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Dwayne Underwood v. Paul Copenhaver

September 24, 2012

DWAYNE UNDERWOOD,
PETITIONER,
v.
PAUL COPENHAVER,
RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS COPRUS AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT [Doc. 1]

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).

Petitioner is currently in custody at the United States Penitentiary in Atwater, California. He has a projected release date of January 31, 2020, via Good Conduct Time release. See Ex. 1, Declaration of Jennifer Vickers.

Petitioner filed the instant petition for writ of habeas corpus on January 3, 2012, and challenges a disciplinary action taken against him for violating BOP disciplinary rules. More specifically, Petitioner contends (1) his due process rights were violated during the disciplinary process; and, (2) BOP officials failed to follow policy during the disciplinary process.

Respondent filed a response to the petition on August 30, 2012, and Petitioner filed a traverse on September 20, 2012.

ANALYSIS I. Subject Matter Jurisdiction and Venue

Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). At the time the instant petition was filed, Petitioner was housed at the United States Penitentiary in Atwater, California. Since Atwater is located within the Eastern District of California, this Court has jurisdiction to review the instant petition.

Prisoners cannot be entirely deprived of their constitutional rights, but their rights may be diminished by the needs and objectives of the institutional environment. Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, so a prisoner is not afforded the full panoply of rights in such proceedings. Id. at 556. Thus, a prisoner's due process rights are moderated by the "legitimate institutional needs" of a prison. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), citing Superintendent, etc. v. Hill, 472 U.S. 445, 454-455 (1984).

II. Procedural Due Process and Some Evidence

However, when a prison disciplinary proceeding may result in the loss of good time credits, due process requires that the prisoner receive: (1) advance written notice of at least 24 hours of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Hill, 472 U.S. at 454; Wolff, 418 U.S. at 563-567. In addition, due process requires that the decision be supported by "some evidence." Hill, 472 U.S. at 455, citing United States ex rel. Vatauer v. Commissioner of Immigration, 273 U.S. 103, 106 (1927). The "some evidence" standard is "minimally stringent," and a decision must be upheld if there is any reliable evidence in the record that could support the conclusion reached by the fact finder. Hill, 472 U.S. at 455-456; see also Barnsworth v. Gunderson, 179 F.3d 771, 779 (9th Cir. 1990); Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987). Determining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or the weighing of evidence. Hill, 472 U.S. at 455; Toussaint v. McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986).

On or about February 10, 2011, Petitioner was issued an incident report for "Threatening Another with Bodily Harm," and "Engaging in a Group Demonstration," in violation of 28 C.F.R. § 541.13, Codes 203 & 212. See Ex. 2, Declaration of Richard Devereauz; Attachment 1, Incident Report. The written report specifically stated by officer Green:

On Thursday, 2-10-11 at 1:10P.M., I was making rounds in the B-1 dayroom. An inmate asked me if I could change the television channel at which time I advised him that I could not change a television that was for the news to a music channel. Inmate #53690-066 Underwood, Dwayne, then began shouting "I hate this place, it is fucking stupid." Inmate Underwood then started up the stair case saying "I am ready to crack some heads." I felt this statement was directed towards me. Approximately 20 inmates in B1 unit were in the dayroom listening to inmate Underwood's comments. Inmate Underwood then entered cell B01-206 and began slamming locker doors. I then notified the Operations Lieutenant and inmate Underwood was escorted over to the Lieutenant's Office.

Id. On February 10, 2011, Petitioner was provided advance written notice of the violation when a copy of the report was delivered to him. Id.

On February 14, 2011, an initial hearing was conducted by the Unit Discipline Committee (UDC). See Ex. 2, Attachment 2, Discipline Hearing Officer Report p. 3. Petitioner was found guilty of the infractions, and he lost 30 days of e-mail privileges and 30 days of commissary privileges. Id. Petitioner appealed the UDC's findings, and the Bureau of Prison's Regional Director of the Mid-Atlantic Regional Office, ordered a rehearing to be conducted by the Disciplinary Hearing Officer (DHO). Id. The Regional Director found that because Petitioner was sentenced under the Prison Litigation Reform Act, the infractions should have been heard by the DHO in a full ...


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