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Allen v. Blanckensee

United States District Court, D. Arizona

June 26, 2019

John Scott Allen, Petitioner,
v.
Barbara von Blanckensee, Warden, Respondent.

          REPORT AND RECOMMENDATION

          Leslie A. Bowman United States Magistrate Judge.

         Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241, filed on December 26, 2018. (Doc. 1 p. 1) The petitioner, John Scott Allen, challenges the loss of 27 days of good conduct time after a prison disciplinary proceeding. Id.

         The respondent, Warden Barbara von Blanckensee, filed a response opposing the petition on March 25, 2019. (Doc. 12) Allen did not file a reply.

         Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bowman for a Report and Recommendation. The petition should be denied on the merits.

         Summary of Fact

         The United States District Court for the District of Minnesota sentenced Petitioner Allen to 204 months' incarceration for Bank Robbery, in violation of 18 U.S.C. § 2113(A). (Doc. 12-2 p. 3) He is currently confined at the United States Penitentiary in Tucson, Arizona. (Doc. 12-2 p. 2)

         On November 20, 2018, Allen involved himself in a verbal altercation that later escalated into a fight. (Doc. 12-3 p. 10) Senior officer Gutierrez gave verbal directives to stop the fighting, but the inmates refused. Id. Gutierrez had to use pepper spray to stop the fighting. Id. Then the inmates complied and submitted to restraints. Id. Photos of Allen were taken at 11:12 a.m. on November 20, 2018. (Doc. 12-3 p. 16, 17)

         An advanced written notice of the charge (copy of Incident Report) was given to Allen at 1:45 p.m. on November 20, 2018 by the investigating lieutenant. (Doc. 12-3 p. 9) Allen made a comment, “That was not me, I know of the situation, but I didn't do anything.” Id. On November 25, 2018, in the Unit Disciplinary Committee (UDC) hearing, Allen was advised of his rights by the Disciplinary Hearing Officer (DHO). Id. He stated that he received his rights by the UDC and understood them. Id. He waived his rights to have a staff representative or witnesses. (Doc. 12-3 p. 12)

         The DHO hearing was held on December 4, 2018. (Doc. 12-3 p. 9) Allen did not request a staff representative or witnesses. (Doc. 12-3 p. 22) He stated, “I was defending myself.” Id. The DHO considered Allen's statement that he was defending himself. (Doc. 12-3 p. 10) However, the DHO thought that any act of physical aggression by one inmate against another inmate is a fight. Id. Moreover, he noted that Allen involved himself in a verbal altercation before fighting. Id. The DHO considered the evidence including the photos then finally found Allen committed the prohibited act of Fighting With Another Person under Code 201. Id. His sanctions include the disallowing of 27 days of good conduct time, loss of email for 120 days and loss of visitation for 120 days. Id.

         On December 19, 2018, Allen filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. 2241 challenging the loss of 27 days of good conduct time. (Doc.1, p. 1) He argues (1) he was not allowed to request witnesses and a staff representative and was not allowed to present certain evidence including video surveillance recording and another inmate's mental health issues; and (2) he was not allowed to present evidence of self-defense. (Doc. 1, p. 10)

         The respondent filed an answer on March 25, 2019 in which he argues the petition should be dismissed for failure to exhaust or, in the alternative, denied on the merits. (Doc. 12) Allen did not file a reply. See (Doc. 1)

         The court finds that the petition should be denied on the merits. The court expresses no opinion on the respondent's alternative arguments.

         Discussion

         “Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen.” Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Nevertheless, prisoners do retain some constitutional rights concerning the procedures for administering prison discipline. Id. These rights are not as ...


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