United States District Court, W.D. Texas, El Paso Division
BENITO NICOLAS ALANIZ, Reg. No. 44925-379, Petitioner,
SCOTT NICKLIN, Warden, Respondent.
ORDER GRANTING RESPONDENTS MOTION FOR SUMMARY
JUDGMENT AND DISMISSING PETITIONER'S PETITION FOR A WRIT
OF HABEAS CORPUS
R. MARTINEZ, UNITED STATESJ2ISTRICT JUDGE
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.
BACKGROUND AND PROCEDURAL HISTORY
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
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.
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)).
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.
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).
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.
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
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.
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) ...