Diaz v. Gunther

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Facundo Sebastian Diaz,
Petitioner,
v.
Jason Gunther, Warden FCI Phoenix,
Respondent.
No. CV 24-03210 PHX KML (CDB)
REPORT AND
RECOMMENDATION
TO THE HONORABLE KRISSA M. LANHAM:
Petitioner Facundo Diaz, who is incarcerated at the Federal Correctional Institution
in Phoenix, Arizona, seeks relief pursuant to 28 U.S.C. § 2241. Diaz, who proceeds pro se,
asks the Court to order Respondent to expunge an incident report from his record and
reverse sanctions imposed as a result of the adjudication of the incident report.
I. Background
Diaz challenges a disciplinary proceeding, and the resulting imposition of sanctions,
regarding Incident Report No. 3857058; at the time of the subject incident Diaz was
incarcerated at the Federal Correctional Institution in Yazoo City, Mississippi. (ECF No. 1
at 2, 13).1 The basis of the charge was as follows: “On November 21, 2023, at
approximately 10:05 a.m. SIS staff was conducting a walk through in Charlie 1 unit. In
cubicle 63 staff noticed wires similar to charging cords inside the wall. Inmates Diaz …
and [redacted] occupy cubicle 63.” (ECF No. 1 at 13).
1 Diaz asserts the following sanctions were imposed: loss of 41 days of good time credits,
seven days of disciplinary segregation, loss of commissary privileges for 365 days, and loss of 41
days of First Step Act (“FSA”) earned time credits. (ECF No. 1 at 2).
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A copy of the Incident Report Investigation states: “Incident report process delayed
due to institutional emergency.” (ECF No. 1 at 15). After the investigation was completed
the matter was referred to a Detention Hearing Officer (“DHO”) for a hearing. (ECF No. 1
at 14). Diaz was informed of the hearing, and his rights regarding the hearing, on
November 24, 2023. (ECF No. 1 at 15-16). A hearing was conducted on November 30,
2023, before the DHO. (ECF No. 1 at 16). Diaz waived his right to have a staff
representative at the hearing, but he did not waive his right to present a witness. (ECF No. 1
at 16, 17). Diaz denied the charge, stating: “I’m innocent. We were told to move into that
room. Staff broke the plaster on the wall. Not us. We didn’t know it was there.” (ECF No. 1
at 16). Diaz called his cellmate as a witness and the cellmate stated the wires must have
been in the wall before Diaz moved into the cell. (ECF No. 1 at 17).
The DHO found the subject “act was committed as charged.” (Id.). The DHO also
found:
… [Diaz] received a copy of the report beyond the normal timeframe. As you
received a copy of the report and a timely UDC hearing, the DHO did not see
the delay as adversely affecting you or preventing you from being able to
prepare a defense. The DHO informed you that your due process rights
(Wolff rights) were not violated, as you did receive a copy of the report 24
hours prior to this hearing.
Your due process rights were reviewed with you. You indicated that you
understood your rights.
You confirmed to the DHO that you received a copy of the incident report
and presented a written statement for review. You requested a witness and
no staff representative. You did not raise any objections to the discipline
process prior to or during your appearance before the DHO. You indicated
that you were ready to proceed with the hearing.
(Id.).
In a decision issued December 7, 2023, the DHO found Diaz had committed the
prohibited act of “Disruptive Conduct Most Like Possession of a Hazardous Tool, Code
199-108.” (ECF No. 1 at 18-19). With regard to the evidence supporting the finding, the
DHO noted photographs of “cellphone charging cords which have been attached to
electrical wires in your assigned cubicle 63,” and the statements of the reporting officer.
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(ECF No. 1 at 18). The DHO noted Diaz had been assigned to the cubicle since September
of 2023. (Id.).
Diaz contends he filed an appeal in the United States Bureau of Prisons (“BOP”)
Southeast Regional Office, regarding a “[f]ailure to follow disciplinary proceedings.” (ECF
No. 1 at 2). In a document in that appeal, dated January 1, 2024, Diaz asserted there was a
“lack of evidence” that he or his cell mate possessed “any tools used to perform such a task
as connecting electrical wires,” noting their lockers and personal belongs were searched
but no such tools were found. (ECF No. 13-5 at 2). He also noted there was a “camera on
the entrance of the unit point[ing] directly towards my cell and could easily spot if my cell
mate and/or I were doing anything remotely similar as to be putting charging wires on the
wall.” (Id.).
A “Rejection Notice” dated January 25, 2024, regarding Remedy ID 1188043-R1
per Incident Report 3857058, advised Diaz’s regional appeal was rejected because it was
untimely, having been received on January 23, 2024. (ECF No. 13-5 at 1). The notice
advised that a regional appeal “must be received within 20 days of the … receipt of the
DHO report.” (Id.). The appeal was also rejected due to the absence of any “staff
verification stating reason untimely filing was not [Diaz’s] fault.” (ECF No. 1 at 21).
