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Silva v. Paul

United States District Court, D. Minnesota

January 7, 2019

Natividad Silva, Petitioner,
v.
David Paul, Warden, Respondent.

          REPORT AND RECOMMENDATION

          ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE.

         Petitioner Natividad Silva (“Silva”), a prisoner at the Federal Medical Center in Rochester, Minnesota (“FMC-Rochester”), has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. No. 1.) Petitioner has also filed a Motion for a Temporary Restraining Order and Preliminary Injunction and Request or Emergency Hearing (“TRO Motion”). (Dkt. No. 17.) This case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court recommends that the Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Dkt. No. 1) and the TRO Motion (Dkt. No. 17) be denied.

         I. FACTUAL BACKGROUND

         A. Silva's Incarceration at FMC-Rochester

         Silva is presently incarcerated at FMC-Rochester. (Dkt. No. 15 ¶ 5; Dkt. No. 15-2.) He is serving a 397-month term of imprisonment for Robbery Affecting Commerce and Aiding and Abetting, in violation of 18 U.S.C. § 1951(a), and Possession of a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)-(2). (Id.) His present projected date of release is May 6, 2021, via a good conduct time release. (Id.)

         B. Silva's Employment in FMC-Rochester's HVAC Trade Program

         Gerald Drazkowski (“Drazkowski”) serves as a heating, ventilation, and air conditioning (“HVAC”) foreman for FMC-Rochester. (Dkt. No. 15 ¶ 1.) As the HVAC foreman, Drazkowski is responsible for completing HVAC repairs and maintenance; teaching inmates the trade of HVAC following the Department of Labor Apprenticeship Program; and maintaining the security of FMC-Rochester by verifying inmate accountability and maintaining tool control. (Id. ¶ 2.) Drazkowski hired Silva to participate in the HVAC apprenticeship program on November 7, 2016. (Dkt. No. 15 ¶ 7; Dkt. No. 15-1.)

         Silva's work performance rating for the month of November 2016 shows that Drazkowski rated Silva as a 2 out of 5 (with 5 being the best), or “fair, ” on each category of the evaluation, including the quality and quantity of his work; his initiative, eagerness and ability to learn; need for, and response to, supervision; ability to work with others; and overall job proficiency. (Dkt. No. 15 ¶ 8; Dkt. No. 15-3.)

         Drazkowski asserts Silva failed to report to his work assignment for the afternoon work call on December 21, 2016. (Dkt. No. 15 ¶ 9.) Drazkowski was accountable to the Bureau of Prisons (“BOP”) for Silva's whereabouts and had repeatedly reminded Silva that he needed to show up to work. (Id.)

         Drazkowski also claims that on December 28, 2016, Silva instructed inmate A.S. to come to the HVAC shop and ask Drazkowski for a job. (Id. ¶ 10.) Drazkowski was unable to hire A.S. because Drazkowski had just hired another inmate, D.W., and consequently there were no openings on his work detail. (Id.) Drazkowski maintains Silva was upset that Drazkowski did not hire A.S. and told Drazkowski that he had messed up, that he had made a bad choice, was wrong, and was bad at hiring. (Id.) Drazkowski told Silva that he was out of line and that hiring determinations were his decision. (Id.)

         According to Drazkowski, on December 30, 2016, Silva refused to work with his work group on an air handler issue in the FMC-Rochester mechanical room. (Id. ¶ 11.) Drazkowski asked Silva to help, and Silva responded, “I know how to do this, and they're in the way.” (Id.) Drazkowski told Silva that he should help, but Silva responded, “They're just doing it wrong; I could do it and not get dirty.” (Id.) Drazkowski again told Silva that he needed to pick up tools and help the group with the work. (Id.) Silva then told Drazkowski, “I won't work in groups.” (Id.) Drazkowski claims that when he pulled Silva into his office to discuss the incident, he explained to Silva that the majority of HVAC learning opportunities were in a group form, but Silva refused to help in a group setting. (Id.) Silva then proceeded to again criticize Drazkowski for not hiring A.S. and used a BOP staff member's name to intimidate Drazkowski. (Id.) According to Drazkowski, Silva had completely alienated himself from the group, and the other HVAC inmates were refusing to work with him. (Id.)

         Silva's work performance rating for the month of December 2016 indicates Drazkowski again rated Silva as a 2, or “fair, ” on each category of the evaluation sheet, with the exception of “initiative.” (Id. ¶ 12; Dkt. No. 15-4.) For the “initiative” section, Drazkowski rated him as a 1, or “unsatisfactory, ” which states in pertinent part “always waits to be told what to do and needs help getting started.” (Dkt. No. 15-4.)

