Opinion
Case No. CIV-16-1430-M
03-08-2017
DAVID PETE DOMINGUEZ, Petitioner, v. BRYAN ANTONELLI, Warden, et al., Respondents.
REPORT AND RECOMMENDATION
Petitioner, David Pete Dominguez, a federal prisoner appearing pro se, filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging the execution of his federal sentence. [Doc. No. 1]. United States District Judge Vicki Miles-LaGrange referred this matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Respondents have filed a Motion to Dismiss Petition for Habeas Corpus with Brief in Support. [Doc. No. 14]. Petitioner has filed a Response [Doc. No. 15] and the matter is now at issue. For the reasons set forth below, it is recommended that Respondents' Motion be granted.
A duplicate copy of Petitioner's Response has also been filed in this case. See Doc. No. 16.
I. Factual Background / Procedural History
Petitioner is in the custody of the United States Bureau of Prisons (BOP) serving a 120-month term of imprisonment as a result of his conviction for conspiracy to possess with intent to distribute more than 500 grams of methamphetamine. See Petition, ¶4(a); see also United States v. Dominguez, Case No. 2:12-cr-1002 (S.D. Tex.) (Jdt. [Doc. No. 237] June 20, 2013), attached to Defendant's Motion [Doc. No. 14-1]. Petitioner's sentence requires him to "participate in a comprehensive drug treatment program while incarcerated." Id.
On December 16, 2013, the BOP requested that Petitioner provide a urine sample for "drug-abuse testing." See Incident Report [Doc. No. 1-3]. Petitioner was given two hours to provide a urine sample and consumed eight ounces of water during the two-hour period. Id. However, Petitioner was unable to provide the sample within the allotted two hours. Id. "Health Services was contacted to verify that [Petitioner] did not have any medical condition that would prevent him from urinating in [two] hours" and confirmed no medical condition existed that would prevent Petitioner from providing the sample. Id.
In response to the Incident Report, Petitioner was charged with Offense Code 110, Refusing to Provide a Urine Sample, and a disciplinary hearing was conducted on January 6, 2016. See Discipline Hearing Officer Report [Doc. No. 1-4]. Petitioner received advance written notice of the charges, was advised of his rights prior to the hearing and a staff representative, Dr. Brown, appeared on Petitioner's behalf at the hearing. Id. Petitioner did not request any witnesses to appear on his behalf. Id. Petitioner claimed that he did not "do drugs" but he "just couldn't go." Id.
The Disciplinary Hearing Officer found Petitioner guilty of the charged offense. Id. As sanctions, Petitioner was disallowed forty-one days of good-conduct time, placed in disciplinary segregation for twenty days and lost phone/visit privileges for a period of 180 days. Id.
Petitioner then appealed the disciplinary conviction. See Regional Administrative Remedy Appeal [Doc. No. 1-2]. Petitioner claimed that he was not allowed adequate time to provide a urine sample. He further claimed he consumed eight ounces of water "and still was not able to provide urine." Id. His appeal was denied on March 21, 2016. See Regional Director Response [Doc. No. 1-1]. The Regional Director concluded that sufficient evidence supported the decision of the Disciplinary Hearing Officer. See id. at p. 2.
II. Petitioner's Grounds for Habeas Relief
Petitioner brings a single ground for habeas relief. Petitioner claims that he "did not 'REFUSE' to provide a urine sample, nor was there any evidence introduced at the hearing that he refused to provide said sample." See Petition at p. 10, ¶ 13. Accordingly, he claims a violation of his due process rights pursuant to Wolff v. McDonnell, 418 U.S. 539 (1974). As relief, Petitioner seeks an expungement of the disciplinary conviction and restoration of the forty-one days good-conduct time that was revoked as a result of the disciplinary conviction.
In this action, Petitioner does not seek relief on grounds that he was not given sufficient time to provide a urine sample, as he did in his administrative appeal.
Respondents affirmatively state that Petitioner has exhausted administrative remedies. See Respondents' Motion at p. 5. Respondents seek dismissal of the Petition on grounds Petitioner has failed to demonstrate a violation of his due process rights. Respondents contend "some evidence" supports the disciplinary conviction. In response, Petitioner reiterates his claim that he did not "refuse" to provide a urine sample, as charged, but simply could not "go." Therefore, he contends some evidence does not support the conviction.
"The exhaustion of administrative remedies is a prerequisite for § 2241 habeas relief, although . . . the statute itself does not expressly contain such a requirement." Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). However, "the requirement to exhaust administrative remedies is not jurisdictional." Brennan v. United States, 646 F. App'x 662, 665 n. 6 (10th Cir. 2016) (citations omitted). It does not appear to the Court that Petitioner exhausted the claim upon which he seeks habeas relief - i.e., that he did not refuse to provide a urine sample but simply was unable to provide a sample and, therefore, did not commit the charged offense. Instead, this Court's review of the administrative grievance record demonstrates the only claim Petitioner raised before the BOP was his claim that he was not given sufficient time to provide a urine sample. Thus, dismissal appears proper on grounds Petitioner failed to exhaust administrative remedies. However, to the extent Respondents have waived the exhaustion requirement, the Court has addressed the merits of Petitioner's claim.
