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Gonzalez-Lozano v. Graber

United States District Court, D. Arizona

October 8, 2014

Alberto Angel Gonzalez-Lozano, Petitioner,
v.
Conrad Graber, Respondent.

ORDER

ROSLYN O. SILVER, Senior District Judge.

Petitioner Alberto Angel Gonzalez-Lozano had two incidents where he was caught without his pants on. Based on the second incident, he was found guilty of "stalking" and punished with, among other things, the loss of good time credit. Magistrate Judge Michelle H. Burns recommends denial of Petitioner's challenge to the violation and sanction. Petitioner filed objections but, for the following reasons, the Magistrate Judge's recommendation will be adopted in full.

I. Standard of Review for Report and Recommendation

A district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. ยง 636(b). The district court must review de novo the portions to which an objection is made. Id. The district court need not, however, review the portions to which no objection is made. See Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) ("[ D ] e novo review of factual and legal issues is required if objections are made, but not otherwise.") (quotation marks and citation omitted).

II. Factual Background

Petitioner did not object to most of the factual background recited by the Magistrate Judge. Therefore, the Court accepts the Magistrate Judge's recounting of the facts. The relevant facts, in brief, are as follows.

Petitioner is currently an inmate at the Federal Correctional Institution ("FCI") Phoenix. On the morning of August 27, 2012, FCI-Staff psychologist, Dr. Marilyn Park, saw Petitioner "putting his khaki pants [on]" in front of the outdoor recreation area. (Doc. 12-2 at 8). Dr. Park told Petitioner "he needed to dress himself in his housing unit." Four days later, another staff member saw Petitioner in a "hallway wearing only his underwear and a shirt." When asked why he was not wearing pants, Petitioner said he was "waiting to use the restroom but someone is in there." (Doc. 12-2 at 6). The staff member told him "to put his pants back on." That same staff member noted the hallway where he observed Petitioner "is the hallway that leads up to Dr. Park's office." (Doc. 12-2 at 6). That hallway "is in an area that Dr. Park must walk through to get to and from her office" and Petitioner was found "no more than 25 yards from Dr. Park's office." (Doc. 12-2 at 9). The staff member composed an incident report charging Petitioner with "stalking" and "indecent exposure." (Doc. 12-2 at 6).

Petitioner was given a copy of the incident report later that same day. When first given the report, Petitioner stated "I admit I took off my shorts and then put my pants on, not thinking anyone would see me do this." (Doc. 12-2 at 7). But Petitioner disputed he was "stalking anyone." (Doc. 12-2 at 7). An investigation was conducted and a hearing before the Unit Discipline Committee ("UDC") took place a short time later. (Doc. 12-2 at 3). The UDC referred the matter to a Discipline Hearing Officer for a further hearing. (Doc. 12-2 at 3).

At the hearing before the Discipline Hearing Officer, a memo written by Dr. Park allegedly was read to Petitioner. Petitioner was then allowed to make a statement regarding Dr. Park's memo. Petitioner admitted Dr. Park had confronted him and told him his "undressed state... made her feel uncomfortable.'" (Doc. 12-2 at 10). The hearing officer held Petitioner had "committed the prohibited act of Stalking" and sanctioned Petitioner with, among other things, the loss of "27 days Good Conduct Time." (Doc. 12-2 at 10, 12). Petitioner appealed.

On appeal, Petitioner cited the definition of "stalking" that requires "repeated behavior which harasses" and argued there was "no documented pattern of repeated behavior." (Doc. 12-1 at 16). The Regional Director issued a written opinion affirming the violation and sanctions. The Regional Director reasoned Petitioner "had previously been warned about [his] conduct" and there was an adequate "basis for the finding that [he] committed the prohibited act." On Petitioner's argument regarding the lack of "repeated behavior, " the Regional Director stated "the [hearing officer] drew a reasonable conclusion that you stalked the Staff Psychologist after she previously warned you about your behavior." (Doc. 12-1 at 17). Petitioner then appealed again, but the violation and sanctions were again affirmed. (Doc. 12-1 at 4).

Petitioner filed this habeas petition asserting two challenges to the violation and sanctions. First, Petitioner claims there was insufficient evidence supporting the "stalking" charge. And second, Petitioner believes his due process rights were violated during the disciplinary process because he was not permitted to "examine or challenge" Dr. Park's memo. (Doc. 1 at 5).

III. Standard for Prison Discipline

The Magistrate Judge correctly identified the very lenient standard the Court must apply when assessing Petitioner's claims. A prison inmate is entitled to limited procedural protections before he "can be deprived of a protected liberty interest in good time credits." Superintendent v. Hill, 472 U.S. 445, 453 (1985) (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). Those protections require an inmate receive:

(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of ...

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