Pizarro Calderon v. Chavez, No. CIV.03-2384(JAF).

• Decision Date: 07 July 2004
• Docket Number: No. CIV.03-2384(JAF).
• Citation: 327 F.Supp.2d 131
• Parties: Geronimo PIZARRO CALDERON, Petitioner, v. Ricardo E. CHAVEZ, Respondent.
• Court: U.S. District Court — District of Puerto Rico

327 F.Supp.2d 131

Geronimo PIZARRO CALDERON, Petitioner, v. Ricardo E. CHAVEZ, Respondent.

No. CIV.03-2384(JAF).

United States District Court, D. Puerto Rico.

July 7, 2004.

Geronimo Pizarro Calderon, Carolina, PR, Pro se.

H. Garcia, U.S. Attorney, Lisa E. Bhatia-Gautier, Asst. U.S. Attorney, San Juan, PR, for Respondent.

ORDER

FUSTE, Chief Judge.

Petitioner Geronimo Pizarro-Calderon ("Petitioner") brings the present petition for writ of habeas corpus under 28 U.S.C. § 2241 (1994 & Supp.2003) against Respondent, Ricardo E. Chavez ("Respondent"), the warden at Metropolitan Detention Center ("MDC") Guaynabo, Puerto Rico, where Petitioner was confined as an inmate.¹ Docket Document No. 1. Petitioner claims violations of his Fifth and Fourteenth Amendment due process rights. Id. Petitioner avers that the Bureau of Prisons ("BOP") deprived him of his constitutionally protected rights in denying him: (1) a one year sentence reduction upon his completion of the designated substance abuse treatment program as provided by 18 U.S.C. § 3621(e)(2)(B), and (2) due process with respect to his disciplinary hearing for unauthorized drug use. Id.

I. Factual and Procedural History

On September 11, 2000, this court sentenced Petitioner to a term of 72 months imprisonment upon his conviction of violations of 21 U.S.C. § 846 (1999 & Supp.2003). United States v. Geronimo Pizarro-Calderon, No. 99-77(JAF), Docket Document No. 502. Petitioner completed the BOP-provided Drug Abuse Program ("DAP") on June 22, 2002, at the Federal Prison Camp in Eglin, Florida ("FPC Eglin"), thereby becoming eligible for early release as per 18 U.S.C. § 3621(e)(2)(B). Docket Document No. 5. Upon completion of the DAP, Petitioner was transferred from FPC Eglin to MDC Guaynabo to await placement in the Community Correction Center ("CCC") where he would spend a period of six months before being entitled to his one-year sentence reduction. Docket Document No. 1.

On May 14, 2003, while residing at the CCC, Petitioner visited Dr. Manuel Velez ("Dr.Velez") to seek treatment for lower back pain associated with a lumbar disk hernia. Dr. Velez proscribed Petitioner medication for his condition. Docket Document No. 1, Exh. 1. The following day, Petitioner was given a urinalysis test which showed positive for cocaine metabolite/benzoylecgonine, a result which Petitioner claims was due to his taking of his prescription medication. Docket Document No. 1, Exh. 2. Based on the positive test results, and the finding that the medication Petitioner had been taking could result in a positive showing of opiates use, not cocaine metabolite, an incident report was issued for violation of code 112 (use of any narcotic, marijuana, drugs, or related paraphernalia not prescribed for the individual by medical staff) and Petitioner was remanded to MDC Guaynabo. Docket Document No. 1, Exh. 3.

On May 27, 2003, the Center Discipline Committee ("CDC") held a disciplinary hearing at MDC Guaynabo before Mr. Carlos Gonzalez ("Gonzalez"), CCC Case Manager, and Ms. Elsie Toffany ("Toffany"). Docket Document No. 1. Petitioner alleges that prior to the hearing's commencement, Gonzalez informed him that he could not represent him because he was to preside over the CDC hearing. Docket Document Nos. 1, 5. Although Plaintiff objected, Mr. Jose Carrasquillo, DAP Psychologist, was assigned to represent him in the hearing. Id. Petitioner requested that Dr. Velez be called as his witness, but Gonzalez informed Petitioner that he had not yet interviewed Dr. Velez. Docket Document No. 1. Petitioner proceeded with the hearing, allegedly unwillingly and under duress, and refused to plead guilty to the charges brought against him. Docket Document Nos. 1, 5. The CDC concluded that Petitioner committed the violation as charged and recommended to the Discipline Hearing Officer ("DHO") to forfeit the anticipated release time earned by the completion of the BOP's 500-hour Drug Aftercare Treatment Program, and to disallow maximum possible earned good time. Docket Document No. 1, Exh. 5.

Petitioner asserts that he received no further notice regarding the disposition of his case until one month later, when he learned that his case had been referred to the DHO for further examination. Docket Document No. 1. Although the DHO report states that it was provided to Petitioner on June 13, 2003, Petitioner alleges that, in fact, he was not provided with a copy of the report until August 26, 2003. Docket Document Nos. 1, 5, Exh. K.

