1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN ROMAN, No. 1:23-cv-01411-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 B.M. TRATE, TO GRANT RESPONDENT’S MOTION TO DISMISS [DOC. 11] 15 Respondent. [21-DAY OBJECTION DEADLINE] 16
17 18 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2241. He filed the instant petition on September 20 27, 2023. Petitioner takes issue with a disciplinary proceeding in which he was found guilty of 21 attempted introduction of drugs/alcohol. On December 12, 2023, Respondent filed a motion to 22 dismiss the petition. (Doc. 11.) Petitioner did not file an opposition. The Court will recommend 23 the motion be GRANTED. 24 DISCUSSION 25 A. Rules Violation Report1 26 On October 4, 2022, during a screening of inmate Deandre Harris, a letter containing 27 1 The factual background is derived from the Rules Violation Report issued on November 4, 2022. (Doc. 28 11-1 at 15.) 1 instructions on introducing drugs into USP Atwater was discovered in his personal property bag. 2 The letter contained a phone number at the beginning of the instructions. A search conducted by 3 prison authorities revealed that the phone number was solely contacted by Petitioner. The letter 4 specifically instructs a person by the alias of “L” to fill out visiting forms and send it back to USP 5 Atwater in a manilla envelope. Petitioner instructs L to soak the manilla envelope in some type 6 of synthetic narcotics before sending it to the institution and to send it certified so it can be 7 tracked. Petitioner informs L that by doing it this way is the only way to bypass the mailroom 8 screening process, so the envelope soaked with narcotics would not be detected. 9 A review of Petitioner’s recorded phone calls was conducted. During a phone call on 10 September 10, 2022, at 8:05 p.m., to phone number (323) 395-8925, Petitioner makes several 11 references to contacting a person by the alias L to the male recipient during the conversation. 12 Additionally, Petitioner instructs the male recipient on the phone call to make sure to send the 13 visiting forms into the institution priority so it can be tracked. This statement during the phone 14 call was consistent with the instructions in the outgoing letter Harris had possessed. During 15 another phone call made by Petitioner on September 12, 2022, at 7:55 p.m., to phone number 16 (323) 395-8925, Petitioner makes more references to L and having the visiting forms sent into the 17 institution in a specific way. 18 A review of Petitioner's electronic mail (email) communications reveals that on 19 September 12, 2022, at 3:51 p.m., an incoming email to Petitioner from email address 20 hopsing646+leafbegrr686@gmall.com stated, "D money, Real quick my boy DO NOT 21 RESPOND TO THAT DUDE. DONT KNOW WHY HE IS TRYING TO REACH OUT. Just so 22 you know about that one okay. Those weren't my words. Much love my boy ... L." This email 23 indicated Petitioner was in contact with the outside person L whom Petitioner makes references to 24 in the outgoing letter that contained the instructions to introduce narcotics. 25 On November 4, 2022, Petitioner was charged with attempted introduction of 26 drugs/alcohol in violation of Prohibited Act 111A, and attempted criminal mail abuse in violation 27 of Prohibited Act 196A. (Doc. 11-1 at 13.) On December 7, 2022, a disciplinary hearing was 28 conducted. Petitioner waived his right to a staff representative, opted not to call witnesses, and 1 offered no documentary evidence. (Doc. 11-1 at 14.) The hearing officer (“DHO”) found 2 Petitioner guilty of committing the prohibited acts. (Doc. 11-1 at 15.) The DHO relied on the 3 investigating officer’s report, an SIS investigative report, a copy of the drug introduction 4 instructions, and TRU system documentation. (Doc. 11-1 at 15.) The DHO also relied on the 5 statement made by Petitioner regarding the identity of “L.” Petitioner stated, “I know who ‘L’ 6 is.” (Doc. 11-1 at 16.) Petitioner was sanctioned with, inter alia, 41 days loss of good conduct 7 time credits. (Doc. 11-1 at 17.) 8 Petitioner administratively appealed. In his appeal to the BOP Regional Director, the 9 violation of Code 196A (attempted mail abuse) was expunged. As to the attempted drug 10 introduction violation, Petitioner’s administrative appeals were fully exhausted. 