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Clark v. Samuels

United States District Court, D. Arizona

February 13, 2018

William James Clark, Petitioner,
v.
Charles E. Samuels, Jr., et al., Respondents.

          ORDER

          HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE.

         Currently pending before the Court is Petitioner William James Clark's pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Petition”) (Doc. 1). Respondents have filed a Return and Answer (“Answer”) (Doc. 19). Petitioner did not file a Reply. The Petition is ripe for adjudication.

         As an initial matter, “the proper respondent to a habeas petition is ‘the person who has custody over [the petitioner].” Rumsfeld v. Padilla, 542 U.S. 426, 434, 124 S.Ct. 2711, 2717, 159 L.Ed.2d 513 (2004) (quoting 28 U.S.C. § 2242) (alterations in original). As such, the Warden of the United States Penitentiary-Tucson (“USP-Tucson”), where Petitioner was housed at the time his Petition (Doc. 1) was filed, is the proper Respondent, but Charles E. Samuels, Jr., Director of the Bureau of Prisons is not. See id. The Court takes judicial notice, however, that Louis Winn is no longer warden of USP- Tucson. As such, the Court will substitute the new Warden of USP-Tucson, J. T. Shartle, as the sole Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

         I. PROCEDURAL BACKGROUND

         At the time Petitioner filed his Petition (Doc. 1), Petitioner was an inmate incarcerated at USP-Tucson in Tucson, Arizona. See Petition (Doc. 1). Petitioner is currently incarcerated at the Federal Correctional Institution (“FCI”) Victorville Medium I in Victorville, California. See Fed. Bureau of Prisons (“BOP”) Inmate Locater, https://www.bop.gov/inmateloc/ (last visited February 2, 2018). Petitioner is serving a 106-month sentence for Felon in Possession of a Firearm; Fictitious Obligations; and Impersonating a Federal Officer or Employee. See Response (Doc. 19) White Decl. (Exh. “A”), Inmate Data (Attach. “1”) at 3. Petitioner commited the underlying offense which gave rise to his incarceration on August 3, 2010. Id., Exh. “A, ” Attach. “1” at 3. Petitioner's projected release date is September 2, 2018. See Fed. BOP Inmate Locater, https://www.bop.gov/inmateloc/ (last visited February 2, 2018). On December 22, 2014, Petitioner filed a Petitioner Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody. See Petition (Doc. 1). Petitioner challenges disciplinary convictions that resulted in his loss of good time credits. See Id. Petitioner alleges that due process violations during the disciplinary process resulted in the disallowance of ninety-five (95) days of good time credits. See Id. Petitioner requests this Court order Respondent to expunge the disciplinary violations and return the ninety-five (95) days of good time credits. See id.

         II. FACTUAL BACKGROUND

         This matter arises from three (3) separate Incident Reports. Petitioner seeks relief from the aggregate punishment of those proceedings. Petitioner instituted the current action on December 22, 2014. See Petition (Doc. 1).

         A. Incident Report Number 2462624

         On June 29, 2013 at approximately 1:55 p.m., Senior Officer Specialist (“S.O.S.”) J. Holt was monitoring a telephone call placed from telephone station 7514-CLP-K-A that occurred at approximately 9:43 a.m. on June 28, 2013. Response (Doc. 19), White Decl. (Exh. “A”), Incident Report No. 2462624 (Attach. “2”) at 1; Petition (Doc. 1) at 14. The call was placed using Petitioner's Register Number; however, S.O.S. Holt recognized that the voice on the call was not that of Petitioner. Response (Doc. 19), Exh. “A, ” Attach. “2” at 1; Petition (Doc. 1) at 14. Upon review of the ViconNet camera system, S.O.S. Holt observed inmate Errol Sullivan place the call and proceed to talk on the phone for the duration. Response (Doc. 19), Exh. “A, ” Attach. “2” at 1; Petition (Doc. 1) at 14. S.O.S. Holt charged Petitioner with the prohibited act of Use of the Telephone for Abuses Other Than Illegal Activity in violation of Code 297. Response (Doc. 19), Exh. “A, ” Attach. “2” at 1; Petition (Doc. 1) at 14.

