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Glover v. McClintock

United States District Court, D. Arizona

January 10, 2014

Don Diago Francisco Glover, Petitioner,
v.
Susan G. McClintock, Respondent.

ORDER

CINDY K. JORGENSON, District Judge.

On September 11, 2013, Magistrate Judge Bruce G. McDonald issued a Report and Recommendation, (Doc. 19), in which he recommended denying Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody. Magistrate Judge McDonald further recommended that the district court deny as moot Petitioner's Motion for Judgment on the Pleadings, Summary Judgment, and Judicial Notice, (Doc. 14), and his Motion for Extension of Time to File Reply. (Doc. 17).

Magistrate Judge McDonald advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure. On November 21, 2013, Petitioner filed Objections to the Magistrates Report and Recommendation.[1] (Doc. 22). Respondents filed a Response on December 9, 2013. (Doc. 23).

I. Background

Petitioner is currently serving a 151 month sentence for Conspiracy to Distribute a Controlled Substance in violation of 21 U.S.C. § 846. (Doc. 8-1 at p. 2). Beginning on December 2, 2009 through March 7, 2012, Petitioner was incarcerated at the Federal Medical Center ("FMC Rochester") in Rochester, Minnesota. Id. He was then transferred to Federal Correctional Institution ("FCI Safford") in Safford, Arizona, where he is currently incarcerated. Id.

On December 9, 2011, Senior Officer Heather Ptacek administered three Breathalyzer tests on Petitioner with an Alco-Sensor 3 Breathalyzer. (Doc. 8-1 at p. 21). Petitioner registered a.080 reading on his first test at 9:33 p.m., a.082 reading on a second test at 9:35 p.m., and a.103 reading on his third test at 9:48 p.m. Id.

Officer Ptacek wrote an incident report detailing the results of the Breathalyzer tests and charging Petitioner with a violation of Code 112, Use of any Narcotics, Marijuana, drugs, Alcohol, Intoxicants, or Related Paraphernalia, Not Prescribed for the Individual by the Medical Staff. (Doc. 8-1 at p. 17). On December 10, 2011, Lieutenant R. Stennes delivered a copy of the incident report to Petitioner and advised him of his rights. (Doc. 8-1 at p. 18).

On December 14, 2011, Petitioner signed a form acknowledging that he had been advised of his rights and indicated that he did not wish to have a staff representative or witnesses at his Discipline Hearing Officer ("DHO") proceeding. (Doc. 8-1 at p. 19). On January 10, 2012, at the DHO proceeding, Petitioner reiterated that he did not want a staff representative and did not want to present any witnesses at the hearing. (Doc. 8-1 at p. 20).

During the hearing, Petitioner claimed that the Breathalyzer machine malfunctioned and that procedures were not properly followed with regards to the time intervals between tests. (Doc. 8-1 at p. 12). After examining the evidence, DHO Auterson found Petitioner guilty. Id. Petitioner was sanctioned 41 days of Good Time Credits, 60 days loss of Commissary, Telephone, and Visiting privileges and he received 30 days of Disciplinary Segregation. Id.

On May 16, 2012, DHO Auterson signed the DHO report. Two days later a copy of the report was provided to Petitioner. (Doc. 8-1 at p. 14-16). On June 12, 2012, Petitioner filed his administrative remedy appeal with the Western Regional Office. See (Doc. 13 at p. 12). A response was due to him by July 12, 2012. Id. Having failed to receive a response in the allotted time period, Petitioner proceeded to appeal to the Central Office on July 28, 2012. (Doc. 13 at p. 15). On September 20, 2012, Petitioner filed a Petition for Writ of Habeas Corpus because he had failed to receive a response in the allotted time period. (Doc. 1).

II. Standard of Review

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Pursuant to 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." See also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection"); United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made).

III. Analysis

Magistrate Judge McDonald's Report and Recommendation found that the Court has jurisdiction over this matter and that the Petitioner exhausted his administrative remedies prior to filing his Habeas Petition. The Court agrees. Further, Respondent has not objected to Magistrate Judge McDonald's finding that Petitioner exhausted his administrative remedies prior to filing his Petition. As such, the Court adopts ...


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