United States District Court, D. Minnesota
Derrick Jerome Spencer, (pro se Petitioner)
Voss, Ann M. Bildtsen, and Erin M. Secord, (for Respondent).
REPORT AND RECOMMENDATION
N. LEUNG UNITED STATES MAGISTRATE JUDGE
matter is before the Court, United States Magistrate Judge
Tony N. Leung, on a Petition for Writ of Habeas Corpus Under
28 U.S.C. § 2241, (ECF No. 1), Petitioner's Motion
for Entry of Default Judgment (ECF No. 7), Petitioner's
Motion to Reconsider Motion for Default Judgment (ECF No.
11), and Respondent's Response to Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241, Amendment to
Petition, and Motion to Reconsider Motion for Default
Judgment (ECF No. 17). This action has been referred to the
undersigned magistrate judge for report and recommendation to
the Honorable Michael J. Davis, United States District Judge
for the District of Minnesota, under 28 U.S.C. Â§ 636 and
Local Rule 72.2(b). Based on all the files, records, and
proceedings herein, and for the reasons set forth below, this
Court recommends that the petition and related motions be
FACTUAL AND PROCEDURAL BACKGROUND
Derrick Jerome Spencer is incarcerated at the Federal Prison
Camp in Duluth, Minnesota. Pet., at 1 (ECF No. 1). Spencer is
serving a 262-month term of imprisonment for multiple
drug-related offenses. Deloia Decl. ¶ 7, Ex. B. (ECF
Nos. 18 & 18-2). He has a projected release date of
November 8, 2026. Id.
officials charged Spencer with two violations of prison rules
and regulations on October 27, 2017. They first charged
Spencer with possessing a hazardous tool. They alleged that
on the afternoon of October 27, Officer J. Ostrander entered
a bathroom to conduct a search of Spencer and several other
inmates. (ECF No. 3-1, p. 2). When Officer Ostrander patted
down Spencer, he noticed a hard object near the inside of his
right ankle. (ECF No. 3-1, p. 2). The officer directed
Spencer to lift up the leg of his sweatpants. (ECF No. 3-1,
p. 2). Spencer did, and the officer noticed a cell phone
tucked in Spencer's sock. (ECF No. 3-1, p. 2). When the
officer attempted to remove the phone, Spencer jumped away
from him and refused to comply with the officer's
commands to pull his sock down and remove the phone. (ECF No.
3-1, p. 2). This incident was documented in report number
3049678. In response, Spencer stated that Officer Ostrander
falsified the incident report. (ECF No. 3-1, p. 2).
prison authorities charged Spencer with disposing of an item
during a search. They alleged that when Spencer jumped away
from Officer Ostrander, the officer radioed for assistance to
Officer Rajala who was outside the bathroom. (ECF No. 3-1, p.
1). When Officer Rajala entered the bathroom, Spencer removed
the phone from his sock and threw it in the garbage can, in
view of both officers. (ECF No. 3-1, p. 1). Officer Ostrander
recovered the phone from the trash can. (ECF No. 3-1, p. 1).
Officer Ostrander documented this incident in report number
3049682. In response to this report, Spencer denied
possessing a cell phone or throwing it the garbage can. (ECF
No. 3-1, p. 1).
incident reports were referred to Discipline Hearing Officer
(“DHO”) Mark Deloia for a hearing on November 21,
2017. For both incidents, Spencer indicated that he wished to
call Officer Rajala to testify and that he wished to have a
staff member represent him at his hearing. (ECF Nos. 18-6,
18-12). Before the hearing, however, staff informed Spencer
that his representative would not be present at the prison
camp that day. Deloia Decl. ¶¶ 13, 24. The DHO
indicates that Spencer chose to waive his right to
representation and proceed with the hearing. Id.
Spencer contends prison officials pressured him into waiving
his right to a staff representative, telling him his
representative would not be available for at least two months
and that he would be kept in solitary confinement during this
Rajala also did not testify at the hearing. (ECF No. 18-9, p.
