Elk v. Von Blanckensee

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Tyree Yellow Elk, No. CV-20-00300-TUC-JAS (MSA) 10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 Barbara Von Blanckensee, 13 Respondent. [14] 15 Petitioner Tyree Yellow Elk seeks habeas relief under 28 U.S.C. § 2241 . (Doc. 1.) 16 He filed this action while incarcerated at the United States Penitentiary in Tucson, Arizona 17 (“USP Tucson”), but he is currently incarcerated at the United States Penitentiary in Terre 18 Haute, Indiana (“USP Terre Haute”). The petition has been fully briefed. (Doc. 15.) For 19 the following reasons, the Court will recommend that the petition be denied in part and 20 dismissed in part for lack of subject-matter jurisdiction. 21 I. Background 22 A. Petitioner’s Housing Status 23 On February 4, 2020, Petitioner was administratively detained in USP Tucson’s 24 special housing unit (“SHU”) pending an investigation whether he had violated the Federal 25 Bureau of Prison’s (“BOP”) regulations. (Doc. 15-1 at 18.) He was released from the SHU 26 on September 14, 2020, the day on which he was transferred to USP Terre Haute. (Id. 27 at 14.) The record indicates that Petitioner received periodic review of his housing status 28 during his time in the SHU. (Id. at 19–21.) 1 B. Petitioner’s Disciplinary Convictions 2 The prison disciplinary process begins when an inmate is issued an incident report 3 that describes the infraction the inmate is accused of committing. 28 C.F.R. § 541.5 (a). 4 After an incident report is issued, an officer will investigate the incident. Id. § 541.5(b). 5 After the investigation, a Unit Discipline Committee (“UDC”) will review the incident 6 report. Id. § 541.7. If the infraction charged is severe, the UDC will automatically refer the 7 matter to a Discipline Hearing Officer (“DHO”). Id. § 541.7(a)(4). The DHO will hold a 8 hearing on the charge, determine whether the inmate committed the infraction, and, if the 9 inmate is found to have committed the infraction, determine what sanctions to impose. Id. 10 § 541.8(a), (g). After the DHO determines how to resolve the matter, she must prepare a 11 report explaining the reasons for her decision and for any sanctions imposed. Id. § 541.8(h). 12 The inmate is entitled to a copy of the DHO report. Id. 13 In February 2020, Petitioner was charged in an incident report with fighting another 14 person in violation of Prohibited Act Code 201 (IR 3361413). (Doc. 15-2 at 16.) The 15 investigating officer submitted the incident report to the UDC, and, due to the severity of 16 the charge, the UDC referred the matter to a DHO. (Id. at 17.) The DHO held a hearing on 17 February 19, 2020. (Id. at 12.) The record shows that Petitioner waived his right to appear 18 at the hearing, his right to assistance from a staff representative, and his right to call 19 witnesses, and that Petitioner declined to make a statement or present any documentary 20 evidence. (Id. at 13, 17–18, 20–21.) After the hearing, the DHO found that Petitioner had 21 committed the infraction and sanctioned him with disciplinary segregation and the loss of 22 good-conduct time and privileges. (Id. at 13–14.) Petitioner received a copy of the DHO’s 23 report on March 19, 2020. (Id. at 15.) 24 In April 2020, Petitioner was charged in a separate incident report with threatening 25 bodily harm and assaulting another person, in violation of Prohibited Act Codes 203 and 26 224 (IR 3387769). (Id. at 34.) The charges were referred to the UDC and, based on the 27 severity of the charges, referred further to a DHO. (Id. at 35.) The DHO held a hearing on 28 April 22, 2020. (Id. at 30.) The record shows that Petitioner waived his right to assistance 1 from a staff representative and his right to call witnesses, and that Petitioner declined to 2 present any documentary evidence. (Id. at 31, 38.) It also shows that Petitioner admitted to 3 the assault, although he denied threatening anyone. (Id. at 32.) After the hearing, the DHO 4 dismissed the threatening charge but found that Petitioner had committed assault. (Id. 5 at 31–32.) The DHO sanctioned Petitioner with disciplinary segregation and the loss of 6 good-conduct time and privileges. (Id. at 32.) Petitioner received a copy of the DHO’s 7 report on May 19, 2020. (Id. at 33.) 