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Alaniz v. Nicklin

United States District Court, W.D. Texas, El Paso Division

July 17, 2019

BENITO NICOLAS ALANIZ, Reg. No. 44925-379, Petitioner,
v.
SCOTT NICKLIN, Warden, Respondent.

          ORDER GRANTING RESPONDENTS MOTION FOR SUMMARY JUDGMENT AND DISMISSING PETITIONER'S PETITION FOR A WRIT OF HABEAS CORPUS

          PHILIP R. MARTINEZ, UNITED STATESJ2ISTRICT JUDGE

         On this day, the Court considered Petitioner Benito Nicolas Alaniz's [hereinafter "Petitioner"] pro se "Petition under Section 2241 to Challenge BOP Abuse of Discretion by the Deprivation of 41 Days of Good Time, Pursuant to an Egregious Exercise of Power that Is so Capricious as to Violate the Constitution" (ECF No. 1) [hereinafter "Petition"], filed on August 16, 2018, in the above-captioned cause. Therein, Petitioner challenges a Discipline Hearing Officer's decision finding him guilty of introducing a hazardous tool-a cell phone-and sanctioning him with the loss of forty-one days of good conduct credit. Additionally, the Court considered Respondent Scott Nicklin's [hereinafter "Respondent"] "Motion for Summary Judgment" under Federal Rule of Civil Procedure 56 (ECF No. 9) [hereinafter "Motion for Summary Judgment"], filed on December 6, 2018; Petitioner's "Notice of Motion and Motion to Object to the Summary Motion under Fed. R. of Civ. P. 56" (ECF No. 10) [hereinafter "Response"], filed on December 21, 2018; Respondent's "Reply in Support of his Motion for Summary Judgment" (ECF No. 14) [hereinafter "Reply"], filed on January 3, 2019; Petitioner's "Motion to Object to the Respondent's Reply" (ECF No. 16) [hereinafter "Surreply"], filed on January 18, 2019; Respondent's "Motion to Strike Surreply" (ECF No. 17), filed on January 23, 2019; and Respondent's "Response to Petitioner's Motion for Summary Judgment" (ECF No. 18), filed on February 1, 2019. After due consideration, the Court is of the opinion that all of Petitioner's motions should be denied, Respondent's Motion for Summary Judgment should be granted, and Petitioner's Petition should be dismissed, for the reasons that follow.

         I. BACKGROUND AND PROCEDURAL HISTORY

         Petitioner was a federal prisoner assigned to the Federal Correctional Institution La Tuna in Anthony, Texas. Pet'r's Pet. 1, Aug. 16, 2018, ECF No. 1. During a search of his jail cell on November 3, 2017, a cell phone was discovered under his pillow. Resp't's Mot. Summ. J., Dec. 6, 2018, ECF No. 9-3, Ex. 1 (Decl. of C. Cole), Attach. 2 (Incident Report), at 10, § 11. When confronted with the phone, Petitioner claimed that "someone set him up." Id. at 11, § 24. That same day, Petitioner received Incident Report 3052444 charging him with "possession of anything not authorized," in violation of Code 305. Id. at 10, §§ 9-11. In addition, Petitioner's case was referred to the Unit Discipline Committee ("UDC") for further proceedings. Id. at 11, §27.

         On November 7, 2017, Petitioner received a re-written Incident Report charging him with a more serious offense, "possession of a portable telephone, or electronic device," in violation of Code 108. Id. at Attach. 2 ((Revised) Incident Report), at 8, §§ 9-11. During an investigation into this charge, Petitioner claimed "[t]his report is not true, the phone does not belong to me it belongs to my cellie. I was at the yard when [they] found it." Id. at 9, §24.

         Petitioner appeared before the UDC on November 8, 2017. Id. at 8, §§ 17-21. Petitioner maintained that the phone was not his and explained that the owner admitted to putting it under his pillow. Id. at § 17. Petitioner's case was referred to the Discipline Hearing Officer ("DHO") due to the severity of the charged act. Id. at §§ 18, 19, 21. Petitioner received an Inmate Rights at Discipline Hearing form. Id. at Attach. 3 (Inmate Rights at Discipline Hearing), ECF No. 9-3. Petitioner did not request a staff representative, but he did request a witness-the purported owner of the cell phone. Id. at Attach. 4 (Notice of Discipline Hearing Before the (DHO)).