1, 18-15, p. 1). Instead, he provided a written statement
indicating that as he entered the bathroom, he observed
Spencer throw a cell phone in the garbage. (ECF No. 3-1, p.
9). The DHO determined that in light of this memorandum,
Officer Rajala's testimony would be redundant and there
was no need for him to appear. (ECF No. 18-9, p. 1, 18-15, p.
determined, based on “the greater weight of the
evidence, ” that Spencer committed the prohibited acts
of possession of a hazardous tool and disposing of an item
during a search. (ECF Nos. 18-9, p. 3, 18-15, p. 3). In
reaching this conclusion, the DHO placed great weight on the
fact that two officers observed the cell phone and that those
staff members had “nothing to gain from fabrication of
the charge.” (ECF Nos. 18-9, p. 3, 18-15, p. 3). The
DHO decided that Spencer would lose 41 days of good conduct
time for each violation. (ECF Nos. 18-9, p. 3, 18-15, p. 3).
appealed both decisions to the North Central Regional Office.
(ECF No. 3-1, pp. 10, 16). Both appeals were denied. (ECF No.
3-1, pp. 12, 18). Spencer then submitted the appeals to the
Central Administrative Office. (ECF No. 3-1, pp. 13, 19).
Again, both appeals were denied. (ECF No. 3-1, p. 15, 21).
then filed this habeas corpus petition, seeking relief on
four grounds. First, he argued that the DHO's findings
regarding both incidents are inconsistent with the evidence
presented in the DHO report. Second, he claimed that the
incident reports were insufficient to support the DHO's
findings. Third, he argued that he was forced to waive his
right to a staff representative. Finally, he claimed that the
DHO violated his due process rights by preventing him from
calling witnesses. Spencer asks that the incident reports be
expunged and that the Court order his good time credit be
October 1, 2018, the Court ordered Respondent to file an
answer to the petition within 30 days. (ECF No. 5). Sometime
thereafter, the Court learned that, due to an inadvertent
clerical error, Respondent did not receive a copy of the
petition or the October 1, 2018 order. (ECF No. 6). As a
result, the Court struck the previous deadlines from its
October 1, 2018 order and ordered Respondents to answer the
petition on or before December 15, 2019. (ECF No. 6). On
November 16, 2018, Spencer filed a motion for default
judgment. (ECF No. 7). Approximately one month later, he filed
both a motion to reconsider his motion for default judgment
and an amendment to his petition, alleging that amended DHO
reports that he received were invalid because they were
signed by a different BOP employee. (ECF Nos. 10 and 11). In
response, Respondent asked that his deadline to answer the
petition be extended to December 19, 2018, so that he could
address Spencer's amendment. (ECF No. 14). The Court
granted that request and Respondent subsequently answered the
has filed both a motion for default judgment and a motion to
reconsider his motion for default judgment. Because either
motion could be dispositive to the issues raised in the
Petition, the Court will consider those motions first.
judgment may be entered when “a party against whom a
judgment for affirmative relief is sought has failed to plead
or otherwise defend.” Fed.R.Civ.P. 55(a). Though the
Federal Rules of Civil Procedure may be applied in habeas
proceedings when they would not be inconsistent with any
statutory provisions or the Rules Governing Section 2254
Cases,  default judgments are strongly disfavored
in such proceedings. Hale v. Lockhart, 903 F.2d 545,
547 (8th Cir. 1990). This is particularly true when the
petitioner seeks default judgment only because the opposing
party is untimely in responding. “[N]o court has
ordered a habeas writ to issue solely because of
delay.” Hale v. Lockhart,903 F.2d 545, 547
(8th Cir. 1990); see also Ward v. Terrell, No.
08-cv-837, 2008 WL 5273720 *7 n. 4 (D. Minn. Dec. 17, 2008)
(collecting cases that hold failure to file timely ...