United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. Bowman United States Magistrate Judge.
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
respondent, Warden Barbara von Blanckensee, filed a response
opposing the petition on March 25, 2019. (Doc. 12) Allen did
not file a reply.
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.
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)
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)
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)
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.
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)
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)
court finds that the petition should be denied on the merits.
The court expresses no opinion on the respondent's
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 ...