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Ramos v. Fisher

United States District Court, D. Minnesota

September 17, 2014

Mark Ramos, Petitioner,
v.
Scott Fisher, Warden, Respondent.

REPORT AND RECOMMENDATION

JEANNE J. GRAHAM, Magistrate Judge.

This case is before the undersigned United States Magistrate Judge on pro se Petitioner Mark Ramos's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. For the reasons set forth below, the Court recommends that the petition be denied.

I. Background

The United States District Court, District of Massachusetts, sentenced Petitioner Mark Ramos to 188 months' imprisonment and 96 months' supervised release for conspiracy to distribute heroin, in violation of 21 U.S.C. § 846, and distribution of heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). (Groteboer Decl. ¶ 3, June 6, 2013, ECF No. 6.) Petitioner was initially confined at a Federal Medical Center in Massachusetts ("FMC-Devens") from August 30, 2006, to October 9, 2009. ( Id. ) He was then moved to FMC-Devens Camp Satellite Camp ("FMC-Devens Camp") and remained there until February 11, 2011, when he was transferred to the Federal Correctional Institute in Sandstone, Minnesota ("FCI-Sandstone"). ( Id. ) He arrived at FCI-Sandstone on May 3, 2011. (Groteboer Decl. Attach. K.) The events at issue relate to his time at FMC-Devens Camp.

A. The Search and Subsequent Investigation at FMC-Devens Camp

On April 28, 2010, a maintenance mechanic supervisor at FMC-Devens Camp was working in the inmate shower area when he discovered a cloth bag containing a cellular telephone and telephone charger behind a valve cover. (Groteboer Decl. Attach. B.) The worker notified the operations lieutenant, and a number of Bureau of Prisons ("BOP") staff members, including Correctional Counselor Jason Nelson, searched and secured the area. (Groteboer Decl. ¶ 5 & Attach. B.) A thorough search of the shower area uncovered seventeen cellular telephones and other prohibited items. ( Id. Attach. B.) The items were subsequently moved to the office of the Special Investigative Supervisor ("SIS"). ( Id. )

Following this search, Petitioner was placed in the FMC-Devens Camp Special Housing Unit on April 29, 2010, segregating him from the general prison population. (Groteboer Decl. ¶ 6 & Attach. C.) The Administrative Detention Order states, "[Petitioner] is placed in Administrative Detention pending an SIS investigation for phones." ( Id. Attach. C.) A subsequent SIS memorandum states that two numbers from a Nokia cellular telephone ("the Nokia") found in the shower search matched entries in Petitioner's prison telephone number list. ( Id. Attach. D.) This conclusion was reached by comparing the Nokia's saved contact data with the records of TRULINCS, the inmate telephone system. (Groteboer Decl. ¶ 7.) Two of the numbers saved in the Nokia were found only on Petitioner's TRULINCS records. ( Id. Attach. F.) The SIS then referred the matter to the Federal Bureau of Investigation ("FBI") for a criminal investigation. ( Id. )

The FBI notified FMC-Devens Camp on September 21, 2010, that they were declining to criminally prosecute Petitioner. (Groteboer Decl. ¶ 9.) SIS Technician D. Reynoso subsequently drafted an incident report charging Ramos with violations of Codes 108 and 297 of the Inmate Discipline Program. ( See id. Attach. F.) Code 108 prohibits, among other things, the possession of a cellular telephone while confined in a federal prison, and Code 297 prohibits the use of a cellular telephone to circumvent the BOP's telephone monitoring system. 28 C.F.R. § 541.3. SIS Lieutenant A. Paliotheodoros delivered the report to Petitioner on September 22, 2010. (Groteboer Decl. Attach. F.) Lieutenant Paliotheodoros read the report to Petitioner, advised him of his rights, and interviewed him. ( Id. ) Lieutenant Paliotheodoros averred that "the incident report is true and accurate as written" ( id. ), and it was referred to the Unit Discipline Committee ("UDC") for further action ( Id. ).

