Bonneau v. Thomas, No. 3:2011cv01347 - Document 75 (D. Or. 2012)

Court Description: OPINION AND ORDER. The Court DENIES the Amended Petition for Writ of Habeas Corpus 5 and DISMISSES this action. IT IS SO ORDERED. Signed on 4/24/2012 by Judge Anna J. Brown. (gw)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION RYAN BONNEAU, Civil No. 3:11-cv-01347-BR Petitioner, OPINION AND ORDER v. JEFFREY THOMAS, Warden, FCI Sheridan" Respondent. RYAN BONNEAU Fed. Reg. No. 66700-065 FCI Sheridan PO Box 5000 Sheridan, OR 97378 Petitioner Pro Se S. 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 Petitioner is imprisoned at FCI Sheridan pursuant to an aggregate sentence of 46 months imposed by the Honorable Michael W. Mosman for the violation of supervised release in case numbers 02-cr-467-01-MO, (D. Or.) violation of 21 U.S.C. Intent to §§ Distribute and 06-cr-380-01-MO (D. Or.), and for 841(a) (1) and (b) (1) (D), Possession with a Controlled Substance. His proj ected release date, via a Good Conduct Time release, is currently May 9, 2013. 1 On reviewed February 4, the 2011, TRUFONE Senior Officer Specialist Van inmate telephone system Dusen records and discovered that another inmate used Petitioner's Personal Access Code ("PAC") to make telephone calls on Petitioner's account. On February 11, 2011, Officer Van Dusen wrote Incident Report 2123898 which stated: lIn his Reply to Response to Amended Petition for Writ of Habeas Corpus ("Reply"), Petitioner contends his projected release date is now May 9, 2012. A review of the u.S. Bureau of Prisons inmate locator information, however, indicates that as of April 18, 2012, Petitioner's projected release date is May 9, 2013. See http://www.bop.gov/iloc2/InmateFinderServlet?Transaction=IDSearch &needingMoreList=false&IDType=IRN&IDNumber=66700-065&x=90&y=14. 2 - OPINION AND ORDER ­ On 02/04/11 I was reviewing the TRUFONE phone system when I discovered that inmate Bonneau #66700-065 had reportedly made a phone call from unit J K to 503-901­ [XXXX] listed as friend at 2:52 PM on 02/02/11. As well as calls on 1/21/11 and 1/25/11 to the same number, further investigation of the other inmates with this approved number I have determined that inmate Palmer, #67545-065 from J K was the inmate using Bonneau's PAC number to place the calls. Circumventing security procedures including sharing PAC numbers for placing telephone calls threatens the security and orderly running of the institution. Declaration of Daniel Cortez in Support of Respondent's Response to Petition for ["Cortez Declo"], Writ Att. of Habeas 1, Corpus page 5. under 28 U.S.C. § 2241 The Incident Report charged Petitioner with a violation of Code 297, Use of the Telephone for Abuse Other Than Criminal Activity. Also on February 11, 2011, Lieutenant J. Roszel delivered a copy of the Incident Report to Petitioner. page 6. Cortez Decl., Att. 1, Lieutenant Roszel advised Petitioner of his rights, and Petitioner responded that he understood. to Lieutenant Roszel "I don't Id. Petitioner stated know anything about this." Id. Lieutenant Roszel reported that Petitioner "had a good attitude during the investigation," and that Petitioner "did not request any witnesses." Id. On February 16, 2011, the Unit Disciplinary Committee ("UDC") convened to consider the Incident Report. During the UDC meeting, Petitioner stated "I never authorized anyone to use my PAC #, nor did I give it to anyone else. 3 - OPINION AND ORDER ­ Nor did I know about it until I got the shot [the Incident Report]." Cortez Decl., Att. 1, p. 5. The UDC reviewed the Incident Report and Petitioner's statement and referred the charge to the Discipline Hearing Officer ("DHO") for Id. a hearing. Also on February 16, 2011, Petitioner acknowledged receipt of a notice entitled "Inmate Rights at Discipline Hearing" and of a "Notice of Discipline Hearing Before the Att. 1, pp. the 10-11. (DHO)," (DHO) II Cortez Decl., On the "Notice of Discipline Hearing Before Petitioner indicated he wished to have a staff representative at the hearing, but that he did not wish to have witnesses. On Cortez Decl., Att. 1, p. 11. April hearing. 