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MacKey v. Graber

United States District Court, D. Arizona

April 7, 2014

Bakari Darnell Mackey, Petitioner,
Conrad M Graber, et al., Respondents.


CINDY K. JORGENSON, District Judge.

On December 13, 2013, Magistrate Judge Jacqueline Rateau issued a Report and Recommendation, (Doc. 27), in which she 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 Rateau 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 December 26, 2013, Petitioner filed Objections to the Magistrate Judge's Report and Recommendation. (Doc. 28). Respondents have not filed a response.

I. Background

Petitioner was incarcerated at the Federal Correctional Center ("FCC") in Yazoo City, Mississippi in April 2011. On April 19, 2011, Engret Jenkins, a teacher at FCC Yazoo wrote a memorandum to Special Investigative Agent ("SIA") Henderson. (Doc. 12-2 at p. 7). The memorandum provided:

On Monday, April 18, 2011, Inmate Bakari Mackey, XXXXX-XXX, entered my office to inform me that an inmate that he had been in conversation with advised him to ask me for my address so that he could send $3, 000.00 to me in an attempt to eventually ask me to bring in cigarettes. Inmate Baracki told me that the inmate who continues to contact him is Inmate Jerome Harris, XXXXX-XXX, who works in the Barber Shop at the Low. (Doc. 12-2 at p. 7).

After conducting an investigation into Ms. Jenkins' memorandum, on July 7, 2011, Acting SIA Debra Dawson prepared an Incident Report charging Petitioner with offering a staff member a bribe in violation of Prohibited Act Code 216A. (Doc. 12-1 at p. 14). Lieutenant McCraney delivered the incident report to Petitioner that same day. (Doc. 12-1 at p. 11). On July 8, 2011, Petitioner was advised of his rights before the Disciplinary Hearing Officer ("DHO"). (Doc. 12-1 at pp. 11, 17). Petitioner was advised that he had the right to a full time staff member to represent him at the hearing and the right to call witnesses and present documentary evidence on his behalf. (Doc. 12-1 at pp. 17, 18). Petitioner chose Dr. Cheek, a psychologist to represent him at the hearing and expressed his desire to call Ms. Jenkins as a witness. Id. Petitioner also submitted a seven page hand written affidavit explaining Petitioner's version of the events. (Doc. 12-1 at pp. 20-26).

On July 21, 2011, Acting DHO Truex held a hearing on the charges. (Doc. 12-1 at pp. 11-13). At the hearing, Petitioner denied offering a staff member a bribe and denied making the statements reported and suggested that any action he took was at the direction of staff. (Doc. 12-1 at p. 12). DHO Truex considered Petitioner's statement, Petitioner's affidavit, the Incident Report and Investigation, and Ms. Jenkins two written statements.[1] (Doc. 12-1 at pp. 12, 27). However, Ms. Jenkins was not called as a witness but her written statements were received and read at the hearing. (Doc. 12-1 at p. 11).

On July 29, 2011, Acting DHO Truex issued his decision finding that Petitioner had committed the charged offense. (Doc. 12-1 at p. 12). Petitioner's sanctions included 27 days of disallowed good conduct time, 30 days of disciplinary segregation, 180 days of commissary restriction, 180 days of telephone restriction, and a recommendation that Petitioner be transferred. (Doc. 12-1 at p. 12).

On August 14, 2011, Petitioner filed a Regional Remedy Appeal with the Southeast Regional Office. (Doc. 12-1 at p. 2). On September 22, 2011, Petitioner's appeal was denied. Id. On October 12, 2011, Petitioner filed an administrative remedy with the Central Office, which was denied on March 19, 2012. Id. On March 5, 2012, Petitioner filed a Petition for Writ of Habeas Corpus. (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-Objections to Report and Recommendation

Magistrate Judge Rateau'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 Magistrate Judge Rateau's findings regarding jurisdiction and Petitioner's exhaustion of administrative remedies.

Petitioner objects to Magistrate Judge Rateau's Report and Recommendation. He asserts that his due process rights were violated when he was denied the right to call Ms. Jenkins at the DHO proceeding. According to Petitioner, he initially spoke with Ms. Jenkins on April 4, 2011. During this conversation, Plaintiff alleges that he told Ms. Jenkins that another inmate claimed that Ms. Jenkins had brought cigarettes into the prison and he wanted to see if that was true. Petitioner further alleges Ms. Jenkins admitted to speaking with another inmate about the same issue. Petitioner argues that Ms. Jenkins' statement did not deny that the April 4, 2011 conversation took place or that she ...

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