B. Proceedings Before the Unit Discipline Committee

Petitioner appeared before the UDC, which consisted of Correctional Counselor Nelson and Unit Manager Carrie Hunton, on September 24, 2010. (Groteboer Decl. ¶ 12 & Attach F.) Having been advised of his rights, Petitioner affirmed that the two numbers found in the Nokia were also on his TRULINCS account. ( Id. Attach. F.) However, he denied ownership of the Nokia and expressed a lack of knowledge as to how those numbers came to be on the telephone. ( Id. ) After the hearing, the UDC recommended loss of good-conduct time, loss of telephone privileges and TRULINCS for one year, and transfer to a secure facility. ( Id. ) The UDC referred the incident report to the Discipline Hearing Officer ("DHO") based on the "serious nature" of the charges; evidence provided within the incident report, especially cellular telephone records; and the Prisoner Litigation Reform Act Guidelines. ( Id. )

Upon referral, the DHO requested that SIS Technician Reynoso rewrite the body of the incident report to clarify the report with more information. (Groteboer Decl. ¶ 13 & Attach. G.) The revised incident report, dated September 29, 2010, was then delivered and read to Petitioner by Lieutenant Paliotheodoros later that day. ( Id. )

After the revised report, Petitioner appeared again before the same UDC, on October 6, 2010. (Groteboer Decl. ¶ 14.) The UDC advised Petitioner of his rights and explained the reason for the seven-day delay between Petitioner's receipt of the revised report and the second UDC hearing. ( Id. ) The UDC also provided Petitioner a copy of a memorandum by the warden explaining the reason for the delay. ( Id. ) Petitioner again denied ownership of the cellular telephone and expressed a lack of knowledge as to how some numbers from his TRULINCS account were recorded in the Nokia's data. (Groteboer Decl. ¶ 14 & Attach. G.) Petitioner admitted placing the two telephone numbers in question onto his TRULINCS account. (Groteboer Decl. ¶ 14.) The UDC recommended the same sanctions as it had previously, citing the same reasons in its referral of the matter to the DHO. ( Id. ) Petitioner was also provided the "Inmate Rights at Discipline Hearing" form and a "Notice of Discipline Hearing Before the DHO." ( Id. Attach. H.)

C. Proceedings Before the Discipline Hearing Officer

The DHO hearing was conducted the next day, October 7, 2010. ( Id. Attach. I.) After the hearing, a report was written that discussed the delays caused by the FBI investigation and revision of the incident report, and concluded that these delays did not cause Petitioner "any undue hardship in [his] ability to defend [him]self at this hearing." ( Id. ) Petitioner nevertheless objected to the timeliness of the hearing as a per se violation of his due process rights. ( Id. ) The DHO heard Petitioner's responses as to how these delays may have caused him difficulty in defending his case, but found these insufficient to show hardship. ( Id. ) The DHO determined, by "the greater weight of the evidence, " that the Petitioner violated Code 108 but dismissed the Code 297 violation without explanation. ( Id. )

When analyzing the Code 108 violation, the DHO cited the incident report and Petitioner's testimony. ( Id. ) The DHO found that the Nokia was discovered during the April 28, 2010 search and that it contained two numbers present on Petitioner's TRULINCS account. ( Id. ) The DHO cited the findings contained in the incident report and deduced that in order for the numbers found only on Petitioner's TRULINGS account to also be in the phone, Petitioner must have possessed the phone at some point in time. ( Id. ) The DHO also cited a memorandum from July 17, 2007, notifying the prison population that possession of a cellular telephone would constitute a violation of Code 108. ( Id. ) The DHO therefore concluded from these findings that "[Petitioner] circumvented routine telephone monitoring procedures by possessing and utilizing an unauthorized source to place telephone calls." ( Id. )

The DHO also considered evidence in favor of Petitioner, including Petitioner's denial of the ownership of the Nokia, his assertions that he had no knowledge as to why the telephone contained those particular numbers, and Petitioner's "Affidavit of Truth in Support to [sic] Dismiss." ( Id. ) The DHO discussed how the Nokia also contained a telephone number recorded in the TRULINCS account of Petitioner's brother who was incarcerated at FMC-Devens Camp from August 30, 2006, to October 9, 2009. ( Id. ) However, Petitioner's brother had no personal access to the compound where the Nokia phone was discovered. ( Id. )

Finding that Petitioner had committed a violation of Code 108 by possessing a cellular telephone, the DHO imposed a sanction of forty days of lost good time, thirty days of segregation, and a six-month loss of telephone and visitation privileges. ( Id. ) The DHO report included notification of Petitioner's right to appeal. It was signed on October 19, 2010, and was delivered to Petitioner on October 20, 2010. ...


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