Diaz filed an appeal in the BOP Southeast Regional Office, Remedy ID 1188043-
R2, on or about March 7, 2024. (ECF No. 13-6 at 1). With regard to the untimely filing of
this appeal, Diaz averred his unit manager had advised him that he did not need a staff
verification regarding the untimely filing. (ECF No. 13-6 at 2). Diaz asserted that before
the “appeal time expired on December 28, 2023,” he “sent a letter to Regional, along with
[his] DHO and incident report, both originals.” (Id.). He alleged his unit manager and
counselor did not provide him with the appeals form (“BP-10”) although he requested the
form “numerous times.” (Id.). Diaz noted that when he requested the BP-10, he was in the
Special Housing Unit (“SHU”). (ECF No. 13-6 at 3). Diaz maintained he did not receive
the rejection notice until March 3, 2024, after the time to appeal the decision expired. (Id.).
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With regard to the actual incident, Diaz noted that on November 21, 2023,
… there was a cable running inside the wall right next to a column inside our
cell. There was no possible way for us to know those cables were there. The
cables were hidden by caulk, paint, and mortar. … Staff poke[d] through the
wall with tweezers and found them hidden inside the wall, they were not
visible at all. No tools were found in both our lockers that indicated we had
access or means to accomplish such a thing. Nothing that was hazardous to
the institution [sic] security or personal safety nor electronic devices was
found in our property. …
(Id.).
In a Rejection Notice dated March 13, 2024, regarding a regional appeal in Remedy
No. 1192783-R1, which the Southeast Regional Office Administrative Remedy
Coordinator had received on December 29, 2023, Diaz was advised his appeal was rejected
because the appeal was not presented on the proper form, i.e., the BP-10, and advised Diaz
he could “resubmit” his appeal “in proper form within 10 days of the date of this rejection
notice. (ECF No. 13-7).
A Rejection Notice dated March 19, 2024, in Remedy No. 1188043-2, found Diaz’s
appeal was untimely, but allowed Diaz to “provide staff verification stating reason
untimely filing was not your fault.” (ECF No. 1 at 26).
Diaz appealed the Regional Office’s decision on or about June 4, 2024. (ECF No.
13-8 at 2). Diaz asserted:
This Central Office Administrative Remedy Appeal is being
submitted in accordance with 28 CFR § 542.17(c), which permits an inmate
to appeal a rejection of any submission made at the lower level. In this case,
the Southeast Regional Director rejected my BP-10 on the basis that they
claimed the filing of the BP-10 was untimely, despite the fact that I provided
a statement as to why the document was filed late. I specifically advised the
Southeast Regional Director that I was in the Special Housing Unit (“SHU”)
and that staff repeatedly refused to provide me with a BP-10 form.
Additionally, I sent a letter to the Regional Director articulating all of the
attempts that I made to gain access to the BP-10 form and the Southeast
Regional Director refused to review the information. This appeal now
follows, and is the final step before proceeding with formal court action.
This Appeal is in reference to Discipline Hearing Officer (“DHO”)
Report Number 385, which was issued by staff at FCI Yazoo City. The
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Incident Report alleged that I committed a violation of Prohibited Act Code
(“PAC”)—Disruptive Conduct, most like PAC 108—Possessing a
Hazardous Tool. Specifically, the Incident Report alleged that there were
charging cables in the wall of the cube in which I was assigned to. it was
further alleged that SIS Technicians found the cables during a “walk
through”, although that statement is patently false. In contrast, the SIS
Technician found the cables during a targeted search of the unit.
During the hearing, I testified that I had recently moved into that cube
and that I had no knowledge that the cables were even inside of the wall.
Furthermore, there is no evidence, or even suggestion, that I was using the
cables or that I had ever actually possessed the cables. The ‘‘possession” of
the cables is critical to this Incident Report because I should not be
disciplined for possessing something that I never even possessed.
In addition, the Incident Report was not completed properly. Specifically, the
staff member who delivered the report did not sign, date or place the time on
the report, verifying the service of said report. This is in direct violation of
Program Statement 5270, and 28 CFR § 541.5.
Next, it is important to note that the DHO had already made a decision
as to my guilt prior to the hearing. This is evidenced by the fact that she called
me and my former roommate to a joint hearing and said “which one of you
are going to take it? Or, you both are going to take it.'’ This statement shows
her clear intention that somebody was being found guilty of the Incident
Report and this action negates the very idea of a fair and impartial hearing,
as required by the Due Process Clause.
