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Trego v. Johns

United States District Court, S.D. Georgia, Waycross Division

November 7, 2014

JOSE TREGO, Petitioner,
v.
TRACY JOHNS, Warden, Respondent

Jose Trego, Petitioner, Pro se, Folkston, GA.

For Warden Tracy Johns, Respondent: John Thomas Clarkson, U.S. Attorney's Office - Savannah, Savannah, GA.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

JAMES E. GRAHAM, UNITED STATES MAGISTRATE JUDGE.

Petitioner Jose Trego (" Trego"), who is currently incarcerated at D. Ray James Correctional Facility in Folkston, Georgia, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent filed a Response, and Trego filed a Traverse. For the reasons which follow, Trego's petition should be DENIED.

STATEMENT OF THE CASE

Trego was suspected of being an organizer of a group demonstration/food strike after several inmates wanted to protest the quality of the recent holiday meal. Trego was placed in the Special Housing Unit for investigation of his involvement in this demonstration. After the investigation was completed, Trego was charged by incident report with encouraging a group demonstration, in violation of code 212 of the prison's disciplinary regulations. The incident report was forwarded to the Unit Disciplinary Committee (" UDC") for a hearing, and the UDC referred the matter to be heard by a Disciplinary Hearing Officer (" DHO"). The DHO recommended that Trego be sanctioned with, inter alia, disallowance of 27 days' good conduct time. (Doc. No. 8, pp. 2-5). The DHO forwarded her recommendation to a DHO oversight specialist in the Bureau of Prisons' (" BOP") management branch, who found that the recommended sanctions were appropriate and the hearing process complied with due process. (Doc. No. 8-2, p. 43).

In this petition, Trego contends that the due process requirements were not met and that the DHO was not authorized to take away any of his good conduct time. Respondent asserts that Trego's petition is without merit.

DISCUSSION AND CITATION TO AUTHORITY

I. Due process requirements

Trego alleges that " due process was not proper[ ]" because he " was not the original inmate sanctioned for the [charged] offense." (Doc. No. 1, p, 4). Respondent contends that Trego's due process rights were not violated because Trego was afforded all the requisite procedural protections during the administrative process and there was sufficient evidence to support the DHO's decision.

A prisoner has a protected liberty interest in statutory good time credits, and, therefore, a prisoner has a constitutional right to procedural due process in the form of a disciplinary hearing before those credits are denied or taken away. O'Bryant v. Finch, 637 F.3d 1207, 1213 (11th Cir. 2011) (citing Wolff v. McDonnell, 418 U.S. 539, 555-57, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). That due process right is satisfied when the inmate: (1) receives advance written notice of the charges against him, (2) is given the opportunity to call witnesses and present documentary evidence, and (3) receives a written statement setting forth the disciplinary board's findings of fact. Id. (citing Wolff, 418 U.S. at 563-67). Additionally, the Court of Appeals for the Eleventh Circuit has determined that an inmate has the right to attend his disciplinary hearing. Battle v. Barton, 970 F.2d 779, 782-83 (11th Cir. 1992). " [T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). Determining whether the " some evidence" standard is satisfied " does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Smith, 432 F.App'x at 845. " Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." " The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact." Tedesco v. Sec'y for Dep't of Corr., 190 F.App'x 752, 757 (11th Cir. 2006) (internal citation omitted). In addition, an inmate facing disciplinary sanctions is not entitled to the full panoply of rights afforded to criminal defendants. Id.

Trego was charged by incident report dated January 24, 2013, with encouraging a group demonstration, a code 212 violation. Trego received a copy of this incident report on January 25, 2013. (Doc. No. 8-2, p. 27). On January 30, 2013, the inmate register number was changed to reflect Trego's inmate register number. Trego received this corrected incident report on January 30, 2013. (Doc. No. 8-1, pp. 5-6). The UDC conducted a hearing on the same day, at which Trego was present and gave a statement. The UDC referred the matter to a DHO for a hearing based on the severity of the charge. (Doc. No. 8-2, p. 27). Trego was advised of his rights for the disciplinary hearing, including his right to have a staff member represent him during this hearing and to call witnesses and present documentary evidence, on January 30, 2013. (Id. at p. 39). Trego indicated that he did not wish to have a staff representative or to have witnesses. (Id.).

Trego's disciplinary hearing was conducted on February 6, 2013, at which time the DHO read and reviewed Trego's due process rights. (Id. at pp. 33, 35). DHO Jennifer Chockley found that Trego was guilty of the code 212 offense as charged based on the greater weight of the evidence. In so doing, DHO Chockley relied on the incident report and investigation, as well as the inmate investigative report, which was signed by the warden on January 24, 2013. (Id. at pp. 34-36). DHO Chockley noted that Trego admitted to being a representative of a group who participated in the strike and to participating in the strike " because ...


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