Rodriguez v. M. Gutierrez
| Decision Date | 04 April 2023 |
| Docket Number | CV-22-00518-TUC-JAS-BGM |
| Parties | Rudy Rodriguez, Petitioner, v. M. Gutierrez,[1] Respondent. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
Pending before the Court is Petitioner Rudy Rodriguez's (“Petitioner” or “Rodriguez”) Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody[2] (“Petition”) (Doc. 1). Respondent filed a Return and Answer[3](“Response”) (Doc. 10), and Petitioner replied[4] (“Reply”) (Doc. 14). Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (“LRCiv”),[5] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. (Doc. 5.) The Magistrate Judge recommends the District Court dismiss the Petition (Doc. 1).
Petitioner has been incarcerated at the Federal Correctional Complex in Tucson, Arizona (FCC Tucson) since December 6, 2019. Petitioner is currently serving a 200-month term of imprisonment for conspiracy to distribute a controlled substance, involving in excess of 500 grams of methamphetamine. Id. Petitioner is projected to be released from Bureau custody on September 4, 2023.[6] Id.
Petitioner challenges a disciplinary violation for an incident that occurred on July 31, 2020 (Incident Report No. 3420807) that resulted in the loss of 41 days good conduct time.[7] (Doc. 1 at 4.) Petitioner asserts one ground for relief. In Ground One, Petitioner contends that his “prison sentence was unconstitutionally lengthened by virtue of losing 41-days of good conduct time that was arbitrarily and capriciously taken violative of due process of law.” (Doc. 1 at 4.) Petitioner seeks the “return of 41-days of good conduct time” that he asserts were “unjustly taken as a result of Incident Report Number 3420807.” (Doc. 1 at 7; Petition at 6.)
On April 2, 2020, Petitioner received Incident Report No. 3385342, which was later “expunged.” “The UDC [Unit Discipline Committee] and DHO [Discipline Hearing Officer] held administrative hearings to expunge the IR” and concluded “EXPUNGED: In a memo dated April 6, 2020, the writer of the Incident Report (IR), SIS Technician M. Castro, requested expungement due to the NIK test being incorrectly administered.” (Doc. 13-1 at 22.) D. Makowski served as the Discipline Hearing Officer at the hearing DHO hearing April 15, 2020, expunging Incident Report No. 3385342. (Doc. 13-1 at 23.)
On July 31, 2020, Special Investigative Services (“SIS”) Technician Contreras found a “black paper substance” on the desk in the cell assigned to Petitioner. The investigation photographs included identification of: 1) two paper strips approximately an inch in length; and 2) an ID size piece of black paper. (Doc. 13-1 at 10, 13-14.) “Found in the cell was two strips of black like paper on a calculator on the desk, and a ID size piece of black paper hidden inside of a folder pocket on the desk of the cell. (Doc. 13-1 at 43.) According to the Incident Report and the Estrada Declaration, “When asked about the black paper substance found on the calculator, Rodriguez took ownership of the strips stating he uses them ‘as markers when they play board games.'” (Doc. 13-1 at 39; Doc. 13-1 at 4, ¶ 8.) Also, (Doc. 13-1 at 46; see also Doc. 13-1 at 4, ¶ 8.) Based on the results of the NIK testing, SIS Technician Contreras wrote the incident report charging Petitioner with the possession of drugs/alcohol (“Code 113”).[9] (Doc. 13-1 at 4, ¶ 8.)
On July 31, 2020, Petitioner received a copy of Incident Report No. 3420807. Petitioner was advised of his rights regarding the disciplinary process and was given the opportunity to make a statement to investigating Lieutenant Daniel Patterson. Id. Petitioner stated to Lieutenant Patterson, “I went through this once already, you can take any piece of paper, and it will come back as amphetamine, this is crazy.” Lieutenant Patterson referred the matter to the UDC for further processing. Id.
On August 3, 2020, the UDC conducted a hearing of Incident Report No. 3420807. During the UDC hearing, Petitioner stated, (Doc. 13-1 at 4, 40.) Based on the seriousness of the conduct, the UDC referred Incident Report No. 3420807 to the DHO for further disciplinary consideration, and recommended “DS/Loss of GCT.” Id. at 4, 40.[10] UDC Chairman Diaz certified the recommendation. Id.