Finally, the Incident Report was not timely served on me. Program
Statement 9270 and 28 CFR § 541.5 clearly requires that an Incident Report
be WRITTEN and SERVED upon an inmate within 24 hours of the violation
becoming known by staff. I was not served until four (4) days after the
incident was regent This violation is a clear-cut violation and cannot be
permitted to stand.
For the above and foregoing reasons, and in reliance upon the record,
I am requesting that the Incident Report be expunged from my record; that
the imposed sanctions be lifted; that the good time previously withheld be
restored; and that any further relief be provided as deemed appropriate.
(ECF No. 13-8 at 3).
In a Rejection Notice dated July 10, 2024, with regard to Remedy ID 1188043-A1,
the BOP Administrative Remedy Coordinator Central Office advised Diaz’s “Central
Office Appeal” was rejected. (ECF No. 13-8). The Central Office had received the appeal
on June 17, 2024. The notice indicated the subject of the appeal was: “DHO Appeal –
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Combined (Procedures, Evidence & Sanctions).” (Id.). The appeal was rejected because
the Central Office “Concur[red] with rationale of regional office and/or institution for
rejection …” (Id.).
In his § 2241 petition Diaz contends he was not afforded due process in the
disciplinary proceedings regarding Incident Report No. 3857058. Diaz asserts the charge
giving rise to the incident report, i.e., possession of a hazardous tool, “was not supported
by the evidence in the record.” (ECF No. 1 at 7). He further asserts the “incident report did
not contain the required information;” Diaz asserts three of the “blocks” on the incident
report were not “completed.” (Id.). He further alleges the incident report was not “timely
served” on him because it was not served “within 24 hours of the staff member becoming
aware of the alleged incident,” “as required by the Code of Federal Regulations.” (Id.).
Diaz asserts the staff member filing the report became aware of the infraction at 10:05 a.m.
on November 21, 2023, and he was not served with the report until 7:30 p.m. on
November 24, 2023. (ECF No. 1 at 7, 9). Addressing Respondent’s claim that “there was
no adverse affect” arising from the late notice, Diaz argues “the degree of adverse affects
does not matter” because his due process rights were violated notwithstanding any adverse
effect. (ECF No. 1 at 10). Diaz asserts all of his stated grounds for § 2241 relief “were
addressed at all four levels of the Respondent’s Administrative Remedy Program (ARP)
process.” (ECF No. 1 at 11).
II. Relief Pursuant to § 2241
Habeas corpus relief extends to a person in custody under the authority of the United
States. See 28 U.S.C. § 2241. Relief is available if a federal prisoner can show they are “in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). Section 2241 provides a potential avenue of relief when an inmate raises
claims concerning the duration or execution of their sentence. See, e.g., Nettles v. Grounds,
830 F.3d 922, 927 (9th Cir. 2016); Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991).
The Court has jurisdiction over a § 2241 petition filed by a federal prisoner when the
prisoner asserts they have been denied due process in a disciplinary proceeding resulting
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in the loss of good time credit. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.
2000), cited in Ellis v. Von Blanckensee, No. 20-cv-00139, 2022 WL 672673, at *2 (D.
Ariz. Mar. 7, 2022). See also Hall v. Sanders, 540 F. App’x 754, 755 (9th Cir. 2013);
Lathan v. Marshall, 977 F.2d 589 (Table), 1992 WL 258903, at *1 (9th Cir. 1992); Green
v. Ryan, No. 16-cv-0454, 2016 WL 7206701, at *3 (D. Ariz. Oct. 25, 2016). Because the
claims raised by Diaz implicate his right to due process and the deprivation of good time
credits, the Court has jurisdiction over Diaz’s claims for relief pursuant to § 2241.
III. Exhaustion
The exhaustion requirement applicable to § 2241 petitions is judicially created,
rather than a statutory requirement. See Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990),
overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54-55 (1995). As a prudential
matter, the federal courts generally require habeas petitioners to exhaust all available and
administrative remedies before seeking relief under § 2241. E.g., Ward v. Chavez, 678 F.3d
1042, 1045 (9th Cir. 2012). The Court may require prudential exhaustion if agency
expertise makes agency consideration necessary to generate a proper record and decision;
if relaxation of the exhaustion requirement would encourage the deliberate bypass of the
relevant administrative scheme; or if any further administrative review is likely to result in
the agency correcting its own mistakes thereby precluding the need for judicial review.
See, e.g., Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017). The Court may waive
the exhaustion requirement “where administrative remedies are inadequate or not
efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury
will result, or the administrative proceedings would be void.” Laing v. Ashcroft, 370 F.3d
994, 1000 (9th Cir. 2004) (citation omitted). When exercising its discretion in this context
the Court should consider primarily whether “relaxation of the requirement would
encourage the deliberate bypass of the administrative scheme[.]” Id.