         On November 30, 2017, Petitioner appeared before the DHO for a hearing. Id. at Attach. 5 (Discipline Hearing Officer Report), at 17, § I.B. Petitioner's witness testified, "[t]he phone is not his. It's my phone." Id. at § III.C.2. Despite the testimony of the witness, the DHO found Petitioner committed the prohibited act of "Introduction of a Hazardous Tool," a cell phone, in violation of Code 108. Id. at 18, § V. The DHO explained that Petitioner's witness never claimed that he put the cell phone under Petitioner's pillow, and Petitioner's multiple explanations for the presence of the cell phone under his pillow made him less credible:

The DHO considered and relied upon the witness's statement during the DHO hearing. He indicated the phone was not yours, but was his. The DHO based sum [sic] facts to the witness statement. Although the witness claims ownership of the cell phone, he was not found in possession of the cell phone at the time of the incident. Further, at no time did the witness indicate that he put the cell phone under your pillow. The phone was found in your assigned bed assignment, 115L as described in section 11 of the incident report. You are responsible for your assigned bed assignment at all times. The witness's statement was considered and forwarded to the SIS office pending further investigation.
The DHO considered your statement during the initial incident investigation. You stated, "Someone set me up." During the incident report re-investigation, you stated, "The report is not true. The phone does not belong to me. It belongs to my cellie. I was at the yard when they found it." During the UDC review, you stated, "The phone is not mine. The owner admitted he put it there." . . . The DHO considered your statements to be conflicting and less than credible. You initial [sic] said someone set you up, and then you said your cellie claimed ownership. The DHO notes throughout the disciplinary process, the witness did not admit to putting the cell phone under your pillow at any time. The DHO gives greater weight of the evidence to the reporting staff member's account of the incident, statements and presented documentation, to find you committed the prohibited act.

Id. The DHO sanctioned Petitioner to the loss of forty-one days of good conduct time, thirty days of disciplinary segregation (suspended 180 days pending clear conduct), and 180 days loss of phone, commissary, and visiting privileges. Id. at § VI.

         Petitioner exhausted issues related to Incident Report No. 3052444 through the Bureau of Prisons' process for resolving prisoner complaints. Id. at Attach. 6 (Administrative Remedy No. 926716).

         In his instant Petition, Petitioner challenges the DHO's decision finding him guilty of possessing a cell phone. Pet'r's Pet. Specifically, Petitioner claims that, although the cell phone was found under his pillow, another inmate came forward and admitted, in an affidavit, that he owned the cell phone. Id. at 2. "Stunningly, despite the affidavit and the verbal confession of ownership of the cell phone, [Petitioner] was slapped with a number of sanctions including . . . forty one (41) days loss of Good Time." Id. Accordingly, Petitioner asks the Court to order the Bureau of Prisons to restore the forty-one days of lost good conduct credit. Id. at 4.

         Respondent moves for summary judgment. Resp't's Mot. Summ. J., Dec. 6, 2018, ECF No. 9. Respondent argues that the Bureau of Prisons met all the due process and evidentiary requirements for a prisoner's disciplinary hearing. "Petitioner has not been denied due process in connection with" his disciplinary hearing "and the DHO had 'some evidence' that Petitioner committed the prohibited act." Id. at 9. Hence, Respondent asks the Court to grant its Motion for Summary Judgment and dismiss Petitioner's Petition.

         Petitioner claims in his Response to the Motion for Summary Judgment that there is a genuine issue of material fact concerning the ownership of the cell phone. Pet'r's Resp. 4, Dec. 21, 2018, ECF No. 10. He suggests that, since he was not the owner of the cell phone, he should not be held accountable for its presence under his pillow. In addition, he asks the Court to enter a default judgment against Respondent. Id. at 2. Specifically, he argues that Respondent failed to answer the Court's Order directing him to show cause why it should not grant Petitioner the relief he requested. Id. at 2, 7.

         Respondent counters in a Reply "that a default judgment is not appropriate in a habeas proceeding." Resp't's Reply 2, Jan. 3, 2019, ECF No. 14 (citing Wiggins v. Procunier,753 F.2d 1318, 1321 (5th Cir. 1985)). In addition, Respondent notes that "a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 is permissible in federal habeas corpus cases." Id. (citing Clark v. Johnson,202 F.3d 760, 764-65 (5th Cir. 2000) ...


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