Michael Strausbaugh v. J. Shartle

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 2020
• Docket: 19-16780
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL STRAUSBAUGH, No. 19-16780

Petitioner-Appellant, D.C. No. 4:17-cv-00333-JAS

v. MEMORANDUM* J. T. SHARTLE, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona James A. Soto, District Judge, Presiding

Submitted February 4, 2020**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Federal prisoner Michael Strausbaugh appeals pro se from the denial of his

28 U.S.C. § 2241 habeas corpus petition, in which he challenged the loss of 27

days of good-conduct time following the Bureau of Prisons (“BOP”)’s finding that

he attempted to “[u]se [] the mail for abuses other than criminal activity which

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). circumvent mail monitoring procedures” in violation of BOP Prohibited Act Code

296A, 28 C.F.R. § 541.3 Table 1, 296. We have jurisdiction under 28 U.S.C.

§ 1291 and, reviewing de novo, see Lane v. Swain, 910 F.3d 1293, 1295 (9th Cir.

2018), cert. denied, 140 S. Ct. 60 (2019), we affirm.

Strausbaugh first contends that the prison disciplinary decision violates his

First Amendment rights. We disagree, because the BOP’s prohibition against

abusing the prison mail system to circumvent mail monitoring procedures satisfies

the test outlined by the Supreme Court. See Procunier v. Martinez, 416 U.S. 396,

413 (1974) (the regulation must “further[] one or more of the substantial

governmental interests of security, order, and rehabilitation” and “be no greater

than is necessary or essential to the protection” of those interests), overruled on

other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989); see also Bonin v.

Calderon, 59 F.3d 815, 823 (9th Cir. 1995) (“We may affirm on any ground

supported by the record, even if it differs from the rationale of the district court.”).

Strausbaugh also contends that the BOP’s decision was not supported by the

greater weight of the evidence, as required by 28 C.F.R. § 541.8(f). Whether the

applicable standard is the greater weight of the evidence or merely “some

evidence,” Superintendent v. Hill, 472 U.S. 445, 455 (1985), we conclude that the

record supports the BOP’s decision. The evidence, including Strausbaugh’s

admission that he had mailed a copy of another inmate’s administrative appeal to

2 19-16780 the inmate’s wife, and the reporting officer’s assertion that the inmate was under

mailing restrictions in relation to his wife, supported a finding that Strausbaugh’s

actions were an attempt to use the mail system to circumvent mail monitoring.

AFFIRMED.

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