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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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8 RUSSEL BRUCE CLARK, Case No. 1:24-cv-00211-SAB-HC

9 Petitioner, FINDINGS AND RECOMMENDATION

RECOMMENDING EVIDENTIARY

10 v. HEARING ON GROUND ONE AND

DENIAL OF REMAINING GROUNDS FOR

11 WARDEN, FCI MENDOTA, RELIEF

12 Respondent. (ECF No. 12)

13 ORDER DIRECTING CLERK OF COURT

TO RANDOMLY ASSIGN DISTRICT

14 JUDGE

15 16 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2241. 18 I. 19 BACKGROUND 20 Petitioner is in the custody of the Federal Bureau of Prisons (“BOP”) at the Federal 21 Correctional Institution in Mendota, California (“FCI Mendota”), serving a sentence imposed by 22 the United States District Court for the Eastern District of Washington. (ECF No. 1 at 1.1) On 23 March 14, 2023, Petitioner was charged with destruction and disposal of an item during attempt 24 to search, in violation of BOP Code 115. (App. 18, 23.2) On April 5, 2023, Disciplinary Hearing 25 Officer (“DHO”) D.E. Tyson (“DHO Tyson”) held a hearing and found Petitioner violated BOP 26 Code 115. (App. 18–19.)

27 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 “App.” refers to the Appendix filed by Respondent. (ECF No. 12-1.) Appendix page numbers refer to the page 1 On February 16, 2024, Petitioner filed the instant petition for writ of habeas corpus, 2 asserting the following claims for relief: (1) not providing the DHO report within the time frames 3 set forth in Program Statement 5270.09, Chapter 5, 541.8; (2) the Western Regional Office failed 4 to enter Petitioner’s BP–10 into SENTRY the day it was received; (3) the Western Regional 5 Office violated due process under Program Statement 1330.18; and (4) the Central Office 6 violated due process when it rejected Petitioner’s appeal because he did not provide a copy of the 7 DHO report. (ECF No. 1 at 6–7.) Respondent filed a motion to dismiss the petition for 8 nonexhaustion, but also argued that the petition should be denied on the merits. (ECF No. 12.) 9 To date, Petitioner has not filed an opposition or statement of nonopposition to the motion to 10 dismiss, and the time for doing so has passed. 11 On August 16, 2024, the Court ordered expansion of the record and directed Respondent 12 to file additional materials. (ECF No. 14.) On September 30, 2024, Respondent filed additional 13 materials. (ECF No. 15.) To date, Petitioner has not filed any response to the additional 14 materials, and the time for doing so has passed. 15 II. 16 DISCUSSION 17 A. Exhaustion 18 “As a prudential matter, courts require that habeas petitioners exhaust all available 19 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 20 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). However, because it is not a jurisdictional 21 prerequisite, exhaustion can be waived, id., and “is not required if: (1) administrative remedies 22 would be futile; (2) the actions of the agency clearly and unambiguously violate statutory or 23 constitutional rights; or (3) the administrative procedure is clearly shown to be inadequate to 24 prevent irreparable injury,” Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir. 1991). 25 There is a two-level review process for appeals of DHO disciplinary proceedings. DHO 26 appeals are submitted initially to the Regional Director using a BP–10 form. 28 C.F.R. 27 §§ 542.14(d)(2), 542.15(a). “The inmate may appeal an adverse decision by the Regional 1 form. The BP–11 must be submitted to the Central Office within 30 calendar days from the date 2 of the Regional Director’s decision.” Nunez v. Duncan, 591 F.3d 1217, 1219–20 (9th Cir. 2010) 3 (citing 28 C.F.R. § 542.15(a)). 4 The record before the Court reflects that Petitioner filed an appeal at the Regional Level, 5 Regional Administrative Remedy Appeal 1165506-R1, that was denied on August 17, 2023. 6 (ECF No. 1 at 17; App. 6.) Petitioner filed an appeal to the Central Office, Central Office 7 Remedy Appeal 1165506-A1, that was denied on September 14, 2023, because Petitioner did not 8 provide a copy of his regional office administrative remedy appeal (BP–10) form or a copy of the 9 (BP–10) response from the Regional Director. The denial indicated that Petitioner could 10 resubmit his appeal in proper form within fifteen days of the date of the rejection notice. (ECF 11 No. 1 at 25.) 