Upon review of the CDC's hearing report, Petitioner was found guilty of violating code 112 and the DHO imposed the following sanctions: "disciplinary transfer; disallowance of 40 days GCT; and 30 days disciplinary segregation suspended for 90 days of clear conduct." Docket Document No. 1, Exh. 5. Based on Petitioner's conduct and the DHO's findings, Petitioner's anticipated one-year early release date was forfeited. Docket Document No. 1.

Petitioner claims that such a sanction, which was not specifically imposed by the DHO, was in contradiction to his due process rights. Id. Further, Petitioner contends that the circumstances surrounding his disciplinary hearing, including his not being allowed to present Dr. Velez as his witness and his untimely receipt of the DHO incident report also run afoul to his Constitutional rights. Id. Petitioner requests reinstatement to his status prior to May 25, 2003, with all statutory earned benefits. Id. Respondent opposes Petitioner's motion. Docket Document No. 5.

II. Sentence Reduction

Petitioner maintains that the BOP's decision to forfeit his one-year sentence reduction constitutes a violation of his constitutionally-protected due process rights in that the DHO did not impose this sanction. Docket Document No. 1. We disagree.

18 U.S.C. § 3621(e)(2)(B) provides that upon successful completion of the treatment program "[t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve." We note the statutory text, which instructs that the BOP "may" reduce the sentence of a nonviolent offender who successfully completes the drug treatment program. See Lopez v. Davis, 531 U.S. 230, 241, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). "When an eligible prisoner successfully completes drug treatment, the Bureau thus has the authority, but not the duty, both to alter the prisoner's conditions of confinement and to reduce his term of imprisonment." Id. at 241, 121 S.Ct. 714 ("[F]ederal prisoners do not become entitled to a sentence reduction upon their successful completion of a drug treatment program; the words `may be reduced' do not mean `shall be reduced.'" Id. at 248, 121 S.Ct. 714 (Stevens, J., dissenting on other grounds)).

The BOP has broad discretion in administering prisoners' sentences under 18 U.S.C. § 3621(e). See Downey v. Crabtree, 100 F.3d 662, 670 (9th Cir.1996) (recognizing that 18 U.S.C. § 3621(e)(2)(B) "reflects unequivocal congressional intent to leave to the Bureau final decisions regarding whether to grant eligible inmates a sentence reduction following successful completion of a drug-treatment program"). As to substance-abuse treatment programs, the BOP has wide discretion in determining both whether an inmate enters such a program in the first instance and whether to grant or deny eligible inmates a sentence reduction under § 3621(e). Id. at 670-71; Pelissero v Thompson, 170 F.3d 442, 444 (4th Cir.1999); Bellis v. Davis, 186 F.3d 1092, 1094 (8th Cir.1999); Lopez, 531 U.S. at 240, 121 S.Ct. 714 (affirming that the BOP "may exclude inmates either categorically or on a case-by-case basis, subject of course to its obligation to interpret the statute reasonably, in a manner that is not arbitrary or capricious" (internal citations omitted)).²

Courts have consistently held that 18 U.S.C. § 3621(e) does not create a liberty interest subject to constitutional protection. Cook v. Wiley, 208 F.3d 1314, 1322-23 (11th Cir.2000) (holding that 18 U.S.C. § 3621(e) creates no constitutionally protected liberty interest and therefore deciding that the BOP's refusal to consider petitioner for a sentence reduction did not violate his due process rights); Rublee v. Fleming, 160 F.3d 213, 216 (5th Cir.1998) (finding that the BOP has discretion to deny sentence reductions to even those inmates who successfully complete a treatment program); Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir.1998) (stating that 18 U.S.C. § 3621(e) creates no protected liberty interest); Orr v. Hawk, 156 F.3d 651, 654 (6th Cir.1998) (same). Thus, Petitioner's claim that the BOP violated his constitutional due process rights when it denied him his one-year sentence reduction is unavailing. See McLean v. Crabtree, 173 F.3d 1176, 1184-85 (9th Cir.1999) (rejecting appellant's due process claim upon affirming that 18 U.S.C. § 3621(e)(2)(B) creates no liberty interest in sentence reduction).

III. Disciplinary Hearing

Petitioner asserts that because the CDC disciplinary hearing subjected him to a loss of his one-year sentence reduction and to good time credits, he was entitled to due process under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).³ We agree. However, the pertinent question before us is whether the procedures afforded Petitioner meet the minimum standards required by Wolff. Langton v. Berman, 667 F.2d 231, 233-34 (1st Cir.1981). Under Wolff, an inmate facing a potential loss of good time credit must be provided not only a hearing before a disciplinary committee, but also advance notice, of not less than 24 hours, of the claimed violation, as well as a written statement of the fact finders as to the evidence relied upon and the reasons for the disciplinary action taken. Wolff, 418 U.S. at 563-64, 94 S.Ct. 2963. Although the Court also opined...