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Herron v. Wartle

United States District Court, D. Arizona

September 1, 2015

Brian Keith Herron, Petitioner,
v.
J.T. Wartle, Warden, Respondent.

REPORT AND RECOMMENDATION

ERIC J. MARKOVICH, Magistrate Judge.

Pending before the Court is Petitioner Brian Keith Herron's pro se First Amended Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus. (Doc. 6). Petitioner challenges the disciplinary hearing officer's imposition of sanctions for infractions Petitioner committed while incarcerated, including loss of good conduct time and monetary restitution. Id. Respondent filed a Return and Answer (Doc. 13), and Petitioner filed a Reply (Doc. 19). Also pending before the Court are Petitioner's Motion for Temporary Injunction (Doc. 31) and Motion for Request of Time Frame (Doc. 32). Petitioner's Motion for Temporary Injunction requests the Court to order Respondent to stop withdrawing funds from Petitioner's account to be credited toward the restitution. (Doc. 31). Respondent filed a Notice of Non-Response to Petitioner's Motion for Temporary Injunction and Motion for Request of Time Frame. (Doc. 33).

As an initial matter, the Court notes that the proper respondent in an action for habeas corpus is the Petitioner's custodian, who at the time this action was filed was Louis W. Winn, Jr. See 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 426, 435-36 (2004). The Court takes judicial notice that Louis W. Winn, Jr. is no longer warden of United States Penitentiary-Tucson ("USP-Tucson"). The Court will substitute the new Warden of USP-Tucson, J. T. Shartle, as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus (Doc. 6), and deny Petitioner's Motion for Temporary Injunction (Doc. 31) and Motion for Request of Time Frame (Doc. 32) as moot.

I. PROCEDURAL BACKGROUND

Petitioner is currently incarcerated at U.S. Penitentiary McCreary in Pine Knot, Kentucky. In light of Petitioner's incarceration at USP-Tucson in Tucson, Arizona at the time of the Petition's filing, this Court retains jurisdiction to consider the Petition. See Francis v. Rison, 894 F.2d 353 (9th Cir. 1990) ("jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.").

Petitioner is currently serving a 420 month sentence for attempted bank robbery, armed bank robbery, escape, assault on a United States officer, and assault on a person assisting a United States officer. (Doc. 13 Ex. A Attach. 2). Petitioner's projected release date is December 5, 2033. Id.

Petitioner filed his pro se First Amended Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus on August 13, 2013. (Doc. 6). Petitioner challenges a disciplinary conviction that resulted in a loss of good conduct time ("GCT") credits and monetary restitution. Petitioner alleges three grounds by which his due process rights were violated:[1] (1) "sanctions of loss of good time credits for reasons not directly related to the infraction was/is in bad faith and retaliation and does in fact impose an atypical and significant hardship upon [Petitioner]"; (2) the monetary restitution assessed is not directly related to the infraction and is arbitrary because monetary fines were not approved or codified under the Code of Federal Regulations or implemented into the Bureau of Prisons ("BOP") program to be imposed by the Disciplinary Hearing Officer ("DHO") at the time of Petitioner's disciplinary hearing; and (3) the monetary restitution was arbitrarily calculated without proper receipts and documentation. (Doc. 6 at 4-5). Petitioner requests that the Court issue an order expunging the BOP disciplinary hearing sanction of monetary restitution in the amount of $2138.20 and restore his loss of 94 days GCT. Id. at 10.

II. FACTUAL BACKGROUND

On May 6, 2009, Petitioner was being transported to his cell by Officers Brown and Reynolds. (Doc. 13 Ex. B Attach. 2 at 6 [Incident Report]). After his handcuffs were removed and the cell door was shut, Petitioner became disruptive and destructive. Id. He broke off pieces of his walker and threatened to attack Officer Brown, and then used the piece of his walker to break apart his bed. Id. Petitioner "then used a long piece of metal from his bed as a hammer type of tool, breaking light fixtures, windows in his room, the shower light, and part of his call system that is tied to the nurse's station." Id. While destroying the items in his room, Petitioner stated: "you got me, and now I'm gonna get you, " "come on in here, and I'll get you, motherfucker, " and that he "was from the pen" and "a gangster." Id. Petitioner was charged with BOP Code No. 104, possession, manufacture, or introduction of a weapon; Code No. 203, threatening another with bodily harm; and Code No. 218, destroying, altering, or damaging property valued in excess of $100. Id.

Officer Brown completed an Incident Report (No. 1865559) on May 6, 2009 at 1:36 p.m. Id. A copy of the incident report was delivered to Petitioner that same day. Id. Lieutenant Testerman investigated and advised Petitioner of his rights. (Doc. 13 Ex. B Attach. 2 at 8). Petitioner chose to make the following statement during the investigation: "I destroyed the room, I was mad but I didn't say anything." Id. [2] Petitioner did not request any witnesses. Id.

The Unit Disciplinary Committee ("UDC") referred the incident to the DHO for further hearing based on the eyewitness accounts of staff and the evidence presented, and because Petitioner allegedly stated that he destroyed the room because he was mad. (Doc. 13 Ex. B Attach. 2 at 7). The UDH recommended that the DHO impose suspended sanctions from two prior incident reports, and additionally disallow the maximum amount of GCT, impose 30 days of disciplinary segregation, restrict commissary and phone privileges for 60 days, and order restitution for the damage caused. Id.

