(HC)Manns v. Trate ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONY MANNS, No. 1:23-cv-01382-SKO (HC) 12 Petitioner, SUPPLEMENTAL FINDINGS AND RECOMMENDATION TO SUMMARILY 13 v. DISMISS PETITION 14 TRATE, [FOURTEEN DAY OBJECTION DEADLINE] 15 Respondent. 16 17 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2241. 19 I. Background 20 Petitioner filed his initial habeas petition in this Court on September 22, 2023. (Doc. 1.) 21 Petitioner presented claims concerning a disciplinary proceeding in which he was found guilty of 22 possessing alcohol. On September 27, 2023, the Court conducted a preliminary review of the 23 petition and issued Findings and Recommendations to dismiss the petition for failure to state a 24 claim for relief. (Doc. 5.) On October 24, 2023, Petitioner filed a motion requesting leave to file 25 an amended petition to present cognizable claims concerning the disciplinary proceeding. (Doc. 26 7.) On October 25, 2023, the Court stayed the Findings and Recommendations and granted 27 Petitioner leave to file a First Amended Petition. (Doc. 8.) Petitioner was granted thirty (30) days 28 to file the First Amended Petition. Over thirty (30) days passed, and no amended petition was 1 filed. Thus, on December 1, 2023, the Court reinstated the Findings and Recommendations. 2 (Doc. 11.) 3 On December 4, 2023, the Court received and filed a First Amended Petition. (Doc. 12.) 4 The amended petition bears a date of November 25, 2023. Under the mailbox rule in Houston v. 5 Lack, 487 U.S. 266, 276 (1988), a petition is deemed filed on the date it is signed and presumably 6 handed to prison authorities for filing. Giving Petitioner the benefit of the mailbox rule, the 7 amended petition is timely filed. Nevertheless, as discussed below, the amended petition also 8 fails to state a cognizable claim and the Court will recommend it be dismissed. 9 II. First Amended Petition 10 As stated in the initial Findings and Recommendations, a search of Petitioner’s cell was 11 conducted where a bag full of an unknown liquid substance was discovered that had a strong odor 12 of alcohol. The substance was tested with a resulting alcohol reading of 0.052% BAC. A hearing 13 was held and Petitioner was found guilty of violating Code 113 for possessing alcohol. (Doc. 1 at 14 11.) 15 As more fully discussed in the initial Findings and Recommendations, Petitioner does not 16 dispute that there was at least “some evidence” to support the decision. Superintendent, Mass. 17 Corr. Inst. v. Hill, 472 U.S. 445, 454-455 (1984) (“the requirements of due process are satisfied if 18 some evidence supports the decision by the prison disciplinary board to revoke good time 19 credits.”) The substance tested positive for alcohol which Petitioner does not dispute. In his First 20 Amended Petition, Petitioner presents the same claim he did in his initial petition--that the 21 institution failed to test the substance twice again within 15 minutes as required by BOP 22 regulations. As explained in the Findings and Recommendations, if a prison otherwise complies 23 with due process requirements, the failure to comply with its own more generous procedures is 24 not a constitutional violation. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994). Petitioner 25 does not dispute that the initial test returned a positive result for alcohol, and he has put forth no 26 evidence to question the reliability of the test. The initial positive test satisfies the “some 27 evidence” standard. As the Supreme Court stressed in Hill, the “some evidence” standard does 28 not impose a rigorous level of due process review: 1 This standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced. Ascertaining whether this standard is 2 satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant 3 question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. 4 5 Hill, 472 U.S. at 455-56 (emphasis added). 6 In his amended petition, Petitioner cites to Glover v. McClintock, 2014 WL 171920 (D. 7 Az. 2014) claiming that two additional tests must be administered within 15 minutes. McClintock 8 provides no support for Petitioner because McClintock concerned the procedures for conducting a 9 breathalyzer test on an inmate. Id. at 3-4. Here, Petitioner was not subjected to a breathalyzer 10 test. Instead, a bag full of a liquid substance was located in Petitioner’s cell that tested positive 11 for alcohol. Thus, he fails to demonstrate that there was not at least “some evidence” of a 12 substance containing alcohol discovered in his cell. 13 For the foregoing reasons, the Court finds that Petitioner fails to state a claim that his due 14 process rights were violated. Wolff v. McDonnell, 418 U.S. 539, 555 (1974); Hill, 472 U.S. at 15 455. 16 ORDER 17 Accordingly, the Court hereby SUPPLEMENTS the Findings and Recommendations of 18 September 27, 2023, and RECOMMENDS the First Amended Petition be DISMISSED WITH 19 PREJUDICE for failure to state a claim. 20 The Findings and Recommendations are submitted to the United States District Court 21 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 22 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 23 California. 24 Within fourteen (14) days after being served with a copy, Petitioner may file written 25 objections with the Court. Such a document should be captioned “Objections to Magistrate 26 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s 27 ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time 28 ///// 1 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 2 Cir. 1991). 3 IT IS SO ORDERED. 4 5 Dated: December 6, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28