United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
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.
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. (Id.)
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”).
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
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.)
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.
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.)
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.
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.)
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.
counters that Scotton received the appropriate due process
protections during the disciplinary proceedings and that the
sanctions against him were ...