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Kincer v. Winn

United States District Court, D. Arizona

August 27, 2014

Kelly Lynn Kincer, Petitioner,
v.
Louis Winn, Respondent.

ORDER

LESLIE A. BOWMAN, Magistrate Judge.

On June 19, 2013, Kelly Lynn Kincer, an inmate confined (at that time) in the United States Penitentiary in Tucson, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2241. (Doc. 1) Kincer claims the Bureau of Prisons (BOP) wrongfully deprived him of 27 days of Good Conduct Time resulting from his misuse of the TRULINCS email system.

Magistrate Judge Bowman presides over this action pursuant to 28 U.S.C. § 636(c). (Doc. 12) The petition will be denied on the merits.

Summary of the Case

Kincer is currently serving a 115-month term of imprisonment for receipt of child pornography. (Doc. 13-1, p. 3) At the time the petition was filed, Kincer was incarcerated in the United States Penitentiary in Tucson, Arizona. Id. Previously, he was confined at the Federal Correctional Institution in Petersburg, Virginia. (Doc. 13-1, pp. 3-5)

At 8:30 A.M. on November 15, 2010, staff at the Federal Correctional Institution in Petersburg, Virginia discovered that Kincer had used another inmate's TRULINCS account to send an email to a third person. (Doc. 13-4, p. 2) Furthermore, Kincer had called the third person to inform her that the email was actually from him. Id. At 7:25 P.M. the next day, roughly 35 hours after discovering the incident, staff delivered the incident report to Kincer. Id. The original incident report charged Kincer of a code 297 violation: use of a telephone to circumvent staff's ability to monitor telephone use. Id.; 28 C.F.R. 541.3. The incident report, however, described the charge as "[u]sing TRULINCS in violation of the policy on TRULINCS regulations and which circumvents TRULINCS monitoring procedures." (Doc. 14-3, p. 2)

On December 28, 2010, a Disciplinary Hearing Officer (DHO) conducted a hearing and sanctioned Kincer with the loss of 27 days of Good Conduct Time, 15 days of disciplinary segregation, and the loss of telephone privileges for a year. (Doc. 13, p. 5) In February, Kincer appealed to the Mid-Atlantic Regional Office. Id. The Regional Director remanded the case, ordering the incident report to be rewritten in a way that more adequately provided notice to Kincer. Id. Following that order, prison staff rewrote the incident report to charge him with a Code 299 violation for conduct "most like another High severity prohibited act, " namely, Code 297 - phone abuse. Id.; 28 C.F.R. 541.3.

On June 3, 2011, the DHO reheard the matter and again issued sanctions including the loss of 27 days of Good Conduct Time, 15 days of disciplinary segregation, and the loss of telephone privileges for six months. (Doc. 13, p. 5-6) Kincer again appealed to a Regional Office, which upheld the substantive findings of the DHO. (Doc. 13, p. 6) Kincer's two subsequent appeals to the General Counsel were rejected as improperly submitted. Id.

Kincer now appeals to this court. He makes four claims: (1) that the proceedings were untimely, (2) that the BOP should not have been permitted to rewrite its report, (3) that he was improperly charged with a "High" severity act rather than a "Moderate" severity act, and (4) that his sanction was disproportionate to the sanction his co-conspirator received. (Doc. 1, pp. 4-7)

Respondent argues that Kincer failed to exhaust his administrative appeals, and that this petition must be dismissed as a result. Assuming Kincer adequately exhausted his remedies, this court finds his petition should be denied on the merits.

Discussion

Federal prisoners have a statutory right to good time credits. See 18 U.S.C. § 3624. Accordingly, they have a due process interest in the disciplinary proceedings that may take away those credits. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). "Due process in a prison disciplinary hearing is satisfied if the inmate receives written notice of the charges, and a statement of the evidence relied on by the prison officials and the reasons for disciplinary action." Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987), cert. denied, 487 U.S. 1207 (1988). "The inmate has a limited right to call witnesses and to present documentary evidence when permitting him to do so would not unduly threaten institutional safety and goals." Id.

The final decision to revoke good time credits must be based on "some evidence." Superintendent v. Hill, 472 U.S. 445, 455 (1985). "The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56. If so, then due process is satisfied. Id. The court need not examine the entire record, independently assess the credibility of the witnesses, or weigh the evidence. Id. at 455.

Here, Kincer used the prison's phone and TRULINCS email system to send a message to a third party in a way that avoided the prison monitoring system. He challenges the sanctions ...


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