(HC) Syrue v. Thompson ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SYRUE, Case No. 1:19-cv-01289-AWI-EPG-HC 12 Petitioner, FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION 13 v. FOR WRIT OF HABEAS CORPUS 14 P. THOMPSON,1 ORDER DIRECTING CLERK OF COURT TO SUBSTITUTE RESPONDENT 15 Respondent. 16 17 Petitioner Michael Syrue is a federal prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. In his petition, Petitioner challenges a prison 19 disciplinary proceeding on due process grounds. For the reasons discussed herein, the 20 undersigned recommends denial of the petition for writ of habeas corpus. 21 I. 22 BACKGROUND 23 Petitioner currently is in the custody of the Federal Bureau of Prisons (“BOP”) at the 24 Federal Correctional Institution in Herlong, California, serving a sixty-month imprisonment term 25 for being a felon in possession of a firearm. The incident in question, however, occurred while 26 Petitioner was housed at the Federal Correctional Institution in Terre Haute, Indiana. 27 1 P. Thompson is the Warden at the Federal Correctional Institution in Herlong, California, where Petitioner is housed. (ECF No. 14 at 1 n.1). Accordingly, P. Thompson is substituted as Respondent in this matter. See Ortiz- 1 At approximately 4:16 p.m. on July 15, 2018, Senior Officer Specialist Brandenburg 2 (“SOS Brandenburg”) escorted Petitioner to the lieutenant’s office to be visually searched. 3 Petitioner was ordered to stand and face the wall in the lieutenant’s office prior to the search. 4 SOS Brandenburg was standing in the doorway of the lieutenant’s office and observed Petitioner 5 bend over and reach into his sock and shoe and then step across the corridor and throw an 6 unidentified object, wrapped in paper, toward an open window adjacent to the lieutenant’s office. 7 SOS Brandenburg retrieved the object, which appeared to be contraband, from the windowsill. 8 The suspected contraband, which was wrapped in a two-inch by two-inch piece of white paper, 9 contained one hundred pieces of cup-up card stock (“tabs”), measuring 1/8-inch by 1/8-inch 10 each, that appeared to be saturated with an unknown substance. (ECF No. 1 at 10;2 App. 19,3 11 ECF No. 14-1). 12 The suspected contraband was delivered to Special Investigative Services (“SIS”) staff 13 for testing. (ECF No. 1 at 10; App. 19). SIS Technician Camden utilized the Narcotics 14 Identification System Kit (“NIK”) to test the tabs, which were found to be positive for narcotics 15 (amphetamines). (ECF No. 1 at 10; App. 19, 22). 16 Petitioner was charged with possession of drugs (BOP Code violation 113) and attempted 17 destruction of item during a search (BOP Code violation 115A). (ECF No. 1 at 10; App. 19). On 18 July 30, 2018, Disciplinary Hearing Officer (“DHO”) Bradley held a hearing. (App. 4, 42–45). 19 According to the DHO Report, Petitioner denied the charges and stated, “I threw a piece of paper 20 out of the window with information of who owed me stamps.” (App. 42). Petitioner waived the 21 right to a staff representative and waived the right to witnesses. The DHO found that the acts 22 were committed as charged. (App. 42). For the Code 113 violation, Petitioner was assessed a 23 sanction of 41 days of disallowed good conduct time, 180 days’ loss of phone privilege, 180 24 days’ loss of commissary, and $100 monetary fine. For the Code 115A violation, Petitioner was 25 assessed a sanction of 41 days of disallowed good conduct time, 180 days’ loss of phone 26 privilege, 180 days’ loss of commissary, and $100 monetary fine. (App. 44). 27 2 Page numbers refer to the ECF page numbers stamped at the top of the page. 3 “App.” refers to the Appendix filed by Respondent on January 2, 2020. (ECF No. 14-1). Appendix page numbers 1 After administratively appealing the decision, Petitioner filed the instant federal petition 2 for writ of habeas corpus on September 16, 2019. (ECF No. 1). Respondent filed a response, and 3 Petitioner filed a reply. (ECF Nos. 14, 17). 4 II. 5 DISCUSSION 6 A. Due Process Requirements for Disciplinary Proceedings 7 Prisoners cannot be entirely deprived of their constitutional rights, but their rights may be 8 diminished by the needs and objectives of the institutional environment. Wolff v. McDonnell, 9 418 U.S. 539, 555 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, 10 so a prisoner is not afforded the full panoply of rights in such proceedings. Id. at 556. 11 When a prison disciplinary proceeding may result in the loss of good time credits, due 12 process requires that the prisoner receive: (1) advance written notice of the charges at least 13 twenty-four hours before a disciplinary hearing; (2) an opportunity, when consistent with 14 institutional safety and correctional goals, to call witnesses and present documentary evidence in 15 his defense; and (3) a written statement by the fact-finder of the evidence relied on and the 16 reasons for the disciplinary action. Superintendent v. Hill, 472 U.S. 445, 454 (1984); Wolff, 418 17 U.S. at 563–67. Inmates are entitled to an impartial decisionmaker in a disciplinary proceeding. 18 Wolff, 418 U.S. at 570–71. 19 In addition to various procedural requirements for disciplinary proceedings as set forth in 20 Wolff, due process requires that there be “some evidence” to support the disciplinary decision to 21 revoke good time credits. Hill, 472 U.S. at 454–55. “Ascertaining whether this standard is 22 satisfied does not require examination of the entire record, independent assessment of the 23 credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether 24 there is any evidence in the record that could support the conclusion . . . .” Id. at 455–56. 25 The Due Process Clause only requires that prisoners be afforded those procedures 26 mandated by Wolff and its progeny; it does not require that a prison comply with its own, more 27 generous procedures. