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Perez v. Johns

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

November 7, 2019

JUVENTINO CORIA PEREZ, Petitioner,
v.
WARDEN TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         BACKGROUND

         Perez 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 time. Id.

         As a 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.

         DISCUSSION

         In his 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 at 3.

         Respondent 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. at 4-6.

         I. Whether Due Process Requirements Were Met

         Perez 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.

         Perez 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.

         As 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 DHO.[1] 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.

         To 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. Id.

         As laid 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. ...


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