United States District Court, E.D. California
ORDER DIRECTING CLERK'S OFFICE TO ASSIGN A
DISTRICT JUDGE TO THIS MATTER FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER'S REQUEST FOR INJUNCTIVE RELIEF AND TO
GRANT RESPONDENT'S MOTION TO DISMISS (ECF NOS. 8,
Michael J. Seng UNITED STATES MAGISTRATE JUDGE.
is a former federal prisoner proceeding pro se with a
petition for writ of habeas corpus under the authority of 28
U.S.C. § 2241. Respondent Craig Apker is represented by
Roger Yang of the United States Attorney's Office,
Eastern District of California.
filed the instant petition for writ of habeas corpus on March
3, 2016. (Pet., ECF No. 1.) He contends that private
contractors employed at Taft Correctional Institution -
rather than Bureau of Prisons employees - conducted his
prison disciplinary proceedings, in violation of 28 C.F.R.
§§ 500.1(b) and 541.10. Plaintiff alleges that, as
a result of this defect, he was assessed a loss of good time
credits in violation of his due process rights.
2, 2016, Petitioner filed an “opposition” to the
results of a later disciplinary hearing and sought to enjoin
the results of that hearing. (ECF No. 8.)
3, 2016, Respondent filed a motion to dismiss the petition on
mootness grounds. (Motion, ECF No. 9.) On May 23, 2016,
Petitioner filed a response. (ECF No. 10.) Respondent filed
no reply and the time for doing so has passed. The matter
stands ready for adjudication.
Factual and Procedural History
was sentenced on March 7, 2007 to a determinate 135-month
term of imprisonment for the offense of conspiracy to
distribute more than 500 grams of methamphetamine. (Motion,
Exh. 1, Attachment 1; ECF No. 9-1 at 7.) At the time he filed
his petition, Petitioner was incarcerated at the Federal
Correctional Institution in Taft, California. (ECF No. 1.)
16, 2012, Petitioner was accused of engaging in a sexual act.
(Motion, Exh. 1, Attachment 2; ECF No. 9-1 at 10.) A hearing
on the disciplinary charge was conducted on July 19, 2012.
(Id.) The hearing was conducted by Discipline
Hearing Officer (“DHO”) Curtis Logan, an employee
of Management & Training Corporation (“MTC”),
the private company contracted to operate Taft.
(Id.; ECF No. 1.) DHO Logan found the allegations
true, disallowed 27 days of good conduct time, and imposed 60
days of disciplinary segregation. (Motion, Exh. 1, Attachment
2; ECF No. 9-1 at 11.)
in 2013, the United States Court of Appeals for the Ninth
Circuit decided Arrendondo-Virula v. Adler, 510
F.Appx. 581 (9th Cir. 2013). In this unpublished opinion, the
Ninth Circuit invalidated a disciplinary determination made
by Mr. Logan, as an employee of MTC, on the ground that he
was not authorized to discipline a prisoner pursuant to the
then-current version of 28 C.F.R. § 541.10(b)(1) (2010)
because he was not an “employee of the Bureau of
Prisons or Federal Prison Industries, Inc.”
Id. at 582 (citing 28 C.F.R. § 500.1(b)).
underwent a new disciplinary hearing on April 19, 2016 with
DHO Richard Deveraux, an employee of the Bureau of Prisons.
(Motion, Exh. 1, Attachment 2; ECF No. 9-1 at 2, 14-16.) The
new disciplinary hearing was conducted “based upon
pending litigation filed by [Petitioner] with the courts,
” presumably a reference to the instant petition.
(Id. at 15.) Deveraux found the allegation against
Petitioner to be true and reimposed the sanctions.
(Id. at 16.)
time Respondent filed his motion to dismiss, Petitioner's
projected release date was June 21, 2016. (Id. at
7.) On June 23, 2016, Petitioner filed a notice of change of
address with the Court, listing a non-custodial address. (ECF
petition seeks the reinstatement of good time credits based
on defects in Petitioner's initial, July 19, 2012,
disciplinary hearing. (ECF No. 1.) Respondent contends that
the petition is moot because the defects in the initial
disciplinary hearing were remedied when the matter was
reheard by DHO Devereaux, a BOP employee.(ECF No. 9.)
Petitioner contends that the petition is not moot because the
rehearing was “infected” by the conduct of MTC
employees and there is insufficient evidence to support the
decision by DHO Devereaux.