Pinson v. Baltazar ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jeremy Pinson, No. CV-18-0433-TUC-RM (BGM) 10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 C. Howard, Warden,1 13 Respondent. 14 Currently pending before the Court is Petitioner Jeremy Pinson’s pro se Petition 15 Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody 16 (“Petition”) (Doc. 1). Respondents have filed a Return and Answer to Petitioner Under 17 28 U.S.C. § 2241 for a Writ of Habeas Corpus (“Answer”) (Doc. 15), and Petitioner 18 replied (Doc. 16). The Petition is ripe for adjudication. Pursuant to Rules 72.1 and 72.2 19 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge 20 Macdonald for Report and Recommendation. The Magistrate Judge recommends that the 21 District Court deny the Petition (Doc. 1). 22 23 I. PROCEDURAL BACKGROUND 24 At the time Petitioner filed her Petition (Doc. 1), Petitioner was an inmate 25 26 1 The Court takes judicial notice that Juan Baltazar is no longer warden of USP–Tucson. 27 As such, the Court will substitute the new Complex Warden at the Federal Correctional Complex in Tucson, Arizona, which includes USP–Tucson. Accordingly, Warden C. Howard is 28 substituted as the sole Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 1 incarcerated at the United States Penitentiary (“USP”) in Tucson, Arizona (“USP– 2 Tucson”). See Petition (Doc. 1). Petitioner is currently incarcerated at USP Coleman II 3 in Sumterville, Florida. See Fed. Bureau of Prisons (“BOP”) Inmate Locater, 4 https://www.bop.gov/inmateloc/ (last visited March 3, 2021). In light of Petitioner’s 5 incarceration at FCI–Tucson at the time of the Petition’s filing, this Court retains 6 jurisdiction to consider the Petition. See Francis v. Rison, 894 F.2d 353 (9th Cir. 1990) 7 (“jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed 8 by a transfer of the petitioner and the accompanying custodial change.”) (citation 9 omitted). Petitioner is serving a 252-month aggregate sentence for Threats Against the 10 President, False Statement, Threat to a Juror, and Mailing Threatening Communications 11 in violation of Sections 871(a), 876(c), 1001(a)(2), and 876, Title 18, United States Code. 12 See Response (Doc. 15), Brieschke Decl. (Exh. “A”), Public Info. Inmate Data (as of 13 Dec. 19, 2018) (Doc. 15-2) at 7–9.2 Petitioner’s projected release date is June 19, 2026. 14 See Fed. BOP Inmate Locater, https://www.bop.gov/inmateloc/ (last visited March 3, 15 2021). On August 24, 2018, Petitioner filed a Petitioner Under 28 U.S.C. § 2241 for a 16 Writ of Habeas Corpus by a Person in Federal Custody. See Petition (Doc. 1). Petitioner 17 challenges a disciplinary conviction that resulted in her loss of privileges and good time 18 credits. Id. at 4. Petitioner alleges that she was falsely charged and was not permitted 19 witnesses or documentary evidence at her disciplinary hearing. Id. Petitioner requests 20 this Court order Respondent to expunge Officer Whelton’s report. Id. at 9. 21 22 II. FACTUAL BACKGROUND 23 On April 27, 2018 at approximately 10:45 a.m., Officer S. Whelton observed 24 Petitioner “standing in the medical corridor with inmate Long #08071-059 in front of the 25 mail room door.” Response (Doc. 15), Brieschke Decl. (Exh. “A”), Incident Rpt. No. 26 27 2 Page citations refer to the Case Management/Electronic Case Files (“CM/ECF”) page 28 number for ease of reference. - 2 - 1 3117895 (Doc. 15-2) (“Attach. “3”) at 45; see also Petition (Doc. 1) at 4.3 Officer 2 Whelton “asked them what they were doing[,] [and] Inmate Pinson stated that the 3 housing unit officer told her that she had legal mail and that was why she was in the 4 corridor.” Response (Doc. 15), Exh. “A,” Attach. “3” at 45; see also Petition (Doc. 1) at 5 4. Officer Whelton “called the housing unit officers and they informed [her] that they 6 never spoke to that inmate [that day].” Response (Doc. 15), Exh. “A,” Attach. “3” at 45. 7 Officer Whelton “also checked with the mail room staff and Inmate Pinson did not pick 8 up or drop off any mail.” Id. Officer Whelton charged Petitioner with lying and with 9 being in an unauthorized area. See Response (Doc. 15), Exh. “A,” Attach. “3”; see also 10 Response (Doc. 15), Exh. “A,” Attach. “2” at 13. 