On August 6, 2020, DHO Antonietta Estrada conducted the hearing on Incident Report No. 3420807. (Doc. 13-1 at 5, ¶ 12; Doc. 13-1 at 34, Att. 4.) Petitioner was present during the DHO hearing and waived his right to a staff representative and elected not to call any witnesses. Id. After being advised of the charges in the incident report, Petitioner denied the charges and provided a written statement in his defense. Id. In his statement, Petitioner alleged “[t]his is the 2nd time I have had this problem with paper testing ‘+' for Amphetamines the 1st I/R [incident report] was expunged because I asked them to test any paper and it will come back ‘+'.” (Doc. 13-1 at 5, ¶ 12; Doc. 13-1 at 51, Att. 4.) Petitioner also alleged that Bureau Program Statement 5360.07 requires that all positive NIK tests be confirmed by a second test at an “exclusively approved Central Office laboratory.” (Doc. 13-1 at 51.) According to Estrada's Discipline Hearing Officer Report:
The DHO notes your denial, and that you stated in your written statement this incident has happened to you before and was expunged, but you provided no evidence to support this statement. Also, in your written statement you quote from program statement 5360.07, but after research this program statement was found to be the old Religious Beliefs and Practices program statement that has since been updated to 5360.09. So your statement cannot be considered credible as it does not come from that program statement or any that can be found. Your denial of knowledge is only your word and cannot be considered.
(Doc. 13-1 a 36, Att. 4; see also Doc. 13-1 at 51.) According to Estrada's Declaration, submitted with Respondent's Exhibit A, Program Statement 5360.07 does not address drug detection but is rather an outdated version of the Bureau's Religious Beliefs and Practices policy. (Doc. 13-1 at 5, ¶ 12; Doc. 13-1 at 36.) Additionally, DHO Estrada attests there is no policy requiring all NIK tests be confirmed by a second test. (Doc. 13-1 at 5, ¶ 12.)
DHO Estrada found that Petitioner did commit the prohibited act of Code 113-Possession of any narcotics, marijuana, drugs, alcohol intoxicants. (Doc. 13-1 at 4, ¶ 13; Doc. 13-1 at 35, Att. 4.) DHO Estrada attests he “relied on the factual information in Incident Report No. 3278486 and supporting documentation,” and the incident report reflects reliance on, specifically, “the reporting officer's eyewitness statement.” (Doc. 131 at 5, ¶ 13; Doc. 13-1 at 36.) As a result of the finding of guilt associated with the Code 113 violation, DHO Estrada imposed the following sanctions against Petitioner:
(Id.; see also Doc. 13-1 at 37, Att. 4.)
On August 17, 2020, a copy of the DHO Report, which included all of the written findings and conclusions, was provided to Petitioner. (Doc. 13-1 at 4, ¶ 14; Doc. 13-1 at 37.) The DHO Report also detailed the reasons for the sanctions. Id. Petitioner was specifically advised of his right to appeal DHO Estrada's findings and conclusions within 20 days through the Administrative Remedy Program. (Doc. 13-1 at 4, ¶ 14; Doc. 13-1 at 38.)
Petitioner's Regional Administrative Remedy Appeal Application dated August 2020, appealing the DHO's decision regarding Incident Report 3420807, is stamped “Received October 9, 2020 by the Western Regional Office.” (Doc. 13-1 at 54.) A “Rejection Notice” to Petitioner from the Administrative Remedy Coordinator at the Central Office reflects the appeal was received on December 3, 2020, stating “for the reasons listed below, this central office appeal is being rejected and returned to you,” “you did not provide a copy of your regional office administrative remedy appeal (BP-10) form, and in the remarks section, “Region failed to respond timely, provide copy of your missing BP-10 form and we will accept.” (Doc. 1-2 at 39.) The Central Office indicated “you may resubmit your appeal in proper form within 15 days of the date of this rejection notice.” (Doc. 1-2 at 39.)
On appeal, Petitioner contended that the NIK tested paper did not contain narcotics and requested that it be sent to a “Central Office approved lab” for retesting at Petitioner's expense. (Doc. 13-1 at 6, ¶ 15; Doc 13-1 at 54-55, Att. 5.) Petitioner's administrative appeal submits, in pertinent part, “[i]t is only a piece of paper and a[n] old picture that I blacked out to use as a guide...
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