United States District Court, D. Arizona
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 ...