United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
Juventino Perez (“Perez”), who is currently
incarcerated at D. Ray James Correctional Facility in
Folkston, Georgia, filed a 28 U.S.C. § 2241 Petition for
Writ of Habeas Corpus. Doc. 1. Respondent filed a Motion to
Dismiss, and Perez filed a Response. Docs. 4, 6. For the
reasons which follow, I RECOMMEND the Court
GRANT Respondent's Motion to Dismiss,
DENY Perez's Petition,
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Perez in
forma pauperis status on appeal.
was convicted in the District of Minnesota of aiding and
abetting and possession with intent to distribute
methamphetamine, in violation of 18 U.S.C. § 2 and 21
U.S.C. §§ 841(a)(1) and (b)(1)(A). Doc. 4-1 at 3.
Perez was sentenced to 135 months' imprisonment and has a
projected release date of October 21, 2020, via good conduct
result of disciplinary hearing proceedings based on a charge
for fighting, Perez was sanctioned with the loss of 27
days' good conduct time, among other sanctions. Doc. 1 at
2. Perez seeks to have the 27 days' lost good conduct
time restored to him and to have the sanctions expunged from
his record. Id. at 8.
Petition, Perez asserts he was working as a commissary
orderly when another inmate, Pedro Rodriguez, began harassing
him. Id. at 7. Perez states this other inmate later
assaulted him, and Perez defended himself. Id. Perez
faced disciplinary charges for fighting resulting from this
incident and was later found guilty of the charged offense.
Perez maintains he was acting in self-defense and should not
have been charged with or found guilty of fighting. Doc. 1-1
avers Perez's due process rights were not violated as a
result of the disciplinary proceedings. Doc. 4 at 3-4. In
addition, Respondent asserts the Disciplinary Hearing
Officer's (“DHO”) finding of guilt on the
charged offense is supported by some evidence. Id.
Whether Due Process Requirements Were Met
alleges Rodriguez hit him first, and he reacted out of
self-defense. Doc. 6 at 1. In addition, Perez contends the
officer who witnessed Rodriguez harassing him did nothing to
prevent this situation from escalating. Id. at 2.
Perez maintains he was unable to call witnesses during the
hearing because the DHO did not accept Perez's desired
witnesses, as these witnesses worked at the institution.
Id. at 2-3. Perez states Respondent did not mention
Perez was in the Special Housing Unit (“SHU”).
Id. at 2.
was charged on August 9, 2018 with fighting with another
person after he and Rodriguez were involved in an
altercation. Doc. 4 at 2. A correctional staff member
prepared an incident report on this same date, and Perez was
given a copy of the incident report. Doc. 4-2 at 3. After the
Unit Discipline Committee (“UDC”) referred the
matter, DHO Roger Perry conducted a disciplinary hearing on
August 20, 2018. Id. Perez did not request any
witnesses or documentary evidence and waived his opportunity
to have staff representation during the hearing. Id.
Perez admitted to being involved in the incident with
Rodriguez but stated he acted in self-defense. Id.
at 4. DHO Perry concluded the greater weight of the evidence
supported a finding of Perez having committed the prohibited
act as charged. Id. The DHO Oversight Specialist in
Washington, D.C. certified the report complied with due
process requirements and the Bureau of Prisons' Program
Statement. Id. & at 11.
noted, Perez was provided with a copy of the incident report
charging him with a Code 201 violation (fighting with another
person) on August 9, 2018. Id. at 7. On August 14,
2018, Perez was advised of his rights before the
Id. DHO Perry conducted the hearing on August 20,
2018. Id. Perez waived his right to staff
representation and his right to call witnesses. Id.
In addition to the incident report and investigation, DHO
Perry considered the medical records, which revealed Perez
received no injuries but Rodriguez had, as well as 16 still
photographs printed from the closed-circuit television of the
fight in progress on August 9, 2018. Id. at 7; 8.
DHO Perry also considered Officer S. Waldon's report,
which indicated Rodriguez threw the first punch and
retreated, but Perez walked toward Rodriguez and punched him.
Id. at 8. DHO Perry also considered Perez's
statements that he was only defending himself and he did not
remember hitting Rodriguez, but DHO Perry found Perez's
statements to be contradicted by the still photographs.
Id. DHO Perry found Perez committed the charged act
by the greater weight of evidence and sanctioned Perez with
disallowance of 27 days' good conduct time, 30 days'
disciplinary segregation, and loss of telephone and
commissary privileges for 2 months. Id. at 8-9.
Perez was provided with a written copy of the DHO's
findings and advised of his appeal rights on August 23, 2018.
Id. at 9.
determine whether Perez's right to due process was
violated, the Court must determine what process was owed to
Perez. 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 taken away or
denied. O'Bryant v. Finch, 637 F.3d 1207, 1213
(11th Cir. 2011) (citing Wolff v. McDonnell, 418
U.S. 539, 555-57 (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
Eleventh Circuit has determined an inmate has the right to
attend his disciplinary hearing. Battle v. Barton,
970 F.2d 779, 782-83 (11th Cir. 1992). Importantly, an inmate
facing disciplinary sanctions is not entitled to the full
panoply of rights afforded to criminal defendants.
out above and in the attachments to the parties'
pleadings, the record demonstrates Perez received the
required due process protections. An incident report was
issued on August 9, 2018, and Perez received this incident
report the same day. Doc. 4-2 at 7. Perez was advised of his
rights before the DHO and received a copy of the notice of
hearing and his rights on August 14, 2018. Id. The
allegations set forth in Perez's incident report were
investigated, and he received a DHO hearing on August 20,
2018. Id. ...