III. Governing Standard
Respondents move for dismissal under Fed.R.Civ.P. 12(b)(6). See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1289-90 (10th Cir. 2001) (dismissing claims arising under 28 U.S.C. § 2241 pursuant to Fed. R. Civ. P. 12(b)(6)). Under Rule 12(b)(6), dismissal for failure to state a valid claim is proper only if the petitioner has failed to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The well-pleaded factual allegations in the petition must be accepted as true and construed in the light most favorable to the petitioner. See Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990). In addressing the sufficiency of the allegations, the court may consider the petition and any matters attached thereto. See, e.g., Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) ("[I]n deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may look to the [petition] itself and to any documents attached as exhibits to the [petition]." (citations omitted)).
Petitioner appears pro se and, therefore, the Court must liberally construe his Petition. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the liberal construction "does not relieve the [petitioner] of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-1174 (10th Cir. 1997) (courts "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf").
IV. Analysis
A habeas petition brought pursuant to § 2241 is the proper means by which Petitioner may seek to invalidate his disciplinary conviction in order to have it expunged from his record. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997) (recognizing that "a § 2241 attack on the execution of a sentence may challenge some matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters" because such challenges affect "the fact or duration of the petitioner's custody"); see also Buhl v. Hood, 81 F. App'x 273, 274 (10th Cir. 2003) (petitioner who "sought to invalidate his disciplinary conviction in order to have it expunged from his record . . . correctly filed his action as a § 2241 habeas petition") (citing cases)).
"It is well settled that an inmate's liberty interest in his earned good time credits cannot be denied without the minimal safeguards afforded by the Due Process Clause of the Fourteenth Amendment." Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007) (internal quotation marks omitted). But the "full panoply of rights" attendant to criminal proceedings does not apply in prison disciplinary proceedings because they are not part of a defendant's criminal prosecution. Wolff, 418 U.S. at 556. Instead, the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Howard, 487 F.3d at 812 (internal quotation marks omitted) (reciting the "Wolff factors"). If the inmate receives these protections, the reviewing court must only be able to ascertain "some evidence" in the proceedings below in order to uphold the disciplinary action. Id. The "some evidence" standard does not require the court to examine the entire record, independently assess witness credibility or weigh the evidence. Id. Instead, the court asks only whether any evidence in the record could support the decision of the disciplinary officer. Id. Thus, the decision can be upheld even if the evidence supporting the decision is "meager." Id.
In this case, some evidence supports the Disciplinary Hearing Officer's decision to find Petitioner guilty of refusing to provide a urine sample. Although Petitioner argues he did not refuse to provide the sample but just "couldn't go" the record demonstrates otherwise. Petitioner was provided eight ounces of water and given a two-hour period to provide a sample. Moreover, prison officials confirmed that no medical condition prevented Petitioner from providing a sample.
Under applicable BOP regulations, a failure to provide a urine sample within a two-hour period is deemed to be a refusal unless the prisoner rebuts the presumption during the disciplinary proceedings. See 28 C.F.R. § 550.31(a) ("An inmate is presumed to be unwilling if the inmate fails to provide a urine sample within the allotted time period. An inmate may rebut the presumption during the disciplinary process."). A review of the record establishes that Petitioner failed to rebut this presumption during the disciplinary process. And Petitioner's attempt to draw a distinction between "failing" and "refusing" to provide a urine sample is an argument that has been rejected by other courts in light of this rebuttable presumption. See, e.g., Garcia-Cortez v. Sanders, No. SACV 11-1554-CJC, 2013 WL 2417973 at *11 (C.D. Cal. May 31, 2013) (unpublished op.); see also Resendez v. Washington-Adduci, No. 7:15-cv-01340-VEH-JEO, 2017 WL 693334 at *3 (N.D. Ala. Jan. 26, 2017) (unpublished op.) (rejecting petitioner's claim that she had no "malicious intent" in failing to produce a sufficient urine sample and finding that "intent is not the relevant consideration" rather, the only consideration is whether "some evidence" supports the disciplinary conviction).
Petitioner does not allege any other violation of his due process rights. And the record demonstrates that he received advance written notice of the charges, the opportunity to call witnesses or present documentary evidence and a written statement as to the evidence relied on and the reasons for the disciplinary decision. For these reasons, the disciplinary conviction must be upheld and Petitioner is not entitled to habeas relief.
In his Response, Petitioner contends he was not provided advance written notice of the charges because the notice stated he "refused" to provide a urine sample and not that he "failed" to provide a urine sample. See Petitioner's Response at pp. 3-5. For the reasons previously set forth, Petitioner's attempts to distinguish a "refusal" to provide a urine sample from his alleged inability (or failure) to provide the sample are unavailing. The record demonstrates Petitioner received advanced written notice of the charged offense that comports with due process. --------
RECOMMENDATION
Respondents' Motion to Dismiss Petition for Habeas Corpus with Brief in Support [Doc. No. 14] should be granted.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by March 29, 2017. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. Pro. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 8th day of March, 2017.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE