The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is a Report and Recommendation ("the Report") (Doc. 49), issued pursuant to 28 U.S.C. §636(b)(1)(B) by Magistrate Judge Frazier, which recommends dismissing Petitioner Torrance Jones' Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241(Doc. 1). Specifically, the Report recommends a denial of the habeas petition, concluding that Petitioner was not denied his due process during a prison disciplinary proceeding.
The Report was sent to the Parties, with a notice informing them of their right to appeal by way of filing objections by March 12, 2010. In accordance with the notice, Petitioner filed timely objections to the Report. Respondent has filed a response to those objections, standing by his argument in opposition to Petitioner's summary judgment motion. Because timely objections have been filed, this Court must undertake de novo review of the objected-to portions of the Report. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P.72(b); SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject, or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues for which specific objection has been made. Id. However, the Court need not conduct a de novo review of the findings of the Report for which no objections have been made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Instead, the Court can simply adopt those findings. For the reasons discussed herein, the Court ADOPTS the findings and recommendations of the Report.
This matter stems from a disciplinary hearing that occurred on October 23, 2006 while Petitioner was housed at FCI-Miami, Florida. Petitioner faced a disciplinary hearing due to actions filed in an incident report from August 31, 2006 involving correction officer Richard Loftus. While working on Loftus' work detail, Petitioner was sent to the special housing unit (SHU) after refusing to perform a task ordered by Loftus. Loftus escorted petitioner to the SHU but while in route to the unit, the two began exchanging words. Loftus ordered Petitioner to cuff up but Petitioner refused and Loftus attempted to gain control of Petitioner by pressing his arm against Petitioner's throat while Loftus sought to cuff Petitioner (Doc. 39 Ex. B at pp. 1, 10, 11, 15).
In response to the incident Loftus filed an incident report with two violations: assault and refusing to obey a staff order (Id. at p. 1). A disciplinary hearing was delayed while the Federal Bureau of Investigation and the United States Attorney's Office reviewed the matter for possible prosecution, but the hearing before he Unit Disciplinary Committee (UDC) was eventually held on September 20, 2006 after criminal prosecution was declined (Id. at p. 5). The committee referred the matter to the Discipline Hearing Officer (DHO).
The disciplinary hearing officer held a hearing on October 23, 2006. At that hearing, Petitioner requested a staff representative and one was appointed to him. The hearing broke until the afternoon so that Petitioner could speak with his appointed representative. Petitioner identified an inmate named Green who he wanted to use as a witness for his hearing (Id. at pp. 4-5; Doc. 50 at 26:9-27:18). Petitioner's representative met with Green and obtained his statement and Petitioner agreed to have his testimony presented through the statement rather than live testimony (Doc. 50 at 69:1-19). However, the DHO ultimately determined that Green's testimony was irrelevant as he had not witnessed the event for which Petitioner was facing charges. Instead, he testified about the relationship between Petitioner and officer Loftus. While Petitioner was not allowed to review the video tape for security reasons, his staff representative was allowed to view the video and present a statement as to the description of the video which the DHO reviewed before making her decision (Id. at 71:16- 72:10). A further description of the video was provided by Special Investigative Lieutenant Bob Wenzler which the DHO also considered (Doc. 39, Ex. B at p. 11). However, the DHO did not view the video itself on orders from her superiors (Doc. 50 at 28:16 - 29:3).*fn1 The DHO ultimately found Petitioner guilty of the charges and, as a result, Petitioner lost 14 days good time credit, spent time in disciplinary segregation, and lost several other privileges.
Petitioner filed the current habeas petition after appealing his conviction. Petitioner claims that his constitutional rights were violated in four ways:
1. Procedural due process was denied by untimely service of the incident report and untimely hearings.
2. Due process was denied when Petitioner was denied access to the surveillance video and his medical reports.
3. Due process was denied when Petitioner could not call two witnesses: Jorge Masvidal and Yve St. Hilaire.
4. The combined errors and deprivations resulted in a finding which was not adequately supported by evidence and, therefore, arbitrary. Petitioner filed a summary judgment motion (Doc. 32) which is currently pending before the Court. On December 21, 2009, Magistrate Judge Frazier held an evidentiary hearing on the issues of ability to call witnesses at the hearing and present evidence, particularly in the form of the surveillance video and medical reports. Both DHO Yida Posada and Petitioner's staff representative David Tosana testified at the hearing. Petitioner also testified.
Subsequent to the hearing, Magistrate Judge Frazier issued his Report recommending that Petitioner's habeas petition be dismissed. Judge Frazier determined that, based on the briefs and evidence presented both in written form and orally at the ...