McRae v. Blanckensee ( 2021 )

1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Andre McRae, No. CV-20-00510-TUC-RM 12 Petitioner, ORDER 13 v. 14 Barbara von Blanckensee, 15 Defendant. 16 17 On May 12, 2021, Magistrate Judge Maria S. Aguilera issued a Report and 18 Recommendation (“R&R”) (Doc. 32), recommending that this Court dismiss Petitioner’s 19 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 without prejudice for 20 lack of subject matter jurisdiction. The R&R further recommended that Petitioner’s 21 Motion to Hold Case in Abeyance (Doc. 29) be denied. Petitioner timely filed an 22 Objection to the R&R (Doc. 34), to which Respondent responded (Doc. 35). For the 23 following reasons, the Objection will be overruled and the R&R will be adopted in full. 24 I. Background 25 Petitioner McRae, who is currently incarcerated at the United State Penitentiary 26 (“USP”) in Thomson, Illinois, filed a Petition for Writ of Habeas Corpus pursuant to 28 27 U.S.C. § 2241, alleging that prison officials violated his due process rights during 28 disciplinary proceedings held while he was incarcerated in USP-Tucson in Tucson, 1 Arizona. (Docs. 1, 32.) Petitioner was incarcerated in USP-Tucson from January 8, 2020 2 to January 14, 2021. (Doc. 22.) In April 2020, Petitioner was charged with possessing 3 drugs in USP-Tucson after a prison official found a substance during a search of his 4 property that tested positive for illicit drugs. (Id. at 2.) The Unit Discipline Committee 5 (“UDC”), which reviews alleged inmate infractions, referred the matter to a Discipline 6 Hearing Officer (“DHO”), who then held a disciplinary hearing. (Id. at 2-3; see also Doc. 7 32 at 1-2.) The DHO determined that Petitioner had possessed drugs and sanctioned him 8 with the loss of 41 days of good conduct time, 30 days of disciplinary segregation, and 9 180 days without phone and visitation privileges. (Docs. 32 at 2.) A few months later, the 10 incident report was rewritten and again referred to a DHO, who again concluded that 11 Petitioner had committed the infraction and reinstated the prior sanctions against him. 12 (Id.) 13 Petitioner appealed that decision by filing a Regional Administrative Remedy 14 Appeal on December 3, 2020. (Doc. 22 at 5.) The Regional Director denied the appeal on 15 January 6, 2021 and Petitioner did not appeal the denial. (Id.) After becoming aware of 16 new information, the Regional Director again reviewed the appeal and informed 17 Petitioner that the incident report would be rewritten and reprocessed. (Id.) The Regional 18 Director informed Petitioner of his right to appeal if the new disciplinary hearing resulted 19 in sanctions against him. (Id.) As a result, Petitioner’s prior drug possession conviction 20 was expunged from his disciplinary record, his good conduct time was restored, and he is 21 awaiting a new DHO hearing at USP-Thomson. (Doc. 22 at 7; Doc. 32 at 3, 5; see also 22 Docs. 29, 33.) 23 The R&R determines that Petitioner’s claims are not ripe for review because he is 24 seeking to challenge the results of the upcoming DHO hearing that has not yet occurred. 25 (Doc. 32 at 3.) The R&R further finds Petitioner’s claims moot to the extent that he seeks 26 relief for due process violations that occurred during his previous disciplinary hearings, 27 because the disciplinary conviction has already been expunged, his good conduct time 28 restored, and the disciplinary segregation and temporary loss of phone and visitation 1 privileges he suffered cannot be redressed by a favorable ruling. (Id. at 3, 5.) Thus, the 2 R&R finds that the Court lacks subject matter jurisdiction over Petitioner’s claims and 3 recommends denying the Petition on that basis. (Id. at 6.) 4 II. Standard of Review 5 A district judge must “make a de novo determination of those portions” of a 6 magistrate judge’s “report or specified proposed findings or recommendations to which 7 objection is made.” 28 U.S.C. § 636(b)(1). In conducting its review, the court is free to 8 “accept, reject, or modify, in whole or in part, the findings or recommendations made by 9 the magistrate judge.” Id. “When no timely objection is filed, the court need only satisfy 10 itself that there is no clear error on the face of the record in order to accept the 11 recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b) advisory committee’s note 12 to 1983 addition; see also Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at 13 *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report 14 and Recommendation). 