2, 2011, DHO D. Cortez held an administrative In his Discipline Hearing Officer Report ("DHO Report") he recounted Petitioner's statement: I did not allow him to use my PAC number and I didn't call that number and give him the phone either. I received a sheet of paper from Mr. Barnett that had my daily account balance, but it also had my PIN number and my PAC number. Maybe he gold a hold of it when I wasn't in my cell. He has nothing to offer me. He used my PAC number without my permission. Cortez Decl., Att. 1, pp. 1-2. documentation in his defense. Peti tioner did not offer any Petitioner's staff representative, Senior Officer Specialist K. Taylor, offered the following: date on the report of 2-2-11 is wrong. 11. It could also be a 397. 4 - OPINION AND ORDER ­ "The It should have been 2-1­ There is no dispute Palmer is on the phone." Cortez Declo, Att. 1, p. 1. The DHO Report indicates Petitioner did not request witnesses at the hearing. DHO Cortez found Petitioner committed the prohibited act as charged. He explained his decision as follows: The DHO finds inmate Bonneau committed the prohibited act of Use of the Telephone for Abuses Other Than Criminal Acti vi ty. The DHO relied upon the written account of Senior Officer Specialist G. Van Dusen, the report staff member [as set forth above]. The DHO considered the Monitor Recorded Calls form dated February 11, 2011, which indicates the number 503-901­ 1321 was called several times by inmate Palmer as well as on February 1, 2011 and January 21st and 25th, 2011, under the PAC number of inmate Bonneau. The DHO considered the statement inmate Bonneau provided to Lieutenant J. Ros zel, the investigator: "I don't know anything about this." The DHO considered the statement inmate Bonneau provided during the UDC hearing: "I never authorized anyone to use my PAC number. Nor did I give it to anyone else. Nor did I know about it until I got the shot." The DHO considered the statement inmate Bonneau provided during the DHO hearing [set forth above]. While monitoring inmate phone calls Senior Officer Specialist G. Van Dusen became aware inmate Bonneau had allowed the use of his P.A.C. number by another inmate in order for the other inmate to utilize the Inmate Telephone System to place calls to outside contacts. Inmate Bonneau denied the charge, indicating he did not provide his PAC number to the other inmate. Inmates are responsible to ensure their PAC numbers are secured and are not made available or given to other inmates. Based on the evidence presented, the DHO finds inmate Bonneau committed the prohibited act of Use of the Telephone for Abuses Other than Criminal Activity. 5 - OPINION AND ORDER ­ Cortez Decl., Att. 1 pp. 2-3. The DHO imposed sanctions of loss of seven days of Good Conduct Time, loss of telephone privileges for 45 days, and an additional 180 days' loss of privileges suspended pending 180 days clear conduct. telephone Petitioner did not seek administrative review of the DHO's decision. On November 8, 2011, Petitioner filed his Petition for Writ of Habeas Corpus in this Court challenging the legality of the disciplinary proceeding described above. 2 Petitioner alleges his constitutional right to procedural and substantive due process was violated because the DHO refused to allow Petitioner to call two witnesses, Officer Van Dusen and inmate Palmer and because the DHO relied upon insufficient evidence to find Petitioner committed the rules violation. In response, Respondent contends that Petitioner failed to exhaust his available administrative remedies and that, in any event, Petitioner was provided all process due and the finding of guilt was supported by some evidence. 20n December 15, 2011, Petitioner filed an Amended Petition adding one additional claim: Petitioner alleged he received a new, unrelated Incident Report on December 11, 2011, charging Petitioner with Phone Abuse - Circumventing Security Procedures (Attempt) and Being Insolent. As indicated in a December 30, 2011, Status Report (#11) to this Court, the BOP expunged that Incident Report, so Petitioner's claims relating to it are no longer before the Court, and this Opinion and Order addresses solely the claims pertaining to the facts described above. 6 - OPINION AND ORDER ­ DISCUSSION I. Exhaustion of Administrative Remedies general, In federal prisoners must exhaust their administrative remedies prior to filing a habeas corpus petition under 28 U.S.C. § 804 F.2d 570, Martinez v. Roberts, 2241. (9th Cir. 1986) (per curiam). 