP but rather was an 16 employee of a private entity with a financial interest in the 17 disallowance of good time credits, Petitioner’s due process right to 18 an independent and impartial decision maker at the disciplinary 19 hearing was violated. 20 (Id. at 1-9.) Respondent moves for dismissal of the petition as moot because 21 the disciplinary charges were reheard via teleconference on February 22 27, 2014, by a certified disciplinary hearing officer of the BOP. 23 At the rehearing, Petitioner admitted the violation. The BOP DHO 24 found that Petitioner had committed the prohibited misconduct, and 25 she assessed the same disallowance of good conduct time credit 26 (twenty-seven days), but she reduced the duration of loss of 27 commissary privileges. (Decl., doc. 14, 2-4; doc. 14 at 15-16, 19- 28 21.) 2 1 II. Mootness 2 Federal courts lack jurisdiction to decide cases that are moot 3 because the courts= constitutional authority extends to only actual 4 cases or controversies. 5 U.S. 67, 70-71 (1983). Iron Arrow Honor Society v. Heckler, 464 Article III requires a case or controversy 6 in which a litigant has a personal stake in the outcome of the suit 7 throughout all stages of federal judicial proceedings and has 8 suffered some actual injury that can be redressed by a favorable 9 judicial decision. Id. A petition for writ of habeas corpus 10 becomes moot when it no longer presents a case or controversy under 11 Article III, ' 2 of the Constitution. 12 477, 479 (9th Cir. 2003). Wilson v. Terhune, 319 F.3d A petition for writ of habeas corpus is 13 moot where a petitioner=s claim for relief cannot be redressed by a 14 favorable decision of the court issuing a writ of habeas corpus. 15 Burnett v. Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005) (quoting 16 Spencer v. Kemna, 523 U.S. 1, 7 (1998)). 17 jurisdictional. Mootness is See, Cole v. Oroville Union High School District, 18 228 F.3d 1092, 1098-99 (9th Cir. 2000). Thus, a moot petition must 19 be dismissed because nothing remains before the Court to be 20 remedied. 21 Spencer v. Kemna, 523 U.S. 1, 18. Here, documentation submitted by Respondent in support of the 22 motion to dismiss demonstrates that the claims initially alleged by 23 Petitioner are no longer in controversy. The charges were reheard 24 by an officer who had the precise qualifications that Petitioner had 25 alleged were required by principles of due process of law and the 26 pertinent regulations. It is undisputed that the findings and 27 sanctions that constituted the object of Petitioner’s challenges in 28 3 1 the petition have now been superseded by the findings and sanctions 2 of the certified BOP DHO. 3 When, because of intervening events, a court cannot give any 4 effectual relief in favor of the petitioner, the proceeding should 5 be dismissed as moot. Calderon v. Moore, 518 U.S. 149, 150 (1996). 6 In the present case, it appears that the only relief that Petitioner 7 sought was invalidation of the findings and associated sanctions. 8 It has been demonstrated that the rehearing of the incident report 9 by an indisputably qualified DHO has effectuated the relief sought 10 by Petitioner. Thus, it is no longer possible for this Court to 11 issue a decision redressing the injury. 12 Petitioner argues that the controversy is not moot because the 13 rehearing was part of disciplinary proceedings that were wholly 14 invalid or unconstitutional. The asserted invalidity is based on 15 the fact that in the earlier stages of the disciplinary process, 16 employees of the private prison management company, who did not 17 constitute BOP staff, participated in violation of various 18 regulations, including 28 C.F.R. § 541.5, which requires “staff” to 19 witness or suspect a violation and issue an incident report, 28 20 C.F.R. § 541.5(a); requires a “Bureau staff member” to investigate 21 the incident report, 28 C.F.R. § 541.5(b); and directs that it is 22 “staff” who ordinarily serve on a unit disciplinary committee, a 23 body which considers disciplinary charges before the charges are 24 heard by a DHO, § 541.7(b). Petitioner argues that the hearing and 25 rehearing process evinced deliberate indifference to his liberties 26 and violated his Fifth Amendment right to equal protection of the 27 laws and his Eighth Amendment right to be free from cruel and 28 unusual punishment. 4 1 However, the documentation attached to the petition shows that 2 the BOP DHO considered not only the incident report and 3 investigation, but also photographic evidence and Petitioner’s 4 repeated admissions of the truth of the incident report made during 5 the investigation, at a unit disciplinary hearing, and at the 6 rehearing before the BOP DHO. (Doc. 14, 14-15, 19-21.) Despite 7 Petitioner’s post-decision recantation of his previous admissions, 8 the photographs and Petitioner’s repeated admissions, including 9 before the BOP DHO, provide strong and independent support for the 10 finding of misconduct and also undercut Petitioner’s general 11 allegation that he suffered a taint from the participation of non12 BOP staff in the earlier stages 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 14, 19-20.) (Doc. In light of these circumstances, the Court concludes 11 that Petitioner has not suffered any prejudice from either 12 participation of non-BOP staffers in the earlier stages of the 13 disciplinary process or any delay experienced in the course of the 14 rehearing process. 15 It is recognized that generally a failure to meet a prison 16 guideline regarding a disciplinary hearing would not alone 17 constitute a denial of due process. 18 1267, 1270 (9th Cir. 1989). See Bostic v. Carlson, 884 F.2d In the absence of controlling 19 authority, the Court notes that several courts have concluded that 20 to establish a denial of due process of law, prejudice is generally 21 required. