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Eleanor Clement v. Ricardo Rios

January 26, 2011

ELEANOR CLEMENT, PETITIONER,
v.
RICARDO RIOS, RESPONDENT.



The opinion of the court was delivered by: Joe Billy Mcdade Senior United States District Judge

E-FILED

Wednesday, 26 January, 2011 10:29:55 AM Clerk, U.S. District Court, ILCD

OPINION and ORDER

Before the Court is the Petition for a Writ of Habeas Corpus (Doc. 1) and a Motion to Withdraw Detainer (Doc. 9) filed by Petitioner and Respondent's responses (Docs. 8 and 10). The Petition is DENIED WITHOUT PREJUDICE and the Motion is DENIED AS MOOT.

BACKGROUND

Petitioner currently is housed at the Pekin Federal Prison Camp and challenges the deprivation of 27 days of good conduct credit in connection with a disciplinary hearing held on January 10, 2008. Petitioner states that she was first notified of this loss of credit on August 11, 2009 and that she has exhausted all of her administrative remedies.

The disciplinary action that forms the basis of Petitioner's claim occurred while she was housed at the Federal Detention Center in Philadelphia, Pennsylvania. According to an incident report attached to the Petition, Petitioner was fighting with another person and refused to obey the orders of a correctional officer on December 14, 2007.

According to documents attached to Respondent's response, the matter was referred to the Disciplinary Hearing Officer (DHO) who held a hearing on January 2, 2008. According to the subsequent report:

The inmate was advised of her rights at the DHO Hearing and stated she was ready to proceed. The inmate had no documentation to present at the DHO Hearing. After being read the incident report by the DHO the inmate stated, We were arguing about exchange. [Officer] Akano told us to stop arguing. We did. Later [inmate] Miles called me over. I went and then she hit me. We fought, it was early to fight. Inmate made no complaints about procedural errors. (Doc. 8-1,p. 5).

In its findings, the DHO indicated that Petitioner committed the prohibited act of fighting with another person and based its decision on the observations of Correctional Officer K. Akano, who reported the incident. The DHO imposed the sentence of 30 days of segregation and the loss of 27 days of good conduct credit. The report further indicates that Petitioner was informed of her rights and that she was given a copy of the report indicating the punishment meted. Respondent also has provided the declaration of Ann Marie Poppas who states that, as the Captain's Secretary, she distributed the DHO Report to Petitioner on January 10, 2008. (Doc. 8-1, p. 4).

Also attached to the Petition is a response from the Central Office's (CO) Administrative Remedy Coordinator. Petitioner appealed the DHO decision and the appeal was received by the CO on September 21, 2009. The appeal was rejected as untimely because it was received beyond the 20 days provided by regulations.

Petitioner's only argument before this Court is that she was not notified of the DHO's decision until August 11, 2009, some 19 months after the decision was rendered. Her argument is supported by her affidavit indicating that the statements made in her Petition are true and correct.

DISCUSSION

Among the rights afforded an inmate during a disciplinary proceeding are the right to advanced written notice of the charges against her, the opportunity to call witnesses and present evidence, "a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action," and findings that are supported by "some evidence in the record." Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985). Wolff v. McDonnell, 418 U.S. 539, 563-567 (1974). These items must be afforded an inmate in order to comport with the Due Process Clause. Wolff, 418 U.S. at 556, 563-564. The purpose of providing the written statement to Petitioner indicating the reasons for the decision and the action taken are informative and to start the clock running on any appeal that may be taken. See 28 C.F.R. § 542.14(d)(2) (stating that appeals of a DHO decision should be filed with the Regional Director); § 542.15 (noting a 20 day time period ...


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