United States District Court, E.D. California
ALLISON CLAIRE, Magistrate Judge.
Petitioner is a federal prisoner currently incarcerated at the Federal Correctional Institution in Herlong, California, in the Eastern District of California. He seeks relief, pursuant to 28 U.S.C. § 2241, from a prison disciplinary finding that resulted in the forfeiture of good conduct time credits. ECF No. 1. Respondent has answered on the merits. ECF No. 9. Petitioner filed a reply. ECF No. 10.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is serving a 240 month sentence for drug-related offenses. On December 29, 2012, while petitioner was incarcerated at the Camp attached to the Federal Correctional Institution in Big Springs, Texas, a special inmate count was conducted at 7:00 p.m. One inmate was unaccounted for, so a "bed book count" was conducted at 7:10 p.m., and it was determined that petitioner was missing. All inmates with the exception of petitioner reported to their dorms in response to the search announcement. A second bed book count was conducted with the same result. The entire Camp was searched, and petitioner was not located. At 9:20 p.m., petitioner entered the Camp Office and told the officer that he had been asleep in the television room. An incident report charged petitioner with a violation of BOP prohibited act code 102, escape. ECF No. 1 at 22 (Incident Report).
A hearing was held before a Disciplinary Hearing Officer ("DSO") on January 10, 2013. The DSO considered witness statements, a lieutenant's log, a "583 report, " staff memorandumranda, and an escape flyer as well as the statement of the petitioner and that of the reporting officer. The DSO found that petitioner was guilty of prohibited act code 200, a less serious type of escape involving voluntary return within four hours. The DSO imposed sanctions as follows: disallowance of 27 days good conduct time, 60 days of disciplinary segregation, 120 days loss of commissary privileges and 120 days of telephone restriction. ECF No. 1 at 31-34 (Disciplinary Hearing Officer Report).
Petitioner filed an administrative appeal with the Regional Director, who found sufficient evidence to support the escape finding and denied the appeal. ECF No. 1 at 36 (Response of Regional Director). Petitioner then appealed to the BOP's Central Office for Inmate Appeals. The Central Office sent petitioner a receipt acknowledging that his appeal had been received on May 20, 2012, and stating that a response to the appeal was due on June 29, 2013. ECF No. 1 at 41 (Receipt). Petitioner was subsequently notified that the time to respond to his appeal was extended to July 19, 2013. ECF No. 1 at 43 (Extension of Time for Response). No formal response to the appeal was issued. Petitioner filed an "affidavit of default" with the Central Office, dated August 8, 2013, contending that the failure to timely respond to his appeal required expungement of the disciplinary finding and restoration of his good time credits. ECF No. 1 at 45, 48-53 (Affidavit of Default). The Central Office sent petitioner a form letter dated August 22, 2013, explaining that the absence of response constituted a denial. ECF No. 1 at 55
This § 2241 petition followed.
Petitioner presents three claims: (1) that his due process rights were violated by the imposition of sanctions for a prohibited act different than the one charged; (2) that the disciplinary finding was not supported by "some evidence" that petitioner actually escaped from the custody of BOP; and (3) that the failure of BOP officials to respond to his appeal constitutes a "default" requiring relief from the sanctions imposed by the hearing officer. Respondent acknowledges that petitioner has exhausted his administrative remedies as to all three claims. See ECF No. 9 at 3-4 (citing Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986)). Respondent also agrees that the disallowance of good conduct time credits, imposed as a sanction for the challenged disciplinary violation, affects the computation of petitioner's sentence. Id. at 4. This nexus between the challenged disciplinary decision and the duration of petitioner's confinement supports this court's exercise of jurisdiction. See Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004). Accordingly, the court turns to the merits of petitioner's claims.
I. Due Process Does Not Forbid The Downgrading Of A Disciplinary Charge
Petitioner contends that he was not given advance notice of the charge of which he was found guilty, in violation of Wolff v. McDonnell, 418 U.S. 539 (1974). As the Supreme Court held in Wolff, due process in the prison disciplinary context requires "advance written notice of the claimed violation and a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken." Id. at 563. The advance written notice of the pending disciplinary charges should be provided "no less than 24 hours" prior to the disciplinary hearing "in order to inform [the inmate] of the charges and to enable him to marshal the facts and prepare a defense." Id. at 564.
Petitioner was initially charged with escape, prohibited act code 102, which is defined as follows: "Escape from escort; escape from any secure or non-secure institution, including community confinement; escape form unescorted community program or activity; escape from outside a secure institution." 28 C.F.R. § 541.1, et seq. at Table 1 (2012) ("Table 1"), ECF No. 9-1 at 73.
Petitioner alleges that he did not learn until several days after his hearing that he had been found guilty of a different prohibited act of escape, code 200. ECF No. 1 at 6-7. Code 200 is defined as follows: "Escape from a work detail, non-secure institution, or other non-secure confinement, including community confinement, with subsequent ...