Stinson v. Blanckensee

          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 March 14, 2019. (Doc. 1) The petitioner, Troy Stinson, is currently incarcerated at the U.S. Penitentiary in Tucson, Arizona. Id. She^[1] challenges the loss of privileges and good conduct time resulting from six separate prison disciplinary proceedings. Id.

         The respondent filed an answer opposing the petition on May 30, 2019. (Doc. 13) Stinson 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. The disciplinary hearings did not violate due process.

         Summary of the Case

         Stinson is serving a sentence of 168 months' imprisonment for Sexual Exploitation of a Child - Production of Child Pornography. (Doc. 13-1, p. 2) She is currently confined in the U.S. Penitentiary in Tucson, Arizona. Id. Her projected release date is November 20, 2026. Id.

         Stinson challenges the BOP's handling of Incident Reports 3196253 (alarm), 3194412 (money), 3197002 (cutting), 2951174 (milk), 2935541 (location), and 2890523 (phone). (Doc. 1, p. 10) She argues generally that she failed to receive “(I) a hearing before an impartial decision maker, (ii) an evaluation as required by 28 CFR 541.6 despite evidence of significant mental health issues, (iii) an opportunity to call witnesses in her defense, (iv) an opportunity to present documentary evidence in her defense, [and] (v) a staff representative to review evidence the petitioner was not allowed to see, but which was considered by the DHO for the finding of guilt.” Id. She argues the BOP's handling of the Incidents violated her Fifth and Eighth Amendment rights under the U.S. Constitution. (Doc. 1)

         The respondents filed an answer opposing the petition on May 30, 2019. (Doc. 13) Stinson did not file a reply.

         Discussion: Non-Cognizable Claims

         Incident Reports 3194412 (money), 2951174 (milk), and 2935541(location) resulted in relatively minor sanctions. The BOP's handling of these incidents, therefore, did not implicate Stinson's Constitutional rights. These claims should be dismissed as non-cognizable.

         In Incident Report 2935541 (location), Stinson was charged with Prohibited Act Code 316, Out of Bounds. (Doc. 13-1, pp. 91-92) Stinson was observed in a unit to which she did not belong. Id. The Unit Disciplinary Committee found Stinson responsible and sanctioned her with the loss of 30 days of email privileges. Id.

         In Incident Report 2951174 (milk), Stinson was charged with Prohibited Act Code 305, Possession of Anything not Authorized, 20 containers of milk. (Doc. 13-1, p. 94) The Unit Disciplinary Committee found Stinson responsible and sanctioned her with the loss of 30 days of email privileges. Id.

         In Incident Report 3194412 (money), Stinson was charged with Prohibited Act Code 217, Giving Money to, or Receiving Money from, Any Person for the Purpose of Introducing Contraband. (Doc. 13-1, pp. 97-99) An investigator discovered that the father of another inmate arranged to put $100 into Stinson's account. Id. The Discipline Hearing Officer found Stinson responsible and sanctioned her with a loss of 27 days good conduct time and a loss of 90 days of telephone privileges. Id. On appeal, the charge was reduced to a Code 328, Giving/Accepting Money W/O Authorization, a Moderate Severity Offense, and the 27 days of good conduct time were restored. (Doc. 13-1, p. 120)

         These three incidents resulted in a temporary loss of email and telephone privileges. The loss of these privileges does not create an “atypical and significant hardship on [an] inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 2300 (1995). Accordingly, their loss does not rise to a violation of due process. See Sandin, 515 U.S. at 486-487, 115 S.Ct. at 2301-2302 (Segregated confinement for 30 days did not implicate due process liberty interest.); Lauderdale v. Holland, 2014 WL 3374774, at *2 (E.D. Ky. 2014) (“[T]he temporary suspension of a prisoner's telephone privileges does not implicate a protected liberty interest.”). Similarly, their loss does not result in the type of “extreme deprivation” that constitutes an Eighth Amendment violation. Hudson v. McMillian, 503 ...