On June 2, 2009, Petitioner had a DHO hearing before DHO Kevin Nikes. (Doc. 13 Ex. B Attach. 2 at 2-5 [Discipline Hearing Officer Report]). DHO Nikes advised Petitioner of his rights before the DHO hearing, and he indicated that he understood them. Id. at 3. Petitioner requested a staff representative, Dr. Weiner, who stated that she spoke with Petitioner prior to the DHO hearing. Id. at 2. Petitioner denied the charges against him and made the following statement:

I came back from 10 building and I went back to my floor. 3/2 I asked for lunch and they said we need to check your cell first. And then the officer said "no you can wait to eat, your [sic] not special." I took that as a sign of him being disrespectful and talking to me like a child. I attempted breaking the light. I disassembled the trapeze bed parts by taking the screws out. I didn't manufacture a weapon, I didn't take apart anything to make a weapon. The officer wasn't even there, I didn't threaten anyone.

Id. at 2. Petitioner also had two witnesses testify on his behalf.[3] The first witness was Nurse Hedges, who stated "I saw inmate Herron with a metal object in hand, knocking out the glass windows in a cell." Id. The second witness was inmate Chad Sigman, who stated "I only observed the damage after inmate Herron had destroyed the room." Id.

In addition to the testimony of Petitioner and the two witnesses, DHO Nikes also considered documentary evidence, including photographs of the damage, Officer Reynold's memorandum, and staff emails. Id. at 2-3. DHO Nikes found Petitioner guilty of the prohibited acts of possession, manufacture, or introduction of a weapon (Code No. 104), threatening another with bodily harm (Code No. 203), and destroying, altering, or damaging property valued in excess of $100 (Code No. 218). Id. at 2, 4. DHO Nikes imposed sanctions for each offense as follows: Code No. 104: loss of 40 days GCT, 60 days disciplinary segregation, and loss of commissary, phone, and visiting privileges for 90 days; Code No. 203: loss of 27 days GCT, 30 days disciplinary segregation, and loss of commissary and phone privileges for 60 days; Code No. 218: loss of 27 days GCT, 30 days disciplinary segregation, loss of commissary and phone privileges for 60 days, and $2138.20 monetary restitution. Id. at 4. On July 22, 2009, DHO Nikes signed the DHO report and it was delivered to Petitioner on August 7, 2009. Id. at 5.

Petitioner states that he filed an Administrative Remedy Appeal (552794-R1)[4] and a Regional Administrative Remedy Appeal (552794-R2) (BP-10), [5] and was denied at both levels.[6] (Doc. 19 at 5). Petitioner alleges he gave his Central Office Administrative Remedy Appeal (552794-A1) (BP-11) to the mail room officer at USP-Tucson on November 5, 2009 (Doc. 19 at 17 ¶ 6), but that he did not received a response from the Central Office regarding this appeal (Doc. 19 at 5); ( see Doc. 19 at 22 [copy of Central Office Administrative Remedy Appeal dated November 5, 2009]). The BP-11 is not stamped with a date reflecting its receipt, and Respondent contends Petitioner never filed it. (Doc. 13 at 12).

According to Respondent, "[i]n March and April 2011, Petitioner filed 632303-F1 [Administrative Remedy Appeal] and 632303-R1 [Regional Administrative Remedy Appeal]... Both were rejected, and Petitioner did not pursue them as required [by filing a Central Office Administrative Remedy Appeal." (Doc. 13 at 12) (citing Ex. A. Attach. 5 at 13).

On October 7, 2011, Petitioner filed another Administrative Remedy Appeal, contending the BOP was wrongfully withholding funds from his inmate trust account and demanding a full refund of the monies withheld (660692-F1) (BP-9).[7] (Doc. 6 at 20 [Request for Administrative Remedy]; Doc. 19 at 5). On November 2, 2011, the Complex Warden denied the Appeal, noting "[t]he time frame to appeal the severity of the sanctions imposed by the DHO has long passed." (Doc. 6 at 21). On November 14, 2011, Petitioner filed a Regional Administrative Remedy Appeal (660692-R1) (BP-10), which was denied on December 8, 2011.[8] (Doc. 6 at 22 [Regional Administrative Remedy Appeal]; Doc. 19 at 5). On February 27, 2012, Petitioner filed a Central Office Administrative Remedy Appeal (660692-A2) (BP-11), which was denied on March 1, 2013.[9] (Doc. 6 at 24 [Central Office Administrative Remedy Appeal]; Doc. 19 at 5).

Petitioner filed several Freedom of Information Act requests requesting copies of purchase orders and receipts for the replacement of the damaged items that he was ordered to pay restitution for, and copies of the records relied on by DHO Nikes in determining the amount of restitution. (Doc. 6 at 5 ¶ 5).[10] In a letter to Petitioner dated August 25, 2011, Richard W. Schott, Regional Counsel for the Federal Bureau of Prisons, stated that "staff have made a thorough search for the records you requested [for the purchase orders and receipts], and no documents could be located." (Doc. 6 at 15). In a second letter to Petitioner dated December 15, 2011, Mr. Schott noted that records relied upon by the DHO in determining monetary restitution were located and could be released to Petitioner. Id. at 16-17.

Petitioner instituted the current proceeding on May 17, 2013. (Doc. 1).

III. ANALYSIS

A. Jurisdiction

"Federal courts are always under an independent obligation to examine their own jurisdiction, '... and a federal court may not entertain an action over which it has no jurisdiction." Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) ( quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990), overruled in part on other grounds by City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004)). "Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court." Id. at 864. Therefore, a proper characterization of the petition is necessary to determinate jurisdiction. Id.

Additionally, the judicial power of this and all federal courts is limited to actual cases or controversies. U.S. Const. art. III; see also Flast v. Cohen, 392 U.S. 83, 94-95 (1968); Munoz v. Rowland, 104 F.3d 1096, 1097 (9th Cir. 1997). "A petition for writ of habeas corpus is moot where a petitioner's claim for relief cannot be redressed by a favorable decision of the court issuing a writ of habeas corpus. Salazar-Torres v. Benov, 2014 WL 4960586 (E.D. Cal.) ( ...


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