8 C. Petitioner’s Requests for Compassionate Release or Redesignation 9 In his petition, Petitioner asserts that he submitted written requests to Respondent, 10 asking that the BOP file a motion for compassionate release on his behalf pursuant to [11] 18 U.S.C. § 3582 (c)(1)(A)(i), or redesignate him to home confinement pursuant to [12] 18 U.S.C. § 3624 (c)(2) and § 12003(b)(2) of the Coronavirus Aid, Relief, and Economic 13 Security (“CARES”) Act, Pub. L. No. 116-136, 134 Stat. 281, 516 (Mar. 27, 2020). 14 Respondent says that the BOP has no record of these requests. (Doc. 15-1 at 6.) 15 The docket in Petitioner’s underlying criminal case shows that he filed a pro se 16 motion for compassionate release in May 2020, and that the government and the sentencing 17 court overlooked Petitioner’s failure to exhaust and addressed his motion on the merits. 18 (Docs. 61, 66, 71, United States v. Yellow Elk, No. CR-16-50091 (D.S.D.).) The sentencing 19 court issued a detailed ruling, finding Petitioner had not shown that there are extraordinary 20 and compelling reasons warranting compassionate release, and that the sentencing factors 21 weigh against granting early release. (Doc. 71, United States v. Yellow Elk, No. CR-1622 50091 (D.S.D.)); see 18 U.S.C. § 3582 (c)(1)(A)(i) (stating that the sentencing court may 23 reduce a term of imprisonment only for “extraordinary and compelling reasons” and after 24 consideration of the sentencing factors set forth in 18 U.S.C. § 3553 (a)). 25 II. Discussion 26 A. Ground One and Ground Four 27 “If there is no longer a possibility that [a petitioner] can obtain relief for his claim, 28 that claim is moot and must be dismissed for lack of jurisdiction.” Bishop Paiute Tribe v. 1 Inyo County, 863 F.3d 1144, 1155 (9th Cir. 2017) (quoting Foster v. Carson, 347 F.3d 742 , 2 745 (9th Cir. 2003)). In Ground One, Petitioner alleges that he has been confined in the 3 SHU at USP Tucson since February 4, 2020, without having received a housing review. 4 He requests that Respondent be ordered to release him from the SHU. However, Petitioner 5 was released from the SHU on September 14, 2020, the day on which he was transferred 6 to USP Terre Haute. (Doc. 15-1 at 14.) As such, he has already obtained the relief he seeks, 7 and his claim is moot. See Munoz v. Rowland, 104 F.3d 1096 , 1097–98 (9th Cir. 1997) 8 (dismissing the petitioner’s request to be released from the SHU as moot because he had 9 already been released). 10 In Ground Four, Petitioner alleges that Respondent has ignored his request for the 11 BOP to file a motion for compassionate release on his behalf. He urges the Court to order 12 Respondent to properly consider his request. However, in May 2020, Petitioner filed a 13 motion for compassionate release in the sentencing court, informing that court that the BOP 14 was ignoring his request. (Doc. 61, United States v. Yellow Elk, No. CR-16-50091 15 (D.S.D.).) The sentencing court overlooked Petitioner’s failure to exhaust and issued a 16 detailed ruling, finding that he had not met the requirements for early release. (Doc. 71, 17 United States v. Yellow Elk, No. CR-16-50091 (D.S.D.).) Thus, Petitioner has already 18 obtained the relief he seeks, i.e., a ruling by the sentencing court on the merits of his 19 request. His petition for the BOP to make the same request on his behalf is moot. 20 Petitioner also alleges that Respondent has ignored his request to be redesignated to 21 home confinement pursuant to the BOP’s expanded discretion under the CARES Act. For 22 relief, he requests that the BOP be ordered to release him to home confinement. However, 23 federal courts lack “jurisdiction to select the place where [a] sentence will be served. 