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Benavides v. Zych

United States District Court, W.D. Virginia, Roanoke Division

January 9, 2017

LINCOLN BENAVIDES, Petitioner,
v.
CHRISTOPHER ZYCH, [1]Respondent.

          MEMORANDUM OPINION

          NORMAN K. MOON, UNITED STATES DISTRICT JUDGE

         Lincoln Benavides, a federal inmate proceeding pro se, filed a petition for writ of habeas corpus pursuant 28 U.S.C. § 2241, challenging a disciplinary proceeding that resulted in, inter alia, the loss of good conduct time (“GCT”). Respondent filed a motion for summary judgment and this matter ripe for disposition. For the reasons stated herein, I will grant respondent's motion for summary judgment.

         I.

         On March 7, 2014, while housed at the Federal Correctional Institution in Gilmer County, West Virginia (“FCI Gilmer”), Benavides received an incident report that charged him with violating Prohibited Act Code 297, Use of Telephone for Abuses Other than Criminal Activity.[2]On the same day, Benavides was advised of his right to remain silent at all stages of the disciplinary process and Benavides told the investigator that he was guilty. A Unit Disciplinary Committee (“UDC”) hearing was held and, regarding the charges, Benavides told the UDC, “[i]t is true.” Based on the incident report and Benavides' admission of guilt, the UDC referred the charge to the Disciplinary Hearing Officer (“DHO”) for further action.

         On March 11, 2014, Benavides was given a “Notice of Discipline Hearing Before the DHO” form and advised of his rights concerning the hearing. Benavides indicated that he did not wish to have a staff representative or witnesses. On April 1, 2014, a DHO hearing was conducted. Benavides admitted giving another inmate access to his telephone account so that the other inmate could use the telephone. The DHO found that Benavides violated Prohibited Act Code 297A, Use of a Telephone for Abuses Other than Criminal Activities (Aiding), and imposed the following sanctions: disallowance of 27 days of GCT, 20 days of disciplinary segregation (suspended pending 180 days of clear conduct), 90 days of lost telephone privileges, and an additional 90 days of lost telephone privileges (suspended pending 180 days of clear conduct). The DHO documented that the sanctions were imposed because the use of a telephone in this manner poses a serious threat to the ability of the staff to control the use of the telephone, it is important to the security of the institution that inmates be allowed to contact only those persons authorized, to hold Benavides accountable for his behavior, to deter him from engaging in similar behavior in the future, and to serve as an incentive to keep Benavides from committing additional prohibited acts. Benavides was advised of his appeal rights and was provided a copy of the DHO report on April 10, 2014. Benavides appealed the disciplinary action to no avail.

         Benavides filed a habeas petition pursuant to § 2241, alleging that: 1) he was denied his right to a staff representative at the disciplinary hearing, 2) he was charged with the wrong Prohibited Act code, 3) “progressive discipline” was not utilized, and 4) he was punished more severely based on his race. Benavides seeks expungement of the disciplinary conviction and all references to it in his records, restoration of his good conduct time, and that the FCI Gilmer officials be reprimanded for discriminating.[3]

         II.

         Benavides alleges that his right to a staff representative at the disciplinary hearing was violated because his staff representative was not provided sufficient advanced notice of the hearing and was not able to review the phone recording. However, the uncontroverted record demonstrates that Benavides was given the opportunity to request a staff representative and declined one. Moreover, there is no general constitutional right of an inmate to have a staff representative in prison disciplinary hearings. Hudson v. Hedgepath, 92 F.3d 748, 751 (8th Cir. 1996); Morgan v. Quarterman, 570 F.3d 663, 668 (5th Cir. 2009). Due process requires that inmates be provided with the aid of a staff representative only where the inmate is illiterate or “the complexity of the issue[s] make it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case.” Wolff v. McDonnell, 418 U.S. 539, 570 (1974); Hedgepath, 92 F.3d at 751. In this case, there is no evidence that Benavides is illiterate or that the issues were so complex as to require a staff representative. Based on the foregoing, I conclude that Benavides' allegation does not state a viable due process claim and, therefore, I will grant respondent's motion for summary judgment as to this claim.[4]

         III.

         Benavides alleges that he was charged with the wrong Prohibited Act code. He was charged with Prohibited Act Code 297, Use of the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor frequency of telephone use, content of the call, or the number called; or to commit or further a High category prohibited act. See Docket No. 10-6. Benavides alleges that he should have been charged with Prohibited Act Code 397, Use of the telephone for abuses other than illegal activity which do not circumvent the ability of staff to monitor frequency of telephone use, content of the call, or the number called; or to commit or further a Moderate category prohibited act. Id. (emphasis added).

         “[R]evocation of good time does not comport with ‘the minimum requirements of procedural due process, ' . . . unless the findings of the prison disciplinary board are supported by some evidence in the record.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985). The “some evidence” standard is a lenient one, requiring no more than a “modicum of evidence, ” and is met if there is any evidence in the record that could support the decision. Id. at 455-56.

         Benavides was given an incident report that charged him with Prohibited Act Code 297. At the DHO hearing, Benavides admitted that he gave another inmate access to his telephone account so that the other inmate could talk on the telephone. In making the final determination, the DHO specifically noted that Benavides' conduct of giving the other inmate access to Benavides' telephone account circumvented the telephone monitoring procedures.

         There is clearly “some evidence” supporting the finding that Benavides' conduct violated Prohibited Act Code 297 because it circumvented monitoring procedures. Moreover, other courts have upheld a DHO's finding of guilt under Prohibited Act Code 297 for the same conduct at issue here. See Mehta v. O'Brien, No. 1:10cv200, 2011 WL 1790440, at *5 (N.D. W.Va. Mar. 29, 2011) (“some evidence” supported DHO's finding that the inmate committed violation of code 297) (citing Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985)); Saeed v. Pugh, No. 4:14CV0871, 2014 WL 4966357, at *2 (N.D. Ohio Oct. 3, 2014) (upholding the DHO's application of code 297 over code 397 because the inmate's conduct “circumvented the staff's ability to monitor his telephone use, ” and ...


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