571 Al though the exhaustion requirement is not jurisdictional, this court may dismiss a habeas petition for failure to exhaust administrative remedies. Id. Exhaustion may be excused if the are inadequate, futile, administrative remedies or where pursuit of the administrative cause irreparable injury. remedies would 370 F.3d 994, See Laing v. Ashcroft, 1000-01 (9th Cir. 2004). Petitioner argues exhaustion of remedies should be excused because he did not receive a copy of the DHO Report until after the time to file an administrative appeal had passed, and because BOP officials allegedly denied administrative remedy forms. that Petitioner did not him access to the While the Court has some concern diligently pursue his administrative remedies, it does appear requiring exhaustion at this would futile be Accordingly, given the requisite length of time that has juncture passed. exhaustion is excused in the circumstances of this case. 7 - OPINION AND ORDER ­ II. Relief on the Merits In order to obtain relief pursuant to 28 U.S.C. § 2241, a petitioner must establish that he is "in custody in violation of the Constitution or laws or treaties of the United States." U.S.C. under 2241(b)(3). § § Habeas corpus jurisdiction is 28 available 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 (1985). However, "[p]rison hearings are not part of a criminal prosecution, disciplinary and the full panoply of rights due a defendant in such proceedings does not apply. " Wolff, 418 U. S. at disciplinary hearings requires: impartial decision-maker; (2) 556. Due process in prison (1) the right to appear before an 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 (5) fact finder of the evidence 8 - OPINION AND ORDER ­ a written statement by the relied on and the reasons for the disciplinary action. 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) The substantive requirements of due process are satisfied where there prison is "some evidence" to support the decision by the 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." Id. at 457. Peti tioner first claims that violated because he was disciplinary hearing. delivered to not As Petitioner due process allowed to noted, by his call witnesses however, Lieutenant rights were the Roszel Incident and at the Report signed by Peti tioner indicates Petitioner did not request any witnesses. Likewise, the DHO Report issued by Cortez stated Petitioner waived his right to call witnesses. 9 - OPINION AND ORDER ­ Peti tioner witnesses argues because he he ini tially intended waived to his rely Representative to decide which witnesses right upon to call. to his He call Staff further states that Staff Representative Officer Taylor agreed to "present any evidence favorable" to Petitioner and to "speak to witnesses who might furnish evidence on behalf of" Petitioner. At the disciplinary hearing, however, Officer Taylor made no indication that witnesses existed who might furnish evidence on Petitioner's behalf and Petitioner himself made no affirmative request to have any such witnesses present. Petitioner appended." also states "[tJhat witness list was later He does not, however, identify to what document it was allegedly appended and provides no evidence of the existence of such a witness list. Accordingly, the Court finds no evidence supporting Petitioner's claim that he was denied the right to call witnesses in violation of his due process rights. Petitioner further argues that the DHO' s supported by "some evidence." decision was not Petitioner first argues the DHO erred in finding Petitioner violated Code 297 because he did not personally "use" the telephone. Here, federal regulations governing inmate telephone access codes provide: An inmate may not possess another inmate's telephone access code number. An inmate may not give his or her telephone access code to another inmate, and is to report a compromised telephone access code immediately to unit staff. 10 - OPINION AND ORDER ­ 28 C.F.R. 540.101(c) § The DHO found Petitioner violated this regulation as BOP Code 297 violation, which is defined as: Use of the telephone for abuses other than criminal activity (e.g., circumventing telephone monitoring procedures, possession and/or use of another inmate's PIN number; third party calling; using credit card numbers to place telephone calls, conference calling, talking in code). 28 C.F.R. 541.13, § Table 3 (2010). Aiding another inmate to violate Code 297 is also a violation of Code 297: to commit any of the prohibited acts committing the act itself". 