11 B. Due Process Rights in Prison Disciplinary Proceedings 12 Prisoners cannot be entirely deprived of their constitutional rights, but their rights may be 13 diminished by the needs and objectives of the institutional environment. Wolff v. McDonnell, 14 418 U.S. 539, 555 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, 15 so a prisoner is not afforded the full panoply of rights in such proceedings. Id. at 556. Thus, a 16 prisoner’s due process rights are moderated by the “legitimate institutional needs” of a prison. 17 Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (citing Superintendent, Mass. Corr. Inst. 18 v. Hill, 472 U.S. 445, 454-455 (1984)). 19 When a prison disciplinary proceeding may result in the loss of good time credits, due 20 process requires that the prisoner receive: (1) advance written notice of at least 24 hours of the 21 disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional 22 goals, to call witnesses and present documentary evidence in his defense; and (3) a written 23 statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. 24 Hill, 472 U.S. at 454; Wolff, 418 U.S. at 563-567. In addition, due process requires that the 25 decision be supported by “some evidence.” Hill, 472 U.S. at 455 (citing United States ex rel. 26 Vatauer v. Commissioner of Immigration, 273 U.S. 103, 106 (1927)). 27 Petitioner does not claim that his due process protections were violated, and a review of 28 the exhibits reveals that all due process requirements were met. He does not claim that he was 1 not provided with more than 24 hours’ notice of the hearing; he does not claim that witnesses or 2 documentary evidence were denied; and he does not claim that he was not provided with a written 3 copy of the disciplinary hearing determination. According to the exhibits, it appears these 4 procedural due process requirements were satisfied. 5 Finally, Petitioner does not dispute that there was at least “some evidence” to support the 6 decision. See Hill, 472 U.S. at 455 (“the requirements of due process are satisfied if some 7 evidence supports the decision by the prison disciplinary board to revoke good time credits.”) A 8 review of the Rules Violation Report reveals there was abundant evidence to support the guilty 9 finding. The DHO relied on Petitioner’s recorded communications, including his instructions that 10 a narcotics-soaked item was to be secreted into the BOP facility. The DHO also relied on his 11 admitted association with “L,” the reporting officer’s review of recorded phone calls, the SIS 12 investigation report, and the TRU System identity documentation. Petitioner only took issue with 13 the statement in the incident report about “some type of synthetic narcotics,” which Petitioner 14 states could have been anything.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN ROMAN, No. 1:23-cv-01411-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 B.M. TRATE, TO GRANT RESPONDENT’S MOTION TO DISMISS [DOC. 11] 15 Respondent. [21-DAY OBJECTION DEADLINE] 16
17 18 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2241. He filed the instant petition on September 20 27, 2023. Petitioner takes issue with a disciplinary proceeding in which he was found guilty of 21 attempted introduction of drugs/alcohol. On December 12, 2023, Respondent filed a motion to 22 dismiss the petition. (Doc. 11.) Petitioner did not file an opposition. The Court will recommend 23 the motion be GRANTED. 24 DISCUSSION 25 A. Rules Violation Report1 26 On October 4, 2022, during a screening of inmate Deandre Harris, a letter containing 27 1 The factual background is derived from the Rules Violation Report issued on November 4, 2022. (Doc. 28 11-1 at 15.) 1 instructions on introducing drugs into USP Atwater was discovered in his personal property bag. 2 The letter contained a phone number at the beginning of the instructions. A search conducted by 3 prison authorities revealed that the phone number was solely contacted by Petitioner. The letter 4 specifically instructs a person by the alias of “L” to fill out visiting forms and send it back to USP 5 Atwater in a manilla envelope. Petitioner instructs L to soak the manilla envelope in some type 6 of synthetic narcotics before sending it to the institution and to send it certified so it can be 7 tracked. Petitioner informs L that by doing it this way is the only way to bypass the mailroom 8 screening process, so the envelope soaked with narcotics would not be detected. 