United States District Court, D. Minnesota
ORDER ADOPTING REPORT AND RECOMMENDATION
Wilhelmina M. Wright United States District Judge
matter is before the Court on the April 30, 2019 Report and
Recommendation (R&R) of United States Magistrate Judge
Leo I. Brisbois. (Dkt. 16.) The R&R recommends denying
Petitioner Auzio Hewlett's petition for a writ of habeas
corpus and dismissing the case with prejudice. Hewlett filed
objections to the R&R and Respondent Warden of FMC
Rochester responded. For the reasons addressed below, the
Court overrules Hewlett's objections and adopts the
November 2017, FMC Rochester inmate Auzio Hewlett attempted
to send a text message through a third-party forwarding
service to a phone number that was not on his approved phone
list. Prison officials initiated an investigation and
conducted two subsequent hearings. The officials determined
that Hewlett committed a Code 296 violation, “Use of
Mail for Abuses Other than Criminal Activity.” The
prison officials sanctioned Hewlett with 14 days of lost
good-conduct time and 60 days of lost email privileges.
filed a petition for a writ of habeas corpus on August 6,
2018, challenging his loss of good-conduct time as
unconstitutional. Hewlett asserts that (1) the investigative
officer was the same as the reporting officer, (2) there was
insufficient evidence to support the prison officials'
findings, and (3) the sanctions were excessive. Magistrate
Judge Brisbois issued an R&R concluding that the
investigative officer and the reporting officer were not the
same individual, there was sufficient evidence to support the
prison officials' determination, and the sanctions
imposed were within the range contemplated by federal
regulations. Accordingly, the R&R recommends denying
Hewlett's petition. Objections and a response were timely
timely objections are filed, as they were here, “the
court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. §
636(b)(1)(C); accord Fed. R. Civ. P. 72(b)(3); LR
72.2(b)(3). Because Hewlett is proceeding pro se, the Court
liberally construes his objections. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
objects to the R&R's conclusion that there was
sufficient evidence to support the prison officials'
determination that Hewlett violated Code 296. When prison
action results in an inmate's loss of good-conduct time,
due process requires that there be “some
evidence” to support the prison's decision.
Superintendent, Mass. Corr. Inst., Wapole v. Hill,
472 U.S. 445, 455 (1985). The “some evidence”
standard is satisfied when there is “any evidence in
the record that could support the conclusion reached by the
disciplinary board.” Id. at 455-56. When
applying this standard, a reviewing court need not examine
the entire record, independently assess the credibility of
witnesses, or weigh the evidence. Id. at 455.
record indicates that Hewlett used a third-party messaging
service in an attempt to send a message to
“5133227566.” This number is not included on
Hewlett's approved phone list. FMC Rochester has several
policies prohibiting such action. Most notably, FMC Rochester
prohibits the use of third-party forwarding services and
circulated a memorandum to that effect dated September 28,
2016, and recirculated that memorandum on July 27, 2017. As
such, there is at least some evidence in the record that
Hewlett improperly used the mail system. Accordingly, this
objection is overruled.
construing Hewlett's filing, Hewlett makes two other
objections. First, Hewlett contends that Code 296 applies
only to paper correspondence. Nothing in Code 296 supports
such a narrow interpretation, however. See 28 C.F.R.
541.3. Second, Hewlett objects to the R&R's
conclusion that the requirements of due process were
satisfied, arguing that he did not receive advance notice
that his actions were prohibited. But the record establishes
that inmates were on notice of a policy prohibiting
third-party messaging systems and a policy requiring messages
to be sent to approved contacts. For these reasons, the
remainder of Hewlett's objections are overruled.
does not object to any other aspect of the R&R.
Therefore, the Court reviews the remaining portions of the
R&R for clear error. See Fed. R. Civ. P. 72(b)
advisory committee's note to 1983 amendment; Grinder
v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per
curiam). Having conducted its review of those parts of the
R&R to which Hewlett does not object, the Court finds no
on the R&R, the foregoing analysis and all the files,
records and proceedings ...