11 The following day, Senior Officer Specialist (“S.O.S.”) K. Lake delivered the 12 incident report to Petitioner. Response (Doc. 15), Brieschke Decl. (Exh. “A”), Incident 13 Rpt. No. 3117895 (“Attach. “3”) (Doc. 15-2) at 45. S.O.S. Lake also investigated the 14 incident and advised Petitioner of her rights. Id., Exh. “A,” Attach. “3” at 46. Petitioner 15 indicated that she understood those rights. Id. During S.O.S. Lake’s investigation, 16 Petitioner stated, “I did have legal mail. Ms. Whelton just wanted to be rude and started 17 yelling at me[.]” Id. S.O.S. Lake found the incident report was “accurate, based on the 18 charges and [] valid and justified as written.” Id. S.O.S. Lake noted that “this incident 19 report will be informally resolved through a verbal counseling concerning [Petitioner’s] 20 actions.” Response (Doc. 15), Brieschke Decl. (Exh. “A”), Incident Rpt. No. 3117895 21 (“Attach. “3”) (Doc. 15-2) at 46. 22 On April 30, 2018, the Unit Discipline Committee (“UDC”) conducted a hearing 23 on the incident. Response (Doc. 15), Exh. “A,” Attach. “3” at 45. At the hearing, 24 Petitioner stated that she “t[ook] responsibility for her actions.” Id. The UDC found that 25 26 3 The Incident Report at Attachment “3” does not contain an Incident Report Number. This number was derived by cross-referencing the date and time of the report with Petitioner’s 27 Inmate Discipline Data—Chronological Disciplinary Record. See Response (Doc. 15), Exh. “A,” Inmate Discipline Data—Chronological Disciplinary Record (Attach. “2”) (Doc. 15-2) at 28 13. - 3 - 1 Petitioner “[c]omitted the Prohibited Act as charged[,]” and imposed a sanction of thirty 2 (30) days loss of commissary privileges. Id. The UDC did not refer the charges to the 3 Discipline Hearing Officer (“DHO”). Id. 4 Petitioner did not submit an Administrative Remedy appeal regarding the UDC 5 findings from Incident Report No. 3117895. See Response (Doc. 15), Brieschke Decl. 6 (Exh. “A”), Admin. Remedy Gen. Retrieval 12/19/2018 (Attach. “4”) (Doc. 15-2).4 7 8 II. ANALYSIS 9 A. Jurisdiction 10 “Federal courts are always ‘under an independent obligation to examine their own 11 jurisdiction,’ . . . and a federal court may not entertain an action over which it has no 12 jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting 13 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). “Habeas corpus proceedings 14 are the proper mechanism for a prisoner to challenge the ‘legality or duration’ of 15 confinement.” Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing Preiser v. 16 Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 1833, 36 L. Ed. 2d 439 (1973)). “A civil 17 rights action, in contrast, is the proper method of challenging ‘conditions of . . . 18 confinement.” Id. (alteration in original) (citing Preiser, 411 U.S. at 498–99, 93 S. Ct. at 19 1840–41). The Ninth Circuit Court of Appeals has recognized habeas corpus jurisdiction 20 pursuant to Section 2241, Title 28, United States Code, for a prisoner’s claims that (1) 21 “[s]he has been denied good time credits without due process of law”; (2) “[s]he has been 22 subjected to greater restrictions of [her] liberty, such as disciplinary segregation, without 23 due process of law”; and (3) she is entitled to “expungement of a disciplinary finding 24 from [her] record if expungement is likely to accelerate the prisoner’s eligibility for 25 26 4 Remedy ID 954214-F1 notes that it was an appeal of a UDC decision, and Petitioner claimed that the Incident Report was written in retaliation. Response (Doc. 15), Brieschke Decl. 27 (Exh. “A”), Admin. Remedy Gen. Retrieval 12/19/2018 (Attach. “4”) (Doc. 15-2) at 53. This appeal, however, was related to Incident Report No. 3159073. Response (Doc. 15), Brieschke 28 Decl. (Exh. “A”), Request for Admin. Remedy (BP-9) 8/20/2018 (Attach. “5”) (Doc. 15-2) at 57. - 4 - 1 parole.” Bostic v. Carlson, 84 F.2d 1267, 1269 (9th Cir. 1989) (citations omitted), 2 overruled on other grounds by Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en 3 banc). In other words, “[s]uits challenging the validity of the prisoner’s continued 4 incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper 5 remedy for a state prisoner who is making a constitutional challenge to the conditions of 6 [her] prison life, but not to the fact or length of [her] custody.”5 Ramirez v. Galaza, 334 7 F.3d 850, 857 (9th Cir. 2003) (quoting Preiser, 411 U.S. at 498–99, 93 S. Ct. at 1840– 8 41). 