9 A review of Petitioner’s recorded phone calls was conducted. During a phone call on 10 September 10, 2022, at 8:05 p.m., to phone number (323) 395-8925, Petitioner makes several 11 references to contacting a person by the alias L to the male recipient during the conversation. 12 Additionally, Petitioner instructs the male recipient on the phone call to make sure to send the 13 visiting forms into the institution priority so it can be tracked. This statement during the phone 14 call was consistent with the instructions in the outgoing letter Harris had possessed. During 15 another phone call made by Petitioner on September 12, 2022, at 7:55 p.m., to phone number 16 (323) 395-8925, Petitioner makes more references to L and having the visiting forms sent into the 17 institution in a specific way. 18 A review of Petitioner's electronic mail (email) communications reveals that on 19 September 12, 2022, at 3:51 p.m., an incoming email to Petitioner from email address 20 hopsing646+leafbegrr686@gmall.com stated, "D money, Real quick my boy DO NOT 21 RESPOND TO THAT DUDE. DONT KNOW WHY HE IS TRYING TO REACH OUT. Just so 22 you know about that one okay. Those weren't my words. Much love my boy ... L." This email 23 indicated Petitioner was in contact with the outside person L whom Petitioner makes references to 24 in the outgoing letter that contained the instructions to introduce narcotics. 25 On November 4, 2022, Petitioner was charged with attempted introduction of 26 drugs/alcohol in violation of Prohibited Act 111A, and attempted criminal mail abuse in violation 27 of Prohibited Act 196A. (Doc. 11-1 at 13.) On December 7, 2022, a disciplinary hearing was 28 conducted. Petitioner waived his right to a staff representative, opted not to call witnesses, and 1 offered no documentary evidence. (Doc. 11-1 at 14.) The hearing officer (“DHO”) found 2 Petitioner guilty of committing the prohibited acts. (Doc. 11-1 at 15.) The DHO relied on the 3 investigating officer’s report, an SIS investigative report, a copy of the drug introduction 4 instructions, and TRU system documentation. (Doc. 11-1 at 15.) The DHO also relied on the 5 statement made by Petitioner regarding the identity of “L.” Petitioner stated, “I know who ‘L’ 6 is.” (Doc. 11-1 at 16.) Petitioner was sanctioned with, inter alia, 41 days loss of good conduct 7 time credits. (Doc. 11-1 at 17.) 8 Petitioner administratively appealed. In his appeal to the BOP Regional Director, the 9 violation of Code 196A (attempted mail abuse) was expunged. As to the attempted drug 10 introduction violation, Petitioner’s administrative appeals were fully exhausted. 11 B. Due Process Rights in Prison Disciplinary Proceedings 12 Prisoners cannot be entirely deprived of their constitutional rights, but their rights may be 13 diminished by the needs and objectives of the institutional environment. Wolff v. McDonnell, 14 418 U.S. 539, 555 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, 15 so a prisoner is not afforded the full panoply of rights in such proceedings. Id. at 556. Thus, a 16 prisoner’s due process rights are moderated by the “legitimate institutional needs” of a prison. 17 Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (citing Superintendent, Mass. Corr. Inst. 18 v. Hill, 472 U.S. 445, 454-455 (1984)). 19 When a prison disciplinary proceeding may result in the loss of good time credits, due 20 process requires that the prisoner receive: (1) advance written notice of at least 24 hours of the 21 disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional 22 goals, to call witnesses and present documentary evidence in his defense; and (3) a written 23 statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. 24 Hill, 472 U.S. at 454; Wolff, 418 U.S. at 563-567. In addition, due process requires that the 25 decision be supported by “some evidence.” Hill, 472 U.S. at 455 (citing United States ex rel. 26 Vatauer v. Commissioner of Immigration, 273 U.S. 103, 106 (1927)). 27 Petitioner does not claim that his due process protections were violated, and a review of 28 the exhibits reveals that all due process requirements were met. He does not claim that he was 1 not provided with more than 24 hours’ notice of the hearing; he does not claim that witnesses or 2 documentary evidence were denied; and he does not claim that he was not provided with a written 3 copy of the disciplinary hearing determination. According to the exhibits, it appears these 4 procedural due process requirements were satisfied. 