United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Bernardo P. Velasco United States Magistrate Judge
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.
Summary and Parties' Posture
basis for Petitioner's claims arise from the disciplinary
measures taken by the BOP subsequent to Petitioner's
attempted mailing of another inmate's
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.)
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.
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.
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.)
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.
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.
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.)
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.
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 ...