         The following day, Lieutenant L. Brown delivered the incident report to Petitioner. Response (Doc. 19), Exh. “A, ” Attach. “2” at 1; Petition (Doc. 1) at 14. Lt. Brown also investigated the incident and advised Petitioner of his rights. Response (Doc. 19), Exh. “A, ” Attach. “2” at 2. Petitioner indicated that he understood those rights. Id. During Lt. Brown's investigation, Petitioner stated that he did not agree with the charges and that his “number was used without [his] knowledge.” Id. Lt. Brown concluded that Petitioner had been appropriately charged, and forwarded the Incident Report to the Unit Discipline Committee (“UDC”) for further disposition. Id.

         On July 1, 2013, the UDC conducted its hearing. Response (Doc. 19), Exh. “A, ” Attach. “2” at 1. Petitioner stated that he “was locked in [his] cell and [] did not give [Sullivan] [Petitioner's] pac # or approval to use [his] phone.” Id. Petitioner also requested that the video be reviewed. Id. The UDC referred the matter to the Discipline Hearing Officer (“DHO”) for further hearing, and if Petitioner was found guilty, appropriate sanctions. Id. The UDC also provided Petitioner with a Notice of Discipline Hearing Before the DHO and his rights at that hearing. Response (Doc. 19), Exh. “A, ” Attach. “2” at 3-4. Petitioner indicated that he wished to have a staff representative at his DHO hearing, but did not request any witnesses. Id., Exh. “A, ” Attach. “2” at 3.

         On July 2, 2013, Petitioner had a DHO hearing before DHO W. White. See Response (Doc. 19), Exh. “A, ” Attach. “2” at 12-14. DHO White noted that on July 1, 2013, Counselor J. Bosbous had advised Petitioner of his rights before the DHO, and he indicated that he understood those rights. Id., Exh. “A, ” Attach. “2” at 12-13. DHO White further noted that Petitioner requested Case Manager G. Gatlin as his staff representative to assist him at the hearing. Id. DHO White indicated that Case Manager Gatlin did appear at the hearing. Id. DHO White confirmed that Petitioner had not requested any witnesses. Id. Petitioner “denied the charge to the DHO and stated, ‘I gave him access to my PAC number for emergency purposes only[;] [h]e used it without my knowledge[;] I have requested a new PAC number.'” Id.

         DHO White considered the facts presented in the body of the written report; Petitioner's statement; Case Manager Gatlin's confirmation that Petitioner's statement before the DHO was the same statement that he had made to the case manager; the Viconnect video surveillance photographs; and Trufone telephone call logs. Response (Doc. 19), Exh. “A, ” Attach. “2” at 13. DHO White “considered [Petitioner's] denial statement; however, [Petitioner] [is] the only inmate that should have access to [his] PAC number.” Id. DHO White reminded Petitioner that it is his responsibility to report to his unit counsel anytime he believes his account is compromised. Id. DHO White found the reporting officer's statement more credible in light of his “legal obligation to report truthful and accurate facts[, ]” but also accepted Petitioner's statement that he had given inmate Sullivan access to his PAC number for emergency purposes only, and stated that “regardless of the reason, it is never permissible to allow another inmate to utilize your phone account.” Id. DHO White commented that “the use of a telephone while incarcerated is a privilege, not a right . . . [and] by attempting to abuse the telephone system, [Petitioner] interfere[d] with the institution procedures for monitoring telephone calls[, ] . . . [and] encourag[ing] others to engage in similar behaviors.” Id. Accordingly, DHO White determined that Petitioner “committed the prohibited act of telephone abuse (non-criminal)” in violation of Code 297. Response (Doc. 19), Exh. “A, ” Attach. “2” at 13. DHO White imposed sanctions of twenty-seven days disallowed good conduct time (“GCT”), and 180 days loss of telephone privileges. Id. On July 2, 2013, DHO White signed the DHO report and it was delivered to Petitioner on July 5, 2013. Id., Exh. “A, ” Attach. “2” at 14.

         On July 17, 2013, Petitioner filed his Regional Administrative Remedy Appeal regarding Incident Report No. 2462624. Petition (Doc. 1) at 15. The record does not reflect a response was issued. On August 23, 2013, Petitioner filed a Central Office Administrative Remedy Appeal to the Director. Petition (Doc. 1) at 16. Again, the record does not reflect a response was issued.

