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Scotton v. Johns

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

September 19, 2017

ROGERIO CHAVES SCOTTON, Petitioner,
v.
TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Petitioner Rogerio Chaves Scotton (“Scotton”), who is currently housed at D. Ray James Correctional Facility (“D. Ray James”) in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 15.) Scotton then filed a Motion for Extension of Time to file a Reply. The Court GRANTS that Motion, and Scotton's June 26, 2017, Reply, (doc. 18), shall be deemed timely filed. However, the Court DENIES Scotton's Motion for Copies, (doc. 17). Additionally, for the reasons which follow, I RECOMMEND that the Court DENY in part and DISMISS in part Scotton's Petition, DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this case, and DENY Scotton in forma pauperis status on appeal.

         BACKGROUND

         Scotton is currently serving a 108-month sentence for having committed the offenses of mail fraud and false statements. (Doc. 15-1, pp. 20-22.) He is incarcerated at D. Ray James, and he has a projected release date of April 7, 2020, via good conduct time release, to be followed by 3 years of supervised release.[1] (Id.)

         On June 1, 2016, the Kitchen Food Service Manager at D. Ray James called for Scotton in his unit and directed him to report to the kitchen for his work assignment. (Id. at pp. 26-27.) Scotton allegedly refused to report to the kitchen and told the manager that he will never report to work in the kitchen. (Id.) The kitchen manager then called Investigator Bonorden and stated that Scotton will never report to the kitchen for work. (Id.) Bonorden began an investigation into the incident on June 1, 2016. (Id.) The investigator advised Scotton of his right to remain silent at all stages of the disciplinary process and that his silence may be used to draw an adverse inference against him at any stage of the disciplinary process. (Id.) The investigator also informed Scotton that his silence alone may not be used to support a finding that he committed the violation. (Id.) Scotton acknowledged that he understood these rights and denied stating that he would never work. (Id.) However, Scotton stated that he could not work in the kitchen due to a health condition. (Id.) The investigator concluded that there was sufficient evidence to support the charge against Scotton, and the Incident Report was then forwarded to the Unit Disciplinary Committee (“UDC”). (Id.)

         The UDC hearing was held on June 3, 2016. Scotton appeared at the hearing and provided a statement in his defense restating his prior denial of the charges. Due to the nature of the allegation and the fact that this was Scotton's third offense of this level, the UDC made no decision and referred the matter to be heard by a Disciplinary Hearing Officer (“DHO”). (Id.) The UDC recommended a loss of 27 days of good conduct time and a change of quarters. (Id.)

         On June 3, 2016, D. Ray James staff provided Scotton with notification of the DHO hearing and his rights regarding the hearing. (Id. at pp. 29-32.) Scotton refused to sign the notice, and a staff member witnessed his refusal. (Id.) Scotton was notified of his opportunity to request witnesses and the assistance of a staff representative, and he did not request either. (Id.)

         The original DHO hearing was scheduled for June 15, 2016. (Id. at pp. 34-37.) Scotton appeared at this hearing and requested to call witnesses. (Id.) Thus, the DHO hearing was postponed to locate his requested witnesses and schedule their appearance.

         DHO Roger Perry reconvened the hearing on June 20, 2016 . (Id.) Scotton was once again advised of his due process rights and was provided an opportunity to make a statement and present documents. (Id.) Scotton requested the assistance of a staff representative and asked to call four witnesses. Scotton's staff representative appeared at the hearing and stated that she met with him prior to the hearing and that they both were ready to proceed. (Id. at p. 39.) During the hearing, DHO Perry heard from Scotton's four witnesses, all of whom were fellow inmates. (Id. at p. 36.)

         Scotton made contradictory statements during the hearing. (Id.) He denied the charge against him but also stated that he told the officer that he did not want to work in the kitchen. (Id.) Additionally, one of Scotton's witnesses, a fellow inmate, stated that Scotton was told that he needed to work, and Scotton refused to go. (Id.) DHO Perry also considered the statement from the Food Service Manager that Scotton refused to report to work when told to do so, as well as a statement from a correctional officer in Scotton's unit who stated that she also told Scotton to report to work in the kitchen, and Scotton told her that he was not going to do so. (Id.) Additionally, DHO Perry also reviewed Scotton's inmate profile, which stated that Health Services had cleared Scotton for regular duty with medical restrictions and that he was cleared for food service work. (Id.)

         DHO Perry determined that Scotton committed the act as charged, and he recommended Scotton be sanctioned with, inter alia, disallowance of twenty-one days of good conduct time and restricting Scotton to his quarters. (Id. at p. 37.) DHO Perry forwarded his DHO report to the DHO Oversight Specialist with the Bureau of Prisons' (“BOP”) Privatization Management Branch in Washington, D.C., who certified that the recommended sanctions were appropriate and that the hearing complied with due process. (Id. at p. 41.) Following this certification, on June 28, 2016, DHO Perry personally delivered a copy of his DHO report to Scotton. (Id. at p. 42.) DHO Perry advised Scotton of his right to appeal the DHO findings and sanctions. (Id.)

         DISCUSSION

         In his Petition, Scotton contends that the DHO hearing violated his due process rights. Specifically, Scotton repeatedly contends that DHO Perry was not impartial because Perry had already prepared a typed memorandum notifying Scotton of his quarter-restrictions sanctions at the beginning of the hearing. (See Doc. 1-2, p. 6.) Scotton also contends that the facts did not support DHO Perry's decision.

         Respondent counters that Scotton received the appropriate due process protections during the disciplinary proceedings and that the sanctions against him were ...


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