         On January 3, 2017, Silva sent an email to Warden LaRiva complaining that Drazkowski continuously yelled at him, including yelling at him for recommending another employee inmate for the HVAC program. (Dkt. No. 1-1 at 3.) Silva also asserted that he got in trouble when other “inmates got into a disagreement as to how to remove a bolt-I took two-steps back and got yelled at when the inmates made jokes at me for not being dirty.” (Id.) Silva asserted that he did not want to be fired from the program and did not know why Drazkowski continued to threaten and yell at him in front of other intimates. (Id.) Silva asked Warden LaRiva to intervene prior to him having to file for remedies. (Id.)

         On January 4, 2017, Drazkowski had discussion with Silva about constantly challenging his authority. (Dkt. No. 15 ¶ 13.) Drazkowski asserts that Silva was very argumentative during this discussion and accused Drazkowski of yelling at him daily, which Drazkowski denies doing. (Id.) According to Drazkowski, Silva refused to accept any responsibility for his actions, and Drazkowski was left with no choice but to fire him for his work call absence, refusing to perform work in a group, and insolence to staff. (Id.) Drazkowski denies firing Silva for his use of the administrative remedy process or for complaints Silva filed about his job or Drazkowski. (Id. ¶ 14.)

         Silva sent another email on January 4, 2017 to Warden LaRiva asserting that he had been terminated from the HVAC program by Drazkowski because he claimed Silva dictated the way Drazkowski ran the shop, that Silva did not wish to work and “something about filing with congressionmenand [sic] sentors.” (Dkt. No. 1-1 at 4.) Warden LaRiva responded to Silva on January 5, 2017, letting him know that the matter would be investigated. (Id.)

         Silva refutes the claims made by Drazkowski in his Declaration. (Dkt. No. 25 ¶ 4.) According to Silva, the assertion in the declaration must be false because D.W. had left FMC-Rochester and A.S. was disliked by staff. (Id.)

         C. Silva's Application to the Teaching Animals & Inmates Life Skills Program

         FMC-Rochester has partnered with Can Do Canines, a nonprofit organization which provides assistance dogs to people with disabilities, to create the Teaching Animals & Inmates Life Skills (“TAILS”). (Dkt. No. 22 ¶ 3.) In this program, inmates raise and train the puppies until the puppies are about 18 months old, when Can Do Canines then takes over and provides specialized training. (Id.) For this program, two inmate handlers would be assigned to each puppy, and observers would also be selected who would become a handler if an assigned handler had to leave the program. (Id.)

         FMC-Rochester staff select the inmate handlers. (Id.) The TAILS program coordinators received 32 applicants for 14 handler and 2 observer positions. (Id. ¶ 4.) In selecting handlers, coordinators considered factors such as whether the inmate was appropriate to be around animals, was capable of completing the training associated with the program, could partner well with another handler and follow the instructions of Can Do Canines, and other correctional management concerns. (Id.) They solicited input from various departments throughout the facility. (Id.) The coordinators interviewed 23 of the 32 applicants and selected 16 inmates for the program. (Id.)

         Silva applied to be a handler in the TAILS program. (Id. ¶ 5; Dkt. No. 19.) In reviewing his application, the BOP program coordinators noted he had difficulty maintaining relationships with his peers and staff. (Dkt. No. 22 ¶ 5.) The coordinators concluded Silva might not be a good match for the TAILS program at that time because the inmate handlers needed to work together to train a puppy and be receptive to feedback from Can Do Canines trainers. (Id.) However, the TAILS program is expected to expand, and Silva can reapply for one of these future handler positions. (Id.)

         According to Silva, the only requirement of the TAILS program is that he be incident free for the last 12 months and have at least 18 months left on his sentence. (Dkt. No. 19.) Silva maintains that this program is the “last and final opportunity in his attempt for any form of an ‘occupational training' needed upon release. . . .” (Id.) During his incarceration, Silva has had a number of work assignments including, but not limited to, food service, electrical, vehicular component repair, computer repair and orderly. (Dkt. No. 15-1.) He is presently participating in several programs, including as a volunteer therapist helping inmates regain mobility and volunteering with hospice care. (Dkt. No. 19; Dkt. No. 24 at 10-11.)

         II. ...


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