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated in part 1 B. Review of Claims 2 Petitioner contends that the DHO’s finding that Petitioner possessed drugs should be 3 overturned. (ECF No. 1 at 11). Petitioner asserts that his due process rights were violated 4 because “the DHO did not view all or any of the evidence presented to determine a fair and 5 impartial decision.” (Id.). 6 1. Sufficiency of the Evidence 7 The Supreme Court has held that “the requirements of due process are satisfied if some 8 evidence supports the decision by the prison disciplinary board to revoke good time credits.” 9 Hill, 472 U.S. at 455. “Ascertaining whether this standard is satisfied does not require 10 examination of the entire record, independent assessment of the credibility of witnesses, or 11 weighing of the evidence. Instead, the relevant question is whether there is any evidence in the 12 record that could support the conclusion . . . .” Id. at 455–56. 13 In his memorandum, SIS Technician Camden wrote in pertinent part: 14 One of the pieces of paper was tested utilizing the Narcotics Identification System kit (NIK). The correct NIK testing sequence 15 and the proper amount of substance was tested. Beginning with test A, the results indicated an immediate orange color that turned to 16 brown. This color found on the Polytesting Chart leads to test U. Upon placing the substance in Test U, breaking the ampules left to 17 right and agitating each for thirty (30) seconds, the substance inside test kit U turned maroon in color. This color found on the 18 Polytesting Chart indicates the substance is positive for Amphetamines. 19 20 (App. 22). 21 Petitioner asserts that the DHO did not properly review SIS Technician Camden’s 22 statements regarding the NIK procedure because proper review would show that Camden’s 23 statements are “contrary to the actual NIK testing procedures.” (ECF No. 1 at 11). Petitioner 24 argues that the NIK test photo shows that the test result was negative. Petitioner contends that 25 Test U turns blue to show a positive, but in this case remained maroon. (ECF No. 1 at 12). 26 The Court is not tasked with weighing evidence in order to determine whether the 27 requirements of due process are satisfied. “Instead, the relevant question is whether there is any 1 Although Petitioner asserts that the SIS technician misinterpreted the color change of the NIK 2 test, he does not submit any evidence in support of his contention that the SIS technician erred. 3 Further, Petitioner acknowledges that the test indicated a color change and does not dispute or 4 submit evidence that disputes a change in color reflects the presence of an illicit substance. 5 Here, the DHO relied on “the officer’s written report; photographic evidence and video 6 evidence reaffirming the officer’s written statements; supporting memorandum, including 7 statements from SIS Technician Camden; Petitioner’s silence; and Petitioner’s statements at the 8 UDC and DHO hearings” in finding that Petitioner committed the acts as charged. (App. 4–5). 9 Therefore, the Court finds that there is “some evidence” to support the decision to disallow good 10 conduct time. Accordingly, Petitioner is not entitled to habeas relief on this ground. 11 2. The DHO’s Alleged Bias 12 To the extent that Petitioner contends the DHO’s review of SIS Officer Camden’s 13 statements regarding the NIK procedure demonstrated that the DHO was not fair and impartial, 14 the undersigned finds that Petitioner is not entitled to habeas relief. Inmates are entitled to an 15 impartial decisionmaker in a disciplinary proceeding. Wolff, 418 U.S. at 570–71. However, the 16 record before this Court does not demonstrate that the DHO “present[ed] such a hazard of 17 arbitrary decision making” Wolff, 418 U.S. at 571, or “dishonestly suppresse[d] evidence of 18 innocence,” Edwards v. Balisok, 520 U.S. 641, 647 (1997), by relying on SIS Technician 19 Camden’s NIK analysis in coming to his determination. Accordingly, habeas relief is not 20 warranted on this ground. 21 3. Opportunity to View Evidence 22 In the traverse, Petitioner also argues that he was never shown a true color photo of the 23 NIK test analysis until months after the DHO hearing. (ECF No. 17 at 4). However, Wolff and 24 its progeny do not require that prisoners be afforded an advanced opportunity to view the 25 evidence used against them. See Hill, 472 U.S. at 454–55. Accordingly, Petitioner is not entitled 26 to habeas relief on this ground. 27 /// 4:40 LOCOS UNNI ED MMC LO POO VI eT OY OV VY 1 Il. 2 RECOMMENDATION AND ORDER 3 Based on the foregoing, the undersigned HEREBY RECOMMENDS that the petition for 4 | writ of habeas corpus be DENIED. 5 Further, the Clerk of Court is DIRECTED to SUBSTITUTE P. Thompson as Respondent 6 | in this matter. 7 This Findings and Recommendation is submitted to the assigned United States District 8 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 9 | Rules of Practice for the United States District Court, Eastern District of California. Within 10 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 11 | written objections with the court and serve a copy on all parties. Such a document should be 12 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 13 | objections shall be served and filed within fourteen (14) days after service of the objections. The 14 | assigned United States District Court Judge will then review the Magistrate Judge’s ruling 15 | pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 16 | the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 17 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 18 | Cir. 1991)). 19 IT IS SO ORDERED. 21| Dated: _ July 6, 2020 [spe ey 09 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28