         B. Incident Report Number 2446852

         On May 20, 2013 at approximately 1:20 a.m., Senior Officer (“SO”) J. Higgins was conducting rounds in the K-1 housing unit. Response (Doc. 19), White Decl. (Exh. “A”), Incident Report No. 2446852 (Attach. “3”) at 1. SO Higgins “observed that the window of cell 219 had been broken and there were pieces of glass scattered from cell 219 to the front of cell 214.” Id. Petitioner and his cellmate were noted to have been “secured inside the cell when the window was broken.” Id. SO Higgins charged Petitioner with the prohibited act of Destroying Government Property in violation of Code 218. Response (Doc. 19), Exh. “A, ” Attach. “3” at 1.

         Later the same day Lieutenant K. Kelly delivered the incident report to Petitioner. Id. Lt. Kelly also investigated the incident and advised Petitioner of his rights. Id., Exh. “A, ” Attach. “3” at 2. During Lt. Kelly's investigation, Petitioner stated that he “was having Sevier [sic] chest pains, [and] pushed the direst [sic] button numerous times nobody answered, [he] started banging on the door and unfortunately the last swing hit the window[, ] [but] [he] never meant to hit the window let alone break it; [he] just wanted help for [his] chest pains.” Id. Lt. Kelly noted that Petitioner displayed a good attitude, and understood his rights. Id. Petitioner did not request any witnesses. Id. Lt. Kelly forwarded the Incident Report to the UDC for further disposition. Id.

         On May 22, 2013, the UDC conducted its hearing. Response (Doc. 19), Exh. “A, ” Attach. “3” at 1. At the hearing, Petitioner stated that he “was having chest pain[, ] [and] [] pushed the duress button and nothing happened[, ] so [he] was hitting the door and acidently [sic] broke the window.” Id. Petitioner further stated that his “celly had nothing to do with it.” Id. The UDC referred the matter to the DHO for a further hearing, and if Petitioner was found guilty, appropriate sanctions. Id. The UDC also provided Petitioner with a Notice of Discipline Hearing Before the DHO and his rights at that hearing. Id., Exh. “A, ” Attach. “3” at 3-4. Petitioner declined a staff representative, and did not request any witnesses, for his DHO hearing. Id., Exh. “A, ” Attach. “3” at 3.

         On May 28, 2013, Petitioner had a DHO hearing before DHO W. White. See Response (Doc. 19), Exh. “A, ” Attach. “3” at 6-8. DHO White noted that on May 22, 2013, Counselor J. Bosbous had advised Petitioner of his rights before the DHO. Id., Exh. “A, ” Attach. “3” at 6. At the DHO hearing, Petitioner indicated that he understood his rights, waived his right to a staff representative at the DHO hearing, and requested no witnesses. Id., Exh. “A, ” Attach. “3” at 6-7. Petitioner “admitted to the charge before the DHO and stated, ‘I was having chest pains[;] I hit the duress button about 5 times and no one came[;] I hit the door and accidentally broke the window with my cane[;] [i]t was about 30 minutes before the officer came up to check on me.'” Id., Exh. “A, ” Attach. “3” at 6.

         DHO White relied on Petitioner's admission of guilt, photographs of the broken window, and the facts presented in the written report in finding Petitioner “committed the prohibited act of destruction of government property, Code 218[.]” Response (Doc. 19), Exh. “A, ” Attach. “3” at 7. DHO White noted “[r]egardless of the reason, it is never permissible to destroy government property.” Id. DHO White further noted that “[p]roperty intentionally or unintentionally destroyed by inmates prevents the use of those funds for other purposes[, ] . . . [and] [w]hen [Petitioner] destroyed/damaged Government property [he] caused a monetary loss to the U.S. Government.” Id. Accordingly, DHO White imposed sanctions totaling twenty-seven (27) days disallowance of GCT, ninety (90) days loss of commissary privileges, and monetary restitution of $125.00. On May 30, 2013, DHO White signed the DHO report and delivered it to Petitioner on June 5, 2013.

         On May 28, 2013, Petitioner appealed by letter to the Regional Director. Petition (Doc. 1) at 21-22. On June 3, 2013 this initial appeal was rejected because it was not on the proper form. Id. at 20. On June 5, 2013, Petitioner filed a second Regional Administrative Remedy Appeal, this time on the BP-10 form. Id. at 23-24. Based on the record before the Court, it appears that Petitioner was never given a response. On July 26, 2013, Petitioner filed a Central Office Administrative Remedy Appeal. Id. at 25. Again, the record does not reflect a response to this appeal.

         C. Incident ...


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