REPORT AND RECCOMENDATION

LESLIE A. BOWMAN, District Judge.

Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241, filed on December 26, 2018. (Doc. 1 p. 1) The petitioner, John Scott Allen, challenges the loss of 27 days of good conduct time after a prison disciplinary proceeding. Id.

The respondent, Warden Barbara von Blanckensee, filed a response opposing the petition on March 25, 2019. (Doc. 12) Allen did not file a reply.

Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bowman for a Report and Recommendation. The petition should be denied on the merits.

Summary of Fact

The United States District Court for the District of Minnesota sentenced Petitioner Allen to 204 months' incarceration for Bank Robbery, in violation of 18 U.S.C. § 2113(A). (Doc. 12-2 p. 3) He is currently confined at the United States Penitentiary in Tucson, Arizona. (Doc. 12-2 p. 2)

On November 20, 2018, Allen involved himself in a verbal altercation that later escalated into a fight. (Doc. 12-3 p. 10) Senior officer Gutierrez gave verbal directives to stop the fighting, but the inmates refused. Id. Gutierrez had to use pepper spray to stop the fighting. Id. Then the inmates complied and submitted to restraints. Id. Photos of Allen were taken at 11:12 a.m. on November 20, 2018. (Doc. 12-3 p. 16,17)

An advanced written notice of the charge (copy of Incident Report) was given to Allen at 1:45 p.m. on November 20, 2018 by the investigating lieutenant. (Doc. 12-3 p. 9) Allen made a comment, "That was not me, I know of the situation, but I didn't do anything." Id. On November 25, 2018, in the Unit Disciplinary Committee (UDC) hearing, Allen was advised of his rights by the Disciplinary Hearing Officer (DHO). Id. He stated that he received his rights by the UDC and understood them. Id. He waived his rights to have a staff representative or witnesses. (Doc. 12-3 p. 12)

The DHO hearing was held on December 4, 2018. (Doc. 12-3 p. 9) Allen did not request a staff representative or witnesses. (Doc. 12-3 p. 22) He stated, "I was defending myself." Id. The DHO considered Allen's statement that he was defending himself. (Doc. 12-3 p. 10) However, the DHO thought that any act of physical aggression by one inmate against another inmate is a fight. Id. Moreover, he noted that Allen involved himself in a verbal altercation before fighting. Id. The DHO considered the evidence including the photos then finally found Allen committed the prohibited act of Fighting With Another Person under Code 201. Id. His sanctions include the disallowing of 27 days of good conduct time, loss of email for 120 days and loss of visitation for 120 days. Id.

On December 19, 2018, Allen filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. 2241 challenging the loss of 27 days of good conduct time. (Doc.1, p. 1) He argues (1) he was not allowed to request witnesses and a staff representative and was not allowed to present certain evidence including video surveillance recording and another inmate's mental health issues; and (2) he was not allowed to present evidence of self-defense. (Doc. 1, p. 10)

The respondent filed an answer on March 25, 2019 in which he argues the petition should be dismissed for failure to exhaust or, in the alternative, denied on the merits. (Doc. 12) Allen did not file a reply. See (Doc. 1)

The court finds that the petition should be denied on the merits. The court expresses no opinion on the respondent's alternative arguments.

Discussion

"Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen." Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Nevertheless, prisoners do retain some constitutional rights concerning the procedures for administering prison discipline. Id. These rights are not as extensive as those due a defendant in a criminal proceeding, but they are not negligible. Id.

"Due process in a prison disciplinary hearing is satisfied if the inmate receives written notice of the charges, and a statement of the evidence relied on by the prison officials and the reasons for disciplinary action." Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987), cert. denied, 487 U.S. 1207 (1988). "The inmate has a limited right to call witnesses and to present documentary evidence when permitting him to do so would not unduly threaten institutional safety and goals." Id.

The final decision to revoke good-time credits must be based on "some evidence." Superintendent v. Hill, 472 U.S. 445, 455 (1985). "The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56. If so, then due process is satisfied. Id. The court need not examine the entire record, independently assess the credibility of the witnesses, or weigh the evidence. Id. at 455.

In Claim (1), Allen argues he was not allowed to request witnesses or a staff representative and not allowed to present certain evidence including video surveillance recording and the other inmate's mental health issues. (Doc. 1, p. 10)

Allen's claim is not supported by the record. There are no references in the DHO report to Allen's alleged evidence. On the contrary, the DHO report states that Allen did not wish to have witnesses or a staff representative or to present documentary evidence. (Doc. 12-3 p. 12) The DHO did base its finding on "some evidence" like the photos and senior officer's report. (Doc. 12-3 p. 10)

In the alternative, the court finds that even if Allen's allegations are true, and he was prevented from requesting witnesses and a staff representative and from presenting certain evidence at the hearing, he cannot establish a due process violation. A due process violation requires proof of prejudice. Watkins v. Winn, 2013 WL 6823275, at *8 (D. Ariz. 2013) ("[E]ven if a prison official's actions create a potential due process violation, a habeas petitioner needs to demonstrate that he was harmed by the violation in order to obtain relief."). Here, Allen cannot establish prejudice because he has not attached his proof to the petition. See, e.g., Lee v. Kramer, 2008 WL 4507584, at *4 (E.D. Cal. 2008) ("Petitioner has not shown prejudice resulting from the failure to call his potential witnesses, or the failure to consider his witness list, as he has not shown what the witnesses' testimony would have been or that it would have been sufficient to rebut the eyewitness account of correctional staff."), report and recommendation adopted, 2008 WL 5246383 (E.D. Cal. 2008); Aasim v. Smelosky, Warden, 2009 WL 6366617, at *2 (S.D. Cal. 2009) (similar), report and recommendation adopted sub nom. Nia v. Smelosky, 2010 WL 1626054 (S.D. Cal. 2010).

In Claim (2), Allen argues he was not allowed to present his defense of duress and self-defense. This is not supported by the evidence. See (Doc. 12-3 p. 10). Allen was permitted to present his defense and the DHO did consider it. Id. The fact that Allen involved himself in a verbal altercation first does not support his defense of duress and self-defense. See id. Moreover, Allen did not present any evidence of duress or self-defense. (See Doc. 1). Also, he did not present any evidence that he was not allowed to present evidence of those defenses in the hearing. See id.

RECOMMENDATION

The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition for writ of habeas corpus filed on December 26, 2018. (Doc. 1)

Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response.