28 C.F.R. is § "Aiding . treated the 541.3(a) same as (2011) As noted, mere possession of another inmate's PIN/PAC number is one of the enumerated examples of a violation of Code 297. This example, combined with the regulation prohibiting the sharing of telephone access codes and the regulation prohibiting an inmate from aiding reasonable another for the to commit DHO to the conclude prohibited sharing a act, makes it PAC number with another inmate violated Code 297, even though the charged inmate did not personally use the telephone. There is no dispute that another inmate used Petitioner's PAC number to make a telephone call. The Court notes Petitioner claims he did not share his PAC number, and Petitioner asserts it is possible that the other inmate took Petitioner's PAC number without Petitioner's knowledge. An equally possible explanation, however, is that Petitioner allowed the inmate to use the number, 11 - OPINION AND ORDER ­ which is a violation of Code 297. Because the DHO is entitled as hearing officer to determine whether to believe the assertions of any witness and to draw reasonable inferences from the evidence, the Court concludes this record contains "some evidence" from which a reasonable DHO could conclude Petitioner shared his PAC number. In support of his claim that the DHO lacked sufficient evidence to find him in violation of Code 297, Petitioner relies upon Sullivan v. Thomas, 2010 WL 3488998 (D. Or. Aug. 31, 2010). There, the Honorable Malcolm F. Marsh found no evidence to support a DHO's conclusion medication that in violation an of inmate BOP possessed rules. non-prescribed Sullivan, however, is distinguishable. In Sullivan, the inmate was found in violation of prohibited a rule which "possession of any narcotics prescribed for the individual by the medical staff." 2010 WL 3488998 at * 2. not Sulli van, Because the medication in question had in fact been prescribed to the inmate by BOP medical staff, Judge Marsh found the DHO's conclusion that the inmate's attempt to hide his prescription medication did not constitute possession of a non-prescribed medication. Id. at *3. Here, by contrast, the conduct the DHO found Petitioner engaged in fit squarely within the acts prohibited by Code 297. 12 - OPINION AND ORDER ­ Finally, violated Petitioner because previously numerous found DHO Cortez Petitioner occasions. disciplinary argues his was in heard Wolff, 418 u.s. at 570-71. by not process are an rights impartial, violation Inmates charges due of to he had rules prison entitled impartial as were on have hearing their tribunal. A prison official who has participated in the case as an investigating or reviewing officer, or who has personal knowledge of the incident, is not sufficiently impartial to preside over the hearing. Clutchette v. Procunier, 497 F.2d 809, 820 (9th Cir. 1974), modified, 510 F.2d 613, rev'd on other grounds, Baxter v. Palmigiano, 425 u.s. 308, The Court notes investigation or (1976). DHO Cortez did not play any role in the review of this incident, nor is there any evidence he had personal knowledge of the incident prior to the disciplinary hearing. history with DHO To the extent Petitioner argues his prior Cortez established bias on Cortez's part, Petitioner presents no evidence of such personal bias or that it colored Cortez's decision in any way. See Sierra v. Scism, 2010 WL 5553955 *5 (M.D. Pa. Dec. 14, 2010) (courts have generally held that a "generalized critique" of staff impartiality is insufficient demonstrate the degree of bias necessary to prove a due process (affirming violation); denial of see § 13 - OPINION AND ORDER ­ also 2241 Bostic, habeas 884 F.2d petition at 1271 challenging disciplinary proceedings where inmate provided no facts to support allegation that the decisionmaker was not impartial). Reviewing this record as a whole, the Court concludes Petitioner received all of the process due in connection with the disciplinary proceeding challenged in this action. Accordingly, Petitioner is not entitled to habeas corpus relief under 28 U.S.C. § 2241, and his Amended Petition for Writ of Habeas corpus is DENIED. CONCLUSION For these reasons, the Court DENIES the Amended Petition for Writ of Habeas Corpus (#5) and DISMISSES this action. IT IS SO ORDERED. DATED this ~~ /Yv day of April, 2011. A~ United States District Judge 14 - OPINION AND ORDER - F:\S h a re \ Sro wn-LawCl e rk s\ 11-1347bonneau0 41 90pi n. wpd

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.