15 Where objections raised “are repetitive of the arguments already made to the 16 magistrate judge, a de novo review is unwarranted.” Vega-Feliciano v. Doctors’ Ctr. 17 Hosp., Inc., 100 F. Supp. 3d 113, 116 (D.P.R. 2015) (internal citation omitted); see also 18 Camardo v. Gen. Motors Hourly–Rate Employees Pension Plan, 806 F. Supp. 380, 382 19 (W.D.N.Y. 1992) (“It is improper for an objecting party to . . . submit[] papers to a 20 district court which are nothing more than a rehashing of the same arguments and 21 positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties 22 are not to be afforded a ‘second bite at the apple’ when they file objections to a R&R.”)). 23 III. Analysis 24 Petitioner’s Objection raises several arguments, many of which Magistrate Judge 25 Aguilera addressed in her R&R. The Court declines to consider arguments that the 26 magistrate judge has already heard, considered, and decided. Vega-Feliciano, 100 F. 27 Supp. 3d at 116. Thus, this analysis will address only those objections properly raised to 28 this Court. 28 U.S.C. § 636(b)(1). 1 First, Petitioner objects that this Court retains jurisdiction over his Petition because 2 the incident report number for the upcoming disciplinary hearing is the same incident 3 report number for which his conviction was expunged and sanctions reversed. (Doc. 34 at 4 3.) However, this argument fails to address the doctrines of ripeness or mootness and fails 5 to explain why they should not apply to his claims. The fact that the incident report 6 number has remained the same does not implicate the liberty interests at stake in the 7 disciplinary hearing that give rise to a Due Process claim. See Wolff v. McDonnell, 418 8 U.S. 539, 557 (1974) (loss of good time credits implicates the Due Process Clause). In 9 other words, the fact that the incident report number has remained the same across the 10 disciplinary hearings does not affect Magistrate Judge Aguilera’s analysis of Petitioner’s 11 claims. 12 Next, Petitioner objects to the R&R’s recommendation that this Court deny his 13 Motion to Hold Case in Abeyance. (Doc. 34 at 4.) Petitioner disputes Magistrate Judge 14 Aguilera’s conclusion that his claim is not ripe, stating that he filed the Motion to Hold 15 Case in Abeyance so that this Court would retain jurisdiction over the matter. (Id.) 16 Petitioner’s argument does not address the legal basis for the R&R’s conclusion that his 17 claims are unripe. The mere possibility that the Court could hold his case in abeyance 18 pending the outcome of his upcoming disciplinary hearing does not show that, as a matter 19 of law, the Court could or should do so. As the R&R correctly found, “[a] claim is not 20 ripe for adjudication if it rests upon contingent future events that may not occur as 21 anticipated, or indeed may not occur at all.” (Doc. 32 at 3); Texas v. United States, 523 22 U.S. 296, 300 (1998) (internal quotation and citation omitted). Holding a case in 23 abeyance does not confer on the Court jurisdiction that it does not have. See Lujan v. 24 Defs. of Wildlife, 504 U.S. 555, 559-60 (1992) (Article III limits jurisdiction to actual 25 cases and controversies). 26 Lastly, the Court notes that nothing prevents Petitioner from challenging the result 27 of the upcoming disciplinary hearing if it is unfavorable. (See Doc. 32 at 4.) Petitioner 28 has demonstrated his ability to engage in the prison grievance process required for 1 || administrative exhaustion, as well as his ability to litigate in federal court. As Petitioner is □□ now incarcerated in USP-Thomson, any due process challenges to a new disciplinary 3 || conviction must be presented to the United States District Court for the Northern District 4||_ of Illinois. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (habeas claims || challenging the execution of a sentence pursuant to § 2241 must be brought in the custodial court). 7 The Court has reviewed Magistrate Judge Aguilera’s R&R, the parties’ briefs, and 8 || the record. The Court agrees with Magistrate Judge Aguilera’s R&R. 9 Accordingly, 10 IT IS ORDERED that the Report and Recommendation (Doc. 32) is accepted 11 || and adopted in full. 12 IT IS FURTHER ORDERED that Petitioner’s Objection (Doc. 34) is overruled. 13 IT IS FURTHER ORDERED that Petitioner’s Motion to Hold Case in Abeyance (Doc. 29) is denied. 15 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus || pursuant to 28 U.S.C. § 2241 (Doc. 1) is dismissed without prejudice. The Clerk of 17 || Court is directed to enter judgment accordingly and close this case. 18 Dated this 29th day of June, 2021. 19 20 21 — 4 fp’ Honorable Rostehary □□□□□□□ 23 United States District □□□□□ 24 25 26 27 28 _5-