5 Finally, Petitioner does not dispute that there was at least “some evidence” to support the 6 decision. See Hill, 472 U.S. at 455 (“the requirements of due process are satisfied if some 7 evidence supports the decision by the prison disciplinary board to revoke good time credits.”) A 8 review of the Rules Violation Report reveals there was abundant evidence to support the guilty 9 finding. The DHO relied on Petitioner’s recorded communications, including his instructions that 10 a narcotics-soaked item was to be secreted into the BOP facility. The DHO also relied on his 11 admitted association with “L,” the reporting officer’s review of recorded phone calls, the SIS 12 investigation report, and the TRU System identity documentation. Petitioner only took issue with 13 the statement in the incident report about “some type of synthetic narcotics,” which Petitioner 14 states could have been anything. The DHO considered the statement but found it not credible 15 given the evidence. Based on the foregoing, at least some evidence supported the guilty finding. 16 Hill, 472 U.S. at 455. Therefore, all of Petitioner’s procedural and substantive due process rights 17 were honored. 18 Petitioner contends his fundamental rights were violated because the charge was 19 unconstitutionally vague. The claim was presented on administrative appeal and rejected. A 20 regulation, such as code 111A, is not void for vagueness unless “it fails to give adequate notice to 21 people of ordinary intelligence concerning the conduct it proscribes" or it otherwise invites 22 arbitrary and discriminatory enforcement. United States v. Doremus, 888 F.2d 630, 634 (9th Cir. 23 1989). Petitioner claims the charge failed to provide adequate notice. Code 111A prohibits the 24 ”[i]ntroduction or making of any narcotics, marijuana, drugs, alcohol, intoxicants, or related 25 paraphernalia, not prescribed for the individual by the medical staff.” 28 C.F.R. § 541.3. The 26 Notice of Discipline Hearing specifically informed Petitioner that he was being charged with 27 “attempted introduction of narcotics” in violation of Code 111A. (Doc. 11-1 at 29.) The charge 28 noted Petitioner’s instructions that the forms be soaked in a narcotics substance and 1 surreptitiously mailed to avoid detection. (Doc. 11-1 at 15.) 2 Petitioner was fully and fairly informed about the specific facts and circumstances giving 3 rise to the disciplinary charge against him, and the evidence on which the charge was based. 4 There was no vagueness as to Code 111A. See Brown v. Entzel, 2019 WL 3646947, at *3 5 (N.D.W. Va. Aug. 6, 2019) (upholding violation of Code 111A when inmate attempted to 6 introduce a male enhancement pill by letter despite the letter not specifically mentioning a 7 narcotic drug); Morrison v. Terrell, 2009 WL 2003332, at *5 (D. Minn. July 6, 2009) (finding 8 inmate was provided proper notice that mailing a letter directing a visitor to bring Viagra to him 9 in the visiting room violated Code 111A since Code 111A prohibited the introduction of any . . . 10 drugs . . . not prescribed for the individual by the medical staff) (emphasis in original). 11 For the foregoing reasons, the Court finds that Petitioner’s due process rights were not 12 violated. Wolff, 418 U.S. at 564; Hill, 472 U.S. at 455. Respondent’s motion to dismiss the 13 petition should be granted. 14 ORDER 15 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 16 Judge to the case. 17 RECOMMENDATION 18 For the foregoing reasons, the Court HEREBY RECOMMENDS that Respondent’s 19 motion to dismiss be GRANTED and the habeas corpus petition be DISMISSED. 20 This Findings and Recommendation is submitted to the United States District Court Judge 21 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 22 of the Local Rules of Practice for the United States District Court, Eastern District of California. 23 Within twenty-one (21) days after being served with a copy, any party may file written objections 24 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 25 and Recommendation.” Any reply to objections shall be filed within ten (10) days of the date of 26 filing of objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 27 ///// 28 ///// 1 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 IT IS SO ORDERED. 4
5 Dated: March 1, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6
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