Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vasquez v. Benov

United States District Court, E.D. California

July 3, 2014

SERGIO PULIDO VASQUEZ, Petitioner,
v.
MICHAEL L. BENOV, Respondent.

FINDINGS AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)

JENNIFER L. THURSTON, Magistrate Judge.

Petitioner Sergio Vasquez is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Seemingly[1], Petitioner challenges the results of two prison disciplinary hearings at which he was found to have been in breach of prison policies. (Doc. 1 at 13) As a result of the disciplinary actions, Petitioner was assessed a loss of good time credits and suffered other discipline. Id. at 8.

In his petition, Petitioner argues that because the hearing officer was not an employee of the Bureau of Prisons and was, instead, an employee of the private prison, the discipline was improperly imposed. (Doc. 1) Respondent argues that Petitioner failed to exhaust his administrative remedies and, therefore, the petition should be denied. (Doc. 14 at 4-7) For the reasons set forth below, the Court recommends the Petition for Writ of Habeas Corpus be DENIED.

I. Factual Background

Petitioner is housed at Taft Correctional Institution, a government-owned but privately-run prison contracted with the Bureau of Prisons. (Doc. 1 at 3) On February 27, 2008, prison officials found a cell phone in the cubicle of an inmate. (Doc. 14-1 at 21) After subpoenaing the telephone company records related to the number assigned to the phone, prison investigators identified four telephone numbers that were found only on Petitioner's approved call list. Id . The numbers were associated with friends of Petitioner, his cousin and his wife. Id. at 25. During the investigation, Petitioner admitted that he used the cell phone. Id. at 21-22. Thus, the investigator determined Petitioner had been in possession of the cell phone and used it to call the four telephone numbers. Id. at 21.

On April 24, 2008, DHO Logan heard the disciplinary complaint against Petitioner. (Doc. 14-1 at 24-26) Logan considered the evidence set forth above, among other evidence, and Petitioner's statement at the hearing that he did not use the cell phone. Id. at 25. Based upon this evidence, Logan determined that the charge was true and that Petitioner should be sanctioned with 40 days disallowance of good conduct credit and 30 days of disciplinary segregation. Id. at 26. In the statement of decision which also set forth the intended discipline, Petitioner was advised of his right to appeal the determination within 20 days. Id . On May 7, 2008, Logan's recommended sanction was adopted by the BOP's DHO. (Doc. 14-1 at 4, 40)

Petitioner appealed the determination on May 26, 2008 but did not complain about the authority of Logan to act as the DHO. (Doc. 14-1 at 44-45) Instead, Petitioner challenged the merits of the charge. Id . On June 12, 2008, the appeal was denied. (Doc. 14-1 at 46) In the written denial, Petitioner was advised of his right to appeal the determination within 30 days. Id . Petitioner did not do so at that time. Id . Instead, on April 3, 2013-nearly five years later-Petitioner submitted an appeal to the National Inmate Appeals Administrator related to this discipline. (Doc. 1 at 10) It was rejected as untimely. Id.

On November 21, 2009, a prison official reported that Petitioner requested she bring an aloe vera plant leaf to the prison so he could give it to an ailing inmate-friend to use as medicine. (Doc. 14-1 at 28) As a result, Petitioner was charged with a disciplinary infraction which prohibits inmates seeking favors from correctional staff. Id . Initially, Petitioner denied asking for the plant and then reported he asked for it but only because he had been sick. Id. at 28-29. The investigator determined Petitioner had requested the plant leaf. Id. at 29.

On November 22, 2009, DHO Logan heard the disciplinary complaint against Petitioner. (Doc. 14-1 at 31-33) Logan considered the investigatory report and Petitioner's current statement that he did not request the correctional officer to bring the plant leaf to the prison. Id. at 32. At the conclusion of the hearing, Logan found the charge to be true and recommended 27 days disallowance of good conduct credit and 27 days of disciplinary segregation. Id . In the statement of decision which also set forth the intended discipline, Petitioner was advised of his right to appeal the determination within 20 days. Id . On January 14, 2010, Logan's recommended sanction was adopted by the BOP's DHO. (Doc. 14-1 at 4, 42)

On February 2, 2010, Petitioner appealed the decision to impose the discipline. (Doc. 14-1 at 48-49) Petitioner did not challenge the authority of the DHO to conduct the hearing, though he raised due process grounds related to the vague statements in the charging document and its lack of completeness. Id . On February 18, 2010, the appeal was denied. (Doc. 14-1 at 50) In the written denial, Petitioner was advised of his right to appeal the determination within 30 days. Id . On March 23, 2010, Petitioner submitted an appeal to the National Inmate Appeals Administrator. (Doc. 14-1 at 52-53) Once again, Petitioner challenged the outcome of the previous determination but did not claim the DHO lacked the authority to conduct the hearing. Id . Petitioner's appeal was denied on August 30, 2010. ( Id. at 54)

II. Jurisdiction

Habeas corpus relief is appropriate when a person "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c); Williams v. Taylor , 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution based upon the outcome of a prison disciplinary proceeding. If a constitutional violation has resulted in the loss of credits, it affects the duration of a sentence and may be remedied by way of a petition for writ of habeas corpus. Young v. Kenny , 907 F.2d 874, 876-78 (9th Cir. 1990). Thus, this Court has subject matter jurisdiction. Moreover, at the time the petition was filed Petitioner was in custody at the Taft Correctional Institute, located in Taft, California, which is located within the jurisdiction of this Court. Therefore, this Court is the proper venue. See 28 U.S.C. § 2241(d).

III. Standard of Review

"It is well settled that an inmate's liberty interest in his earned good time credits cannot be denied without the minimal safeguards afforded by the Due Process Clause of the Fourteenth Amendment.'" Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir.1996) (quoting Taylor v. Wallace , 931 F.2d 698, 700 (10th Cir.1991)). Though not afforded the full panoply of rights, due process requires the prisoner receive: (1) advance written notice 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 fact finder of the evidence relied on and the reasons for the disciplinary action. Superintendent, Mass. Correctional Inst. v. Hill , 472 U.S. 445, 454 (1985); Wolff v. McDonnell , 418 U.S. 539, 563-67 (1974). Indeed, "revocation of good time does not comport with the minimum requirements of procedural due process unless the findings of the prison disciplinary board are supported by some evidence in the record." Hill , 472 U.S. at 455 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.