24 Authority to determine place of confinement resides in the executive branch of government 25 and is delegated to the Bureau of Prisons.” United States v. Ceballos, 671 F.3d 852 , 855 26 (9th Cir. 2011) (per curiam) (quoting United States v. Dragna, 746 F.2d 457, 458 (9th Cir. 27 1984) (per curiam)). Thus, the Court lacks jurisdiction to grant this relief. See United States 28 v. Martin, No. CR-08-00433-001-TUC, 2020 WL 6048328 , at *1 (D. Ariz. Oct. 13, 2020) 1 (stating that courts lack authority to designate defendants to home confinement under the 2 CARES Act); United States v. Johnson, No. CR-17-00183-PHX, 2020 WL 4814347 , at *1 3 n.1 (D. Ariz. Aug. 18, 2020) (same). 4 Finally, Petitioner requests that the BOP be directed to transfer him back to USP 5 Tucson. “When prison officials have legitimate administrative authority, such as the 6 discretion to move inmates from prison to prison or from cell to cell, the Due Process 7 Clause imposes few restrictions on the use of that authority, regardless of any additional 8 motives which are claimed to exist.” Grayson v. Rison, 945 F.2d 1064, 1067 (9th Cir. 9 1991). Here, Petitioner has not demonstrated that the transfer from one high-security prison 10 to another high-security prison “subjected [him] to greater restrictions of his liberty” in 11 violation of due process. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), overruled 12 on other grounds by Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc). Thus, the 13 Court lacks jurisdiction to consider this issue. See id. 14 B. Ground Two and Ground Three 15 In Ground Two and Ground Three, Petitioner alleges that he was denied due process 16 during his disciplinary proceedings for IR 3361413 and IR 3387769. Respondent argues 17 that these claims are without merit. The Court agrees with Respondent. 18 For a prison disciplinary proceeding to satisfy due process, prison officials must (1) 19 provide the inmate with notice of the charge at least 24 hours before the disciplinary 20 hearing, (2) ensure that the inmate “be allowed to call witnesses and present documentary 21 evidence in his defense when permitting him to do so will not be unduly hazardous to 22 institutional safety or correctional goals,” (3) ensure that the inmate has assistance if he is 23 illiterate or if the matter is complex; (4) ensure that the factfinder is “sufficiently impartial,” 24 and (5) ensure that the inmate receives a “written statement by the factfinders as to the 25 evidence relied on and reasons’ for the disciplinary action.” Wolff v. McDonnell, 418 U.S. 26 539 , 563–71 (1974). Additionally, when disciplinary sanctions include the loss of good27 conduct time, due process requires that “the findings of the prison disciplinary board [be] 28 supported by some evidence in the record.” Superintendent v. Hill, 472 U.S. 445 , 454 1 (1985). “Ascertaining whether this standard is satisfied does not require examination of the 2 entire record, independent assessment of the credibility of witnesses, or weighing of the 3 evidence. Instead, the relevant question is whether there is any evidence in the record that 4 could support the conclusion reached by the disciplinary board.” Id. at 455–56. 5 1. IR 3361413 (Fighting) 6 Petitioner alleges that, at his disciplinary hearing, he requested that the DHO 7 consider the written statement of his cellmate. In response, the DHO allegedly made a 8 hostile statement about the cellmate, suggesting that she was going to convict Petitioner 9 for his association with that person. Petitioner also alleges that the DHO refused to view 10 video footage of the incident or call exculpatory witnesses. 11 Petitioner’s allegations are not supported by the record. The record shows that 12 Petitioner signed forms waiving his right to appear at his disciplinary hearing and his right 13 to call witnesses. (Doc. 15-2 at 20–21.) Thus, Petitioner’s allegations about improprieties 14 at his hearing are not credible. Additionally, there is no indication in the record that 15 Petitioner requested review of video evidence. In fact, the record shows that Petitioner 16 declined to present any evidence or make a statement to the investigating officer, the UDC, 17 or the DHO. (Id. at 13, 17–18.) 