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) 22 (proceeding pursuant to 28 U.S.C. § 2254); see also Tien v. Sisto, 23 Civ. No. 2:07 cv-02436-VAP (HC), 2010 WL 1236308, at *4 (E.D.Cal. 24 Mar. 26, 2010) (recognizing that while neither the United States 25 Supreme Court nor the Ninth Circuit Court of Appeals has spoken on 26 the issue, numerous federal Courts of Appeals, as well as courts in 27 this district, have held that a prisoner must show prejudice to 28 state a habeas claim based on an alleged due process violation in a 6 1 disciplinary proceeding, and citing Pilgrim v. Luther, 571 F.3d 201, 2 206 (2d Cir. 2009); Howard v. United States Bureau of Prisons, 487 3 F.3d 808, 813 (10th Cir. 2007); Piggie v. Cotton, 342 F.3d 660, 666 4 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992); 5 Poon v. Carey, no. Civ. S 05 0801 JAM EFB P, 2008 WL 5381964, *5 6 (E.D.Cal. Dec. 22, 2008); and Gonzalez v. Clark, no. 1:07 CV 0220 7 AWI JMD HC, 2008 WL 4601495, at *4 (E.D.Cal. Oct. 15, 2008)); see 8 also Smith v. United States Parole Commission, 875 F.2d 1361, 13689 69 (9th Cir. 1989) (holding in a § 2241 proceeding that a prisoner, 10 who challenged the government’s delayed compliance with a procedural 11 regulation that required counsel to be appointed before a record 12 review in parole revocation proceedings, was required to demonstrate 13 prejudice to be entitled to habeas relief); Standlee v. Rhay, 557 14 F.2d 1303, 1307-08 (9th Cir. 1977) (stating that burden is on a 15 parolee to demonstrate that failure to permit a witness’s live 16 testimony at a revocation hearing was so prejudicial as to violate 17 due process). 18 In summary, the claims in the petition before the Court are no 19 longer subject to redress by the Court. Further, the factual 20 accuracy of the findings on rehearing are undisputed, the record 21 establishes that Petitioner received procedural due process of law, 22 and there is no indication that Petitioner suffered any legally 23 cognizable prejudice. 24 Although Petitioner now alleges that other details of the early 25 stages of the prison’s disciplinary program are contrary to 26 regulation, the Court concludes that in light of the foregoing 27 analysis, it does not appear that these aspects of Petitioner’s 28 confinement bear any relationship to the legality or duration of 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 18 19 20 lack of subject matter jurisdiction with indications that an action pursuant to Bivens is appropriate. See, e.g., Dyson v. Rios, no. 1:10–cv–00382–DLB(HC), 2010 WL 3516358, *3 (E.D.Cal. Sept. 2, 2010) 21 (a claim challenging placement in a special management housing unit 22 in connection with a disciplinary violation); Burnette v. Smith, no. 23 CIV S–08–2178 DAD P, 2009 WL 667199 at *1 (E.D.Cal. Mar. 13, 2009) 24 25 (a petition seeking a transfer and prevention of retaliation by prison staff); Evans v. U.S. Penitentiary, no. 1:07-CV-01611 OWW GSA 26 27 HC, 2007 WL 4212339 at *1 (E.D.Cal. Nov. 27, 2007) (claims brought 28 9 1 pursuant to ' 2241 regarding a transfer and inadequate medical 2 care). 3 Here, to the extent that any claims remain before the Court, 4 the claims concern conditions of confinement that do not bear a 5 relationship to, or have any effect on, the legality or duration of 6 Petitioner’s confinement. It has long been established that habeas 7 corpus should be used as a vehicle to determine the lawfulness of 8 custody and not as a writ of error. See Eagles v. U.S. ex rel. 9 Samuels, 329 U.S. 304, 311-12 (1946). Habeas corpus proceedings are 10 not an appropriate forum for claims regarding disciplinary 11 procedures if the effect of the procedures on the length of the 12 inmate’s sentence is only speculative or incidental. Sisk v. 13 Branch, 974 F.2d 116, 117-118 (9th Cir. 1992). The Court concludes 14 that if any claims remain before the Court, the claims are not 15 within the core of habeas corpus jurisdiction pursuant to 28 U.S.C. 16 § 2241. 17 In summary, Petitioner has not asserted any factual or legal 18 basis that would preclude a finding of mootness. The Court thus 19 concludes that the matter is moot because the Court may no longer 20 grant any effective relief. See, Badea v. Cox, 931 F.2d 573, 574 21 (9th Cir. 1991) (holding that a habeas claim was moot where a former 22 inmate sought placement in a community treatment center but was 23 subsequently released on parole and no longer sought such a 24 transfer); Kittel v. Thomas, 620 F.3d 949 (9th Cir. 2010) 25 (dismissing as moot a petition seeking early release where the 26 petitioner was released and where there was no live, justiciable 27 question on which the parties disagreed). 28 10 Accordingly, it will be recommended that the Court grant the 1 2 motion to dismiss the petition as moot. 3 III. Recommendations 4 Accordingly, it is RECOMMENDED that: 5 1) The petition for writ of habeas corpus be DISMISSED as moot; 6 and 2) The Clerk be DIRECTED to close the action. 7 These findings and recommendations are submitted to the United 8 States District Court Judge assigned to the case, pursuant to the 9 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 10 Rules of Practice for the United States District Court, Eastern 11 District of California. Within thirty (30) days after being served 12 with a copy, any party may file written objections with the Court 13 and serve a copy on all parties. Such a document should be 14 captioned AObjections to Magistrate Judge=s Findings and 15 Recommendations.@ Replies to the objections shall be served and 16 filed within fourteen (14) days (plus three (3) days if served by 17 mail) after service of the objections. The Court will then review 18 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 19 The parties are advised that failure to file objections within the 20 specified time may waive the right to appeal the District Court=s 21 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 IT IS SO ORDERED. 23 24 Dated: /s/ Barbara June 4, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 11
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