9 Here, Petitioner seeks relief with respect to disciplinary proceedings while 10 incarcerated at a federal facility. See Petition (Doc. 1). Although her Petition (Doc. 1) 11 indicates a loss of good time credits, the only sanction imposed was a thirty (30) day loss 12 of commissary privileges. Response (Doc. 15), Brieschke Decl. (Exh. “A”), Incident 13 Rpt. No. 3117895 (“Attach. “3”) (Doc. 15-2) at 46. Thus, “[t]he sanction imposed did 14 not affect the length of time [Petitioner] will serve in custody and did not change h[er] 15 release date from prison[,] [and] [a]s a result, [s]he cannot pursue this grievance against 16 prison officials by way of habeas corpus.” Elkins v. Jusino, 2020 WL 4589058, at *2 17 (C.D. Cal. June 22, 2020) (citations omitted); see also Everett v. Clark, 52 Fed. App’x 18 959, 960 (9th Cir. 2002) (affirming lower court’s finding that § 2241 petitioner seeking 19 relief for loss of commissary privileges failed to state a claim for relief); Strouse v. 20 Shartle, 2017 WL 2224926, at *2 (D. Ariz. May 22, 2017) (recommending dismissal for 21 lack of jurisdiction where petitioner did not challenge the fact or duration of 22 confinement). 23 In reply, Petitioner asserts that the Supreme Court of the United States “made clear 24 in Ziglar, that Habeas Relief was an available remedy to address prison conditions 25 issues[.]” Reply (Doc. 16) at 2 (citing Ziglar v. Abbassi, — U.S. —, 137 S. Ct. 1843, 198 26 27 5 For federal prisoners a civil rights suit is brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 28 (1971). - 5 - 1 L. Ed. 2d 290 (2017)). Petitioner’s contention is misplaced. Ziglar involved the 2 treatment of six (6) men of Arab or South Asian descent, who were in the country 3 illegally, “arrested during the course of the September 11 investigation, and detained in 4 the Administrative Maximum Special Housing Unit for periods ranging from three to 5 eight months.” Ziglar, — U.S. —, 137 S. Ct. at 1853. “The complaint named as 6 defendants three high executive officers in the Department of Justice and two of the 7 wardens at the facility where the detainees had been held.” Id., 137 S. Ct. at 1851. 8 “Seeking to invoke the Court’s decision in Bivens, respondents brought four claims under 9 the Constitution itself . . . alleg[ing] that petitioners detained them in harsh pretrial 10 conditions for a punitive purpose, in violation of the substantive due process component 11 of the Fifth Amendment[;] . . . [their detention was] because of their actual or apparent 12 race, religion, or national origin, in violation of the equal protection component of the 13 Fifth Amendment[;] . . . the Wardens subjected them to punitive strip searches unrelated 14 to any legitimate penological interest, in violation of the Fourth Amendment and the 15 substantive due process component of the Fifth Amendment[;] . . . [and] the Wardens 16 knowingly allowed the guards to abuse respondents in violation of the substantive due 17 process component of the Fifth Amendment.” Id., 137 S. Ct. at 1853–54. “Respondents 18 also brought a claim under 42 U.S.C. § 1985(3), which forbids certain conspiracies to 19 violate equal protection rights.” Id., 137 S. Ct. at 1854. The Court considered, inter alia, 20 whether it should extend a Bivens-type remedy to respondents’ challenge to the 21 conditions of their confinement. Ziglar v. Abbassi, — U.S. —, 137 S. Ct. 1843, 1859, 22 198 L. Ed. 2d 290 (2017). In making this assessment, the Court observed that 23 respondents “challenge[d] large-scale policy decisions concerning the conditions of 24 confinement imposed on hundreds of prisoners.” Id., 137 S. Ct. at 1862. The Court 25 further observed that it had “left open the question whether [respondents] might be able 26 to challenge their confinement conditions via a petition for a writ of habeas corpus” as a 27 possible alternative form of judicial relief. Id., 137 S. Ct. at 1862–63. The Court 28 reiterated the existence of such alternative remedies in declining to authorize a Bivens - 6 - 1 claim against the Warden for alleged prisoner abuse, but returned the issue to the lower 2 courts for consideration in the first instance. Id., 137 S. Ct. at 1864–65. Noting the 3 possibility of habeas corpus relief for certain condition of confinement claims does not 4 confer jurisdiction on Petitioner’s claim in this case. 5 Petitioner also asserts in her reply that she is entitled to relief because “BOP 6 violated its own policy by failing to dispose of the incident report following ‘counseling’ 7 the petitioner when it counseled petitioner ‘informally’ then proceed[ed] to discipline her 8 anyways.” Reply (Doc. 16) at 1. “A habeas claim cannot be sustained based solely upon 9 the BOP’s purported violation of its own program statement because noncompliance with 10 a BOP program statement is not a violation of federal law.” Reeb v. Thomas, 636 F.3d 11 1224, 1227 (9th Cir. 2011). As such, this claim should be dismissed for a lack of 12 jurisdiction. 