12 Petitioner filed another appeal to the Central Office, Central Office Remedy Appeal 13 1165506-A2, that was denied on December 4, 2023, because the appeal of the rejection was 14 untimely, Petitioner did not provide staff verification stating that the untimeliness was not 15 Petitioner’s fault, and Petitioner did not provide a copy of the DHO report he wished to appeal or 16 identify the charges and date of the DHO action. (ECF No. 1 at 28.) 17 Respondent argues that the petition should be dismissed for failure to exhaust 18 administrative remedies. (ECF No. 12 at 4–5.) Generally, dismissal for failure to exhaust 19 administrative remedies is appropriate where a petitioner “attempted to appeal the BOP’s 20 decisions, [and] the record shows that the BOP rejected his appeals because they did not meet 21 BOP requirements.” Reynolds v. McGrew, 594 F. App’x 377, 378 (9th Cir. 2015). However, in 22 Ground One of the petition, Petitioner claims that he never received a copy of the DHO report, 23 which would excuse Petitioner’s failure to exhaust. As discussed in more detail in section II(D), 24 infra, it is unclear whether Petitioner received a copy of the DHO report and an evidentiary 25 hearing is required to make that determination. 26 B. Due Process Protections in Prison Disciplinary Proceedings 27 “The Supreme Court established in Wolff v. McDonnell that there are procedural due 1 prior to being deprived of a protected liberty interest.” Melnik v. Dzurenda, 14 F.4th 981, 985 2 (9th Cir. 2021). However, “[p]rison disciplinary proceedings are not part of a criminal 3 prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” 4 Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The minimum procedural requirements that 5 must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the 6 prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his 7 defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for 8 taking disciplinary action; (4) the right of the prisoner to call witnesses and present documentary 9 evidence in his defense, when permitting him to do so would not be unduly hazardous to 10 institutional safety or correctional goals; and (5) assistance to the prisoner where the prisoner is 11 illiterate or the issues presented are legally complex. Id. at 563–71. In addition, “some evidence” 12 must support the decision of the hearing officer, Superintendent v. Hill, 472 U.S. 445, 455 13 (1985), and the evidence must have some indicia of reliability, Cato v. Rushen, 824 F.2d 703, 14 705 (9th Cir. 1987). 15 C. Claims Regarding Administrative Remedy Process 16 In Grounds Two through Four, Petitioner asserts various deficiencies regarding how his 17 administrative remedies were processed by the Western Regional Office and the Central Office. 18 (ECF No. 1 at 6–7.) However, a prisoner’s “right to due process [i]s violated only if he was not 19 provided with process sufficient to meet the Wolff standard” and does not “require[ ] the prison 20 to comply with its own, more generous procedures.” Walker v. Sumner, 14 F.3d 1415, 1420 (9th 21 Cir. 1994), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Further, 22 “inmates lack a separate constitutional entitlement to a specific prison grievance procedure.” 23 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 24 (9th Cir. 1988)). Accordingly, the Court finds that Petitioner is not entitled to habeas relief on 25 Grounds Two through Four. 26 D. Failure to Provide Petitioner with a Copy of the DHO Report 27 In Ground One of the petition, Petitioner asserts that he was not “provid[ed] a DHO 1 has “not received the DHO [report] to this date.” (ECF No. 1 at 6.) Although due process does 2 not “require[ ] the prison to comply with its own, more generous procedures,” it must comply 3 with the Wolff standard, Walker, 14 F.3d at 1420, and the Court construes Ground One as raising 4 a due process claim for the failure to provide Petitioner with a copy of the DHO report. See 5 United States v. Qazi, 975 F.3d 989, 992–93 (9th Cir. 2020) (“It is an entrenched principle that 6 pro se filings however inartfully pleaded are held to less stringent standards than formal 7 pleadings drafted by lawyers. We are specifically directed to construe pro se pleadings liberally. 8 This duty applies equally to pro se motions and with special force to filings from pro se 9 inmates.” (internal quotation marks and citations omitted)). 10 The DHO report itself has a notation that the report was emailed/delivered to Petitioner 11 on April 17, 2023 at 11:30 a.m. (App. 21.) In one of his administrative remedy requests, 12 Petitioner notes that the “DHO files his responses electronically as he is not present at Mendota 13 FCI. It is the staff at Mendota that is responsible for ensuring inmates are delivered their DHO 14 reports. Whomever this staff member is, is not doing their job. Many individuals, including 15 myself, have not and are not being delivered their DHO reports within 15 working days or if at 16 all.” (ECF No. 1 at 27.) 