United States District Court, D. Oregon
J. BROWN, United States .District Judge
an inmate at FCI Sheridan, brings this habeas corpus action
pursuant to 28 U.S.C. § 2241. For the reasons that
follow, the Court DENIES the Petition for Writ of Habeas
Corpus (ECF No. 1) and Petitioner's Motion for Temporary
Restraining Order/Preliminary Injunction (ECF No. 3) and
DISMISSES this action.
is currently serving a six-month term of imprisonment imposed
by District Judge Michael McShane in Case No.
6:07-cr-60033-MC-3 for a supervised release violation. Prison
staff have issued two Incident Reports against Petitioner.
The first Incident Report alleges that Petitioner violated
two prison rules: Introduction of Narcotics and Use of Phone
for Criminal Purposes. The second Incident Report alleges
Petitioner violated one rule, the Use of Phone for Other than
Criminal Purposes. A Unit Disciplinary Committee
("UDC") convened and recommended that both matters
be referred to a Disciplinary Hearing Officer for further
hearing, and that Petitioner be sanctioned with loss of good
conduct time and loss of telephone privileges. It does not
appear the Disciplinary Hearing Officer has yet conducted a
hearing on either Incident Report.
alleges the Incident Reports violate his due process rights
because the statements upon which they are based are
conclusory and do not establish "some evidence"
that Petitioner committed the code violations. Petitioner
also alleges the first Incident Report interferes with his
right to free speech and freedom of association. Petitioner
seeks an immediate order restraining Respondent from imposing
the proposed sanctions based upon an argument that he faces
imminent and irreparable harm in the form of loss of his
writ of habeas corpus is available to a prisoner "in
custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. § 2241(c)(3).
Habeas petitions brought under § 2241 are subject to
summary dismissal pursuant to Rules 1(b) and 4 of the Rules
Governing Section 2254 Cases. Under Rule 1(b), the Rules
Governing § 2254 Cases apply to habeas corpus petitions
brought pursuant to § 2241. Under Rule 4, the court must
undertake a preliminary review of each petition for writ of
habeas corpus. Upon such review, "[i]f it plainly
appears from the face of the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner."
Premature Petition/Exhaustion of Remedies
well settled that federal prisoners must exhaust their
federal administrative remedies prior to filing a habeas
corpus petition. Martinez v. Roberts, 804 F.2d 570,
571 (9th Cir. 1986); see also Fendler v. United States
Parole Com'n, 774 F.2d 975, 979 (9th Cir. 1985).
While the exhaustion requirement is not jurisdictional, its
importance is well established. Brown v. Rison, 895
F.2d 533, 535 (9th Cir. 1990).
a petitioner to exhaust his administrative remedies aids
"judicial review by allowing the appropriate development
of a factual record in an expert forum." Ruviwat v.
Smith, 701 F.2d 844, 845 (9th Cir. 1983) . Use of
available administrative remedies conserves "the
court's time because of the possibility that the relief
applied for may be granted at the administrative level."
Id. Moreover, it allows "the administrative
agency an opportunity to correct errors occurring in the
course of administrative proceedings." Id.; United
Farm Workers v. Arizona Agric. Employ. Relations Bd.,
669 F.2d 1249, 1253 (9th Cir. 1982). "Exhaustion of
administrative remedies is not required where the remedies
are inadequate, inefficacious, or futile, where pursuit of
them would irreparably injure the plaintiff, or where the
administrative proceedings themselves are void."
United Farm Workers, 669 F.2d at 1253 (citation
does not deny that he has not exhausted his administrative
remedies; indeed, as Petitioner alleges, the disciplinary
hearing has not yet been convened. Petitioner asserts,
nonetheless, that this Court should consider his Petition
because staff at FCI Sheridan have "a history of
harassing inmates by writing them false incident reports
(bogus I/R) and then following up with inadequate
disciplinary hearings with a hearings officer (DHO) who
provides hearings that are lacking in the minimal due process
that inmates are entitled to . . . ." This conclusory
statement is not sufficient to excuse Petitioner from
awaiting the outcome of the disciplinary proceeding and then
exhausting his administrative remedies.
alleges his due process rights have been violated because the
two Incident Reports are based on conclusory statements that
are not "some evidence" that Petitioner committed
the code violations charged. In Wolff v. McDonald,418 U.S. 539 (1974), the Supreme Court set out the minimum
procedural protections required by the Due Process Clause in
the context of prison disciplinary hearings. Under
Wolff, inmates facing the loss of good conduct time
are entitled to written notice of the charges no less than 24
hours before the disciplinary hearing; an impartial hearing
body; the right to present documentary evidence; a limited
right to call witnesses; and, a written statement as to the
evidence relied on and the reasons for the discipline.
Id. at ...