Strausbaugh v. Shartle

          REPORT AND RECOMMENDATION

          Bernardo P. Velasco United States Magistrate Judge

         Petitioner Michael Strausbaugh, who is currently incarcerated at the United States Penitentiary-Tucson, filed a Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody. (Doc. 1.) Respondent filed a Return and Answer to the § 2241 Petition (Doc. 11), and Petitioner a Reply (Doc. 25). Both parties briefed the standard for evaluating regulatory restrictions on outgoing mail. (Docs. 29, 37.) This case has been referred to Magistrate Judge Bernardo P. Velasco for a Report and Recommendation pursuant to Local Rules of Civil Procedure 72.1 and 72.2. (Doc. 6 at 3.) The Court recommends the District Judge: (1) find that Petitioner does not have standing to raise a First Amendment claim; (2) find that the greater weight of the evidence supported the Bureau of Prisons' (“BOP”) disciplinary decision; and (3) deny Petitioner's § 2241 Petition in its entirety.

         I. Summary and Parties' Posture

         The basis for Petitioner's claims arise from the disciplinary measures taken by the BOP subsequent to Petitioner's attempted mailing of another inmate's (“J.M.”)

         Administrative Remedy Appeal (“Appeal”) to the inmate's wife (“P.M.”). J.M. was prohibited from mailing the Appeal to his wife directly, and the Disciplinary Hearing Officer (“DHO”) found that Petitioner's actions constituted an attempt to circumvent the BOP's mail monitoring regulations. (Doc. 1 at 1.) The DHO sanctioned Petitioner with the loss of twenty-seven (27) days Good Conduct Time, and the loss of email and visitation privileges for one hundred eighty (180) days. (Ex. A, Att. 4, Doc. 11-3 at 18-19.)^[1]

         In Ground One, Petitioner claimed that his First Amendment rights were violated when the BOP reduced his Good Conduct Time because the regulations governing violations of mail monitoring procedures cannot meet the appropriate level of scrutiny for outgoing mail. (Doc. 1 at 10.) In Ground Two, Petitioner asserted that the DHO did not apply the “greater weight of the evidence” standard when it came to its decision, and the failure to do so violated 28 C.F.R. § 541.8(f). Id. at 15.

         Respondent countered that Petitioner admitted he sent the mail, and he was afforded a proper investigation as mandated by due process. (Doc. 11 at 9-10.) Furthermore, the mail monitoring procedures meet the level of scrutiny required for prison mail; they serve an important security function. Id. at 12-13. Therefore, Petitioner's constitutional rights were not violated when he was disciplined for breaking these rules. Id. Furthermore, “some evidence” existed to support the DHO's determination, and because Petitioner's evidence was not contradictory to the evidence against him, only “some evidence” was necessary to support the decision, not the “greater weight of the evidence” that Petitioner suggests. Id. at 10-11.

         The Court ordered that Respondent address whether Respondent's restriction on Petitioner's outgoing mail must meet a higher standard set forth in Procunier v. Martinez, 416 U.S. 396, 413 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 404 (1989), which states that restrictions on the content of outgoing mail must: (1) “further an important or substantial governmental interest unrelated to the suppression of expression, ” and (2) “the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.” (Doc. 28.)

         Respondent answered that Petitioner's actions were not protected under the First Amendment because the mailed document constituted J.M.'s third-party speech, not Petitioner's. (Doc. 29 at 1-2.) Regardless of Petitioner's lack of standing, Respondent argued that the violation meets the standard set forth in Procunier. Id. at 3-5. First, disciplining for violations of the mail monitoring procedures furthers the government's substantial interest in maintaining order and safety in prisons by prohibiting circumvention the procedures instituted for mail monitoring. Id. Second, because the Code for which Petitioner was found to have violated is not content-based, the Code serves an interest “unrelated to the suppression of expression.” Id. at 4 (quoting Procunier, 416 U.S. at 413). Finally, the limitation is no greater than necessary because the reduction of Good Conduct Time was not based on censorship of speech, but rather was due to a subversion of the mail monitoring policies that limited J.M. from mailing the Appeal to P.M. Id. at 4-5.

         Petitioner responded that because he authored J.M.'s Appeal, it was his speech and therefore afforded First Amendment protection. (Doc. 37 at 3.) Furthermore, Petitioner had an interest in exposing BOP misconduct, and this information was publicly available. Id. at 4.

         II. Disciplinary History

         While conducting a review of outgoing mail, on February 24, 2016, Special Investigative Services Technician D. Madrid found mail sent by Petitioner, which consisted of the Appeal of inmate J.M. addressed to J.M.'s wife, P.M. (Doc. 1 at 10; Ex. A, Att. 4, Doc. 11-3 at 12.) Madrid created an incident report on February 24, 2016, noting that J.M. was on mail restriction, and was unable to mail the documents himself. (Ex. A, Att. 4, Doc. 11-3 at 28.)

         Petitioner alleges that Madrid's statements in the report were false, including that: (1) Petitioner claimed J.M. asked Petitioner to send the Appeal to P.M.; (2) that Petitioner was aware that he was prohibited from mailing such information; and (3) J.M. made P.M. contact Petitioner's mother. (Doc. 1 at 10-12.) Instead, Petitioner claims he told Madrid that J.M. did not ask him to mail the Appeal, instead Petitioner's mother told Petitioner that P.M. had requested the mailing. Id. at 10. Furthermore, he did not admit he was aware his actions were a violation, but asserts he asked Madrid, “how can that be a violation of policy?” Id.

         The incident report was then investigated by Lieutenant S. Hellman, who provided a copy of the report to Petitioner on the same day of the incident. (Ex. A, Att. 4, Doc. 11-3 at 17, 28.) Petitioner claims he made a statement to Lt. Hellman consistent with that given to Madrid. (Doc. 1 at 12.) Lt. Hellman reported that Petitioner claimed his mother had been contacted by J.M.'s wife, P.M., who asked that Petitioner mail her the Appeal. (Ex. A, Att. 4, Doc. 11-3 at 28-29.) Lt. Hellman also reported that Petitioner stated J.M. asked him to send the mailing to P.M., and Petitioner knew this was in violation of the BOP's policies. Id. The incident report noted that Petitioner later ...