17 In its denial of relief, the Western Regional Office stated that “to ensure your due process 18 rights are satisfied, we have taken the liberty to provide you with a copy of your DHO Report.” 19 (EC No. 1 at 17.) However, Petitioner alleges that the DHO report in fact was not included in the 20 Western Regional Office’s response and he had his “Counselor witness the report was not 21 included when he gave me the denial paper’s [sic].” (Id. at 10, 13.) Petitioner contends that he 22 has not received the DHO report as of the time he filed the instant habeas petition. (Id. at 6, 13.) 23 Respondent has submitted a copy of an email, dated April 17, 2023, sent by DHO Tyson 24 that states that the incident reports for hearings conducted on April 5, 2023 are attached, contains 25 a notation to “Please ensure the inmate is given a copy[,]” and shows an attachment entitled 26 “3745484-CLARK-DHO Rpt-115.pdf.” (ECF No. 15-1 at 2.) Respondent has also submitted the 27 declaration of Matthew Haste, a Unit Manager at FCI Mendota, which states that he received the 1 the requested report to” Petitioner because the email was sent over a year ago, “at this current 2 juncture, if [Haste] were to receive similar requests for assistance from the DHO, [he] would 3 print out the DHO report and deliver a copy of the report to the appropriate receiving party or 4 assign another staff member to hand deliver the report to the appropriate receiving party.” (ECF 5 No. 15-1 at 4.) 6 “Where documentary evidence provides a sufficient basis to decide a petition, the court is 7 within its discretion to deny [an evidentiary] hearing.” Runningeagle v. Ryan, 825 F.3d 970, 990 8 (9th Cir. 2016) (citing Phillips v. Ornoski, 673 F.3d 1168, 1179 (9th Cir. 2012)). However, 9 “[w]hen the issue is one of credibility, resolution on the basis of affidavits can rarely be 10 conclusive[.]” Blackledge v. Allison, 431 U.S. 63, 82 n.25 (1977) (quotation marks and citations 11 omitted). “In deciding whether to grant an evidentiary hearing, a federal court must consider 12 whether such a hearing could enable an applicant to prove the petition’s factual allegations, 13 which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 14 U.S. 465, 474, (2007). 15 Petitioner alleges he never received a copy of the DHO report and has provided copies of 16 multiple administrative remedy requests in which Petitioner states that he never received a copy 17 of the DHO report. (ECF No. 1 at 14–16, 18, 27.) Although Respondent submitted a declaration 18 from the Unit Manager who received an emailed copy of Petitioner’s DHO report from the 19 hearing officer, the Unit Manager did not have any recollection of giving the DHO report to 20 Petitioner. Accordingly, the Court finds that the documentary evidence does not provide a 21 sufficient basis to decide the issue and that an evidentiary hearing, in which the Court can assess 22 credibility, could enable Petitioner to prove that he never received a copy of the DHO report, 23 which would entitle Petitioner to federal habeas relief. 24 III. 25 RECOMMENDATION & ORDER 26 Based on the foregoing, the Court HEREBY RECOMMENDS that: 27 1. An evidentiary hearing be held on Ground One (failure to provide Petitioner a copy of the 1 2. Grounds Two through Four of the petition be DENIED. 2 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 3 | Judge. 4 This Findings and Recommendation is submitted to the assigned United States District 5 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 6 | Rules of Practice for the United States District Court, Eastern District of California. Within 7 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 8 | written objections with the Court, limited to fifteen (15) pages in length, including any 9 | exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 10 | Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days 11 | after service of the objections. The assigned United States District Court Judge will then review 12 | the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that 13 | failure to file objections within the specified time may waive the right to appeal the District 14 | Court’s order. Wilkerson _v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter _v. 15 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 7 IT IS SO ORDERED. FA. ee 1g | Dated: _ November 21, 2024

STANLEY A. BOONE

19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28