18 Furthermore, the record shows that Petitioner received due process. The DHO relied 19 on the incident report, in which an officer described witnessing Petitioner and another 20 inmate striking each other with closed fists. (Id. at 16.) This constitutes some evidence that 21 Petitioner engaged in fighting. Next, the record indicates that Petitioner received notice of 22 the charge days before the hearing, that Petitioner waived his right to assistance, and that 23 Petitioner received the DHO’s report. (Id. at 15, 20.) Finally, aside from Petitioner’s 24 allegations concerning the DHO’s conduct, which are belied by the record, there is no 25 indication that the DHO was biased. 26 2. IR 3387769 (Assault) 27 Petitioner alleges that he was presented with an amended incident report on the day 28 of his disciplinary hearing, and thus that he was deprived of adequate notice of the charges. 1 He also alleges that the DHO refused to view video footage of the incident or call witnesses 2 on his behalf, and that the DHO made a remark indicating that her adverse decision was 3 based in part on Petitioner’s association with another inmate. 4 Again, Petitioner’s allegations are not supported by the record. Although there 5 appear to be three different versions of the incident report, the record shows that Petitioner 6 was served at the very latest on April 17, 2020, days before his April 22 hearing.1 7 (Doc. 15-2 at 30, 34.) The record also shows that Petitioner signed a form waiving his right 8 to call witnesses. (Id. at 38.) Finally, as for Petitioner’s allegations concerning the DHO, 9 there is no indication in the record that Petitioner requested review of video evidence, or 10 that the DHO’s decision was based on anything besides the evidence. In fact, the DHO 11 dismissed the threatening charge as not supported by the evidence. (Id. at 32.) 12 Furthermore, the record indicates that Petitioner received due process. The DHO 13 relied on the investigating officer’s description of the video, which reportedly showed 14 Petitioner slapping another inmate, as well as Petitioner’s admission that he assaulted the 15 other inmate. (Id. at 31–32.) This constitutes some evidence that Petitioner committed an 16 assault. Next, the record shows that Petitioner waived his right to assistance, that he chose 17 to not present documentary evidence, and that he received the DHO’s report. (Id. at 31, 33, 18 38.) Finally, as described above, the record indicates that the DHO’s decision was based 19 on the evidence, not improper bias. 20 Accordingly, 21 IT IS RECOMMENDED, as to the petition for a writ of habeas corpus under [22] 28 U.S.C. § 2241 (Doc. 1), that Ground Two and Ground Three be denied and that Ground 23 One and Ground Four be dismissed for lack of subject-matter jurisdiction.2 [24] 1 The copy submitted by Respondent contains a single paragraph describing the 25 incident, and it was served on Petitioner on April 17, 2020. (Doc. 15-2 at 34.) Petitioner submits two versions of the incident report, one of which contains the same one-paragraph 26 description while the other contains a lengthier description. (Doc. 1 at 10–11.) Both versions submitted by Petitioner were served on April 10, 2020. (Id.) 27 2 Respondent argues that Petitioner’s claims should be dismissed for failure to exhaust. Petitioner contends that he could not exhaust his claims because the BOP refused 28 to provide him with the necessary forms. Given the Court’s findings in this case, this dispute need not be addressed. 1 This recommendation is not immediately appealable to the United States Court of || Appeals for the Ninth Circuit. The parties shall have fourteen days from the date of service || of this recommendation to file specific written objections with the district court. The parties 4|| shall have fourteen days to file responses to any objections. 28 U.S.C. § 636 (b)(1); Fed. R. || Civ. P. 72(b)(2). No replies may be filed absent prior authorization by the district court. || Failure to file timely objections may result in the acceptance of this recommendation by 7\|| the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114 , || 1121 (9th Cir. 2003) (en banc). 9 The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-20-00300-TUC-JAS. 11 Dated this 20th day of May, 2021. 13 Uinted Staves Klee ae [28] -8-