13 Finally, Petitioner’s declaration in support of her reply indicates that “[b]ecause of 14 this incident report, my male custody classification score is higher which maintains my 15 placement in a maximum security BOP facility.” Reply (Doc. 16) at 3. To the extent that 16 this can be construed as separate claim for expungement, the Court is without 17 jurisdiction. “[A] prisoner has no constitutional right to a particular classification status.” 18 Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). “In Moody v. Daggett, 429 19 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 471 (1976), the Supreme Court, in a footnote, 20 expressly rejected a claim that ‘prisoner classification and eligibility for rehabilitative 21 programs in the federal system’ invoked due process protections. Hernandez, 833 F.2d at 22 1318 (quoting Moody, 429 U.S. at 88 n. 9, 97 S. Ct. at 279). In Hernandez, the Ninth 23 Circuit Court of Appeals noted that “[a] different question might be presented if a 24 prisoner’s classification adversely affected h[er] eligibility for parole or good time 25 credits[,]” but declined to decide that issue. Hernandez, 833 F.2d at 1318. Because 26 Petitioner does not have a constitutional right to a particular classification status, and her 27 challenge to the disciplinary proceeding will not affect the duration of her confinement, 28 this claim should be dismissed for a lack of jurisdiction. - 7 - 1 B. Mootness 2 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 3 Co. of America, 511 U.S. 375, 377, 114 S. Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). “The 4 jurisdiction of federal courts is defined and limited by Article III of the Constitution.” 5 Flast v. Cohen, 392 U.S. 83, 94, 88 S. Ct. 1942, 1949, 20 L. Ed. 947 (1968). Further, the 6 judicial power of this and all federal courts is limited to actual cases or controversies. 7 U.S. Const. art. III; see also, Flast, 392 U.S. at 94–95, 88 S. Ct. at 1949–50 (1968). “In 8 general a case becomes moot ‘when the issues presented are no longer “live” or the 9 parties lack a legally cognizable interest in the outcome.’” Murphy v. Hunt, 455 U.S. 478, 10 481, 102 S. Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982) (quoting United States Parole 11 Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S. Ct. 1202, 1208, 63 L. Ed. 2d 479 12 (1980)). 13 The Court lacks jurisdiction over Petitioner’s habeas claim, but she may be 14 entitled to assert a claim in a civil rights suit. See Badea v. Cox, 931 F.2d 573, 574 (9th 15 Cir. 1991) (a civil rights suit is the proper method to challenge conditions of 16 confinement). Petitioner’s thirty (30) day loss of commissary, however, has apparently 17 expired. As such, any potential civil rights claim would be moot. See Wilson v. Terhune, 18 319 F.3d 477, 482–83 (9th Cir. 2003) (holding that in a challenge to expired prison 19 disciplinary sanction moot where collateral consequences have not been alleged). As 20 such, the Court declines to convert Petitioner’s habeas petition to a Bivens complaint. 21 22 III. RECOMMENDATION 23 For the reasons delineated above, the Magistrate Judge recommends that the 24 District Judge enter an order DISMISSING Petitioner’s Petition Under 28 U.S.C. § 2241 25 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1) for lack of 26 jurisdiction. 27 Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil 28 Procedure, any party may serve and file written objections within fourteen (14) days after - 8 - || being served with a copy of this Report and Recommendation. A party may respond to 2|| another party’s objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-18- 5 || 0433-TUC-RM. 6 Failure to file timely objections to any factual or legal determination of the 7\| Magistrate Judge may result in waiver of the nght of review. The Clerk of the Court 8 || shall send a copy of this Report and Recommendation to all parties. 9 Dated this 12th day of March, 2021. 11 Honorable Bruce G. Macdonald United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _9-