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Hunter v. Rios

United States District Court, D. Minnesota

May 15, 2019

JOHN HUNTER, SR., Petitioner,
v.
M. RIOS, Warden, FPC-Duluth, Respondent.

          John Hunter, Sr., Federal Prison Camp-Duluth, pro se Petitioner.

          Bahram Samie, U.S. Attorney's Office, for Respondent.

          REPORT AND RECOMMENDATION

          DAVID T. SCHULTZ UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Petitioner John Hunter, Sr., an inmate at FPC-Duluth, seeks a Writ of Habeas Corpus from this Court reinstating 41 days of good conduct time he lost following a disciplinary hearing. At the hearing, a Disciplinary Hearing Officer (DHO) concluded that Hunter had violated prison rules by possessing a cellphone. In his Petition, Hunter contends he was denied adequate due process before being deprived of the good time credit. Upon review, the Court is satisfied that Hunter received adequate due process, and so recommends that Hunter's petition be denied.

         FINDINGS OF FACT

         On April 13, 2017, a cellphone[1] was discovered in vegetation near the Visiting Road of the Federal Prison Camp in Duluth, Minnesota (FPC-Duluth). Decl. of Mark DeLoia Ex. D[2] at 1, 6, Docket No. 7-1. The area where the phone was found is “accessible to inmates, even if they would be out of bounds.” Id. at ¶ 19. The phone was sent to the Bureau of Prisons Forensic Lab for analysis. Id. at ¶ 9, Ex D at 5. FPC-Duluth officials subsequently received the results of that analysis, including a call log. Id. at Ex. D at 7-8. The investigating officer identified the phone number for an outgoing call on April 12, 2017, as belonging to Hunter's parent or parents. Id. at Ex. D at 1, 8-10. The number was unique to Hunter's prison phone account. Id. at Ex. D at 1. From this, the officer drafted an incident report charging Hunter with possession of a portable telephone, which prison policy considers a hazardous tool. Id. at Ex. D at 1, Ex. A (Inmate Discipline Program) at 44.

         On the evening of September 19, 2017, Hunter received the incident report charging him with possessing the cellphone. Id. at Ex. D at 1-2. The report contained the following description of the incident:

On September 19, 2017, an SIS review of BOP Forensic Lab Extraction Report conducted on an Alcatel model 4060A cellular phone, IMEI: 014699005810190, with an AT&T sim card 89014103279161986817, was recovered on April 13, 2017 at 9:30 pm, near the FPC Duluth Visiting Road, south of the Visiting Center Parking lot. During the review, I discovered seven phone numbers unique only to Hunter, John, Reg. No. 18434-041, active TRUPHONE account, this numbers [sic] appear on the phone log for April 12, 2017. The report showed that the cell phone was used to place a call to [the phone number associated with Hunter's account].

Id. at Ex. D at 1. Hunter was also informed of his right to remain silent through the disciplinary proceedings. Id. at Ex. D at 2. The report states that, after being advised of his right to remain silent, Hunter told the investigating officer that he never used the phone himself, but asked a friend to make a call for him, and acknowledged that the phone number belonged to his father. Id. at Ex. D at 2.

         The next day, a Unit Discipline Committee[3] conducted an initial hearing of the charge. Id. at Ex. D at 1. At the hearing, Hunter stated that he wanted “the full report.” Id. Because of the nature of the charge, the Committee referred the report to a Discipline Hearing Officer.[4] Id. at Ex. D at 1, Ex. A at 23, 44. Hunter was informed of and acknowledged his rights for the DHO hearing. Pet. Ex. B, Docket No. 1-1. He requested to have Ms. Olson, an education technician, as his staff representative for the hearing, but did not request any witnesses be called. Pet. Ex. C; DeLoia Decl. ¶ 11.

         The DHO hearing took place the following week. Before the hearing, Hunter learned that his selected staff representative would not be at FPC-Duluth on the day of hearing. DeLoia Decl. ¶ 13; Pet. Ex. D at 1. The DHO Report indicates Hunter waived his right to a staff representative at the outset of the hearing. Pet. Ex. D at 1. Besides not calling witnesses, Hunter presented no documentary evidence. Id. at Ex. D at 2. He did make a statement during the hearing, which the DHO summarized as follows:

My dad got hurt. I gave the number to another inmate. His name was chief, but he is no longer here. He called my dad [sic] I was standing right there in the phone room and I never used the cell phone. I never told anyone to use a cellphone.

Id. at Ex. D at 1.

         The DHO found that Hunter had committed the charged offense of possessing a cellphone. In his report, the DHO listed the evidence he believed supported his finding. Id. at Ex. D at 2. This included the investigating officer's summary in the incident report, the forensic documents from Forensic Lab, printouts of Hunter's prison telephone account, [5] and the investigator's summary of Hunter's statement when given the incident report. Id. The DHO stated that he considered Hunter's denial of ever actually using the phone, but did not credit it because Hunter could not provide any corroborating evidence, including the actual name of the prisoner he only knew as “Chief.” Id. The DHO's list of specific evidence contained two statements attributed to Hunter that apparently were made by other inmates during hearings held the same day. Id.; DeLoia Decl. ¶ 20. Based on his determination that Hunter committed a prohibited act, the DHO sanctioned Hunter by deducting 41 days of his earned good conduct time, as well as imposing a 120-day loss of certain privileges. Pet. Ex. D at 2. Hunter filed an administrative appeal of the DHO's decision, but it was denied. Pet. 2-3.

         CONCLUSIONS OF LAW

         In this habeas petition under 28 U.S.C. § 2241, Hunter challenges the adequacy of the due process he received at the DHO hearing. Fairly construing Hunter's Petition and supporting memoranda, he argues his rights were violated because (1) he was never provided a full version of the investigator's report after he requested it, (2) he was denied a staff representative, (3) the DHO Report contained several false or inaccurate statements attributed to him, and (4) the evidence was otherwise not sufficient to find ...


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