The BOP’s inmate discipline process usually begins when a staff member issues an
inmate an incident report, based on the staff member’s observation or reasonable belief that
the inmate committed a prohibited act. See 28 C.F.R. § 541.5. The incident report describes
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the incident and is usually delivered to the inmate within 24 hours of staff learning of the
incident. Id. A staff member investigates the incident and informs the inmate of the charge
and of the inmate’s right to remain silent. Id. During the investigation, the inmate may
make a statement and request that the investigator interview witnesses or request that other
evidence be obtained and reviewed. Id.
After the investigation is complete, the Unit Disciplinary Committee (“UDC”)
reviews the incident report. See 28 C.F.R. § 541.7. The inmate may appear before the
Committee and may make a statement and present documentary evidence. Id. The
Committee automatically refers the incident report to a DHO if the inmate is charged with
a “Greatest” or “High” severity prohibited act or if the inmate is subject to the loss of good
conduct sentence credit as a mandatory disciplinary sanction. Id.
After an incident report is referred to the DHO, the officer conducts a hearing. See
28 C.F.R. § 541.8. The DHO is an “impartial decision maker,” who was not “a victim,
witness, investigator, or otherwise significantly involved in the incident.” Id. The inmate
receives written notice of the charge at least 24 hours before the hearing. Id. The inmate
may request a staff representative to help them understand the charge and the proceedings
and to assist them before and during the hearing. Id. The inmate is permitted to appear at
the hearing, unless the hearing officer determines the inmate’s appearance would
jeopardize institution security. Id. The inmate may make a statement and present
documentary evidence at the hearing. Id.
After the hearing, the DHO may find that the inmate committed the charged
prohibited act charged or a similar prohibited act described in the incident report; or find
the inmate did not commit the prohibited act; or refer the incident back for further
investigation, review and disposition. See 28 C.F.R. § 541.8(a). The findings will be based
on “at least some facts, and if there is conflicting evidence, on the greater weight of the
evidence.” 28 C.F.R. § 541.8(f). The DHO provides the inmate a written copy of the
decision, and the decision must include a statement of whether the inmate was advised of
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his rights; the evidence relied upon; the decision; the sanction imposed; and the reason for
the specific sanction. 28 C.F.R. § 541.8(h).
The BOP has established an Administrative Remedy Program “to allow an inmate
to seek formal review of an issue relating to any aspect of his/her own confinement.”
28 C.F.R. § 542.10(a). The formal grievance system under the Administrative Remedy
Program consists of three levels of review. Id. §§ 542.14 & 542.15. At the first level of
review an inmate submits a formal Administrative Remedy Request to the warden within
twenty calendar days following the date on which the basis for the request occurred. If the
inmate is dissatisfied with the warden’s response, the inmate may submit an appeal on a
BP-10 form to the appropriate Regional Director within twenty calendar days of the date
the warden’s response was signed. An inmate who is not satisfied with the Regional
Director’s response may appeal that decision to the General Counsel within thirty calendar
days of the date the Regional Director rejected relief. Id. § 542.15(a). The appeal to the
General Counsel completes the administrative remedy process.
Diaz arguably exhausted, or attempted to exhaust, his administrative remedies, with
his appeal being rejected at the lower levels of appeal on procedural grounds, although it
was ultimately being rejected on the merits by the Office of General Counsel. Diaz
experienced difficulty in the appeals process arising from his confinement in disciplinary
segregation as a result of the imposed sanctions and his inability to acquire the requisite
appeal forms from prison staff. Additionally, the record does not indicate that any
“relaxation” of the exhaustion requirement in this instance would encourage the deliberate
bypass of the administrative scheme, given Diaz’s diligent efforts to engage in the subject
administrative scheme.
Furthermore, the factual record in this matter is adequately developed. Accordingly,
prudence does not require a further examination of exhaustion or procedural default. See
Johnston v. Colbert, No. 22-cv-0260, 2023 WL 9510557, at *3 (D. Ariz. Aug. 15, 2023),
report and recommendation adopted, 2024 WL 418123 (D. Ariz. Feb. 5, 2024) (excusing
an inmate’s failure to exhaust in a § 2241 action where the petitioner was seeking relief
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with respect to the application of FSA time credits and “the factual record is adequately
developed, and nothing in the record suggests that further administrative review would aid
judicial review.”). See also Martinez v. Gutierrez, No. 22-cv-00505, 2023 WL 6466490, at
*3 (D. Ariz. July 14, 2023), report and recommendation adopted, 2023 WL 6464850 (D.
Ariz. Oct. 4, 2023).
It is also noted that any dismissal of Diaz’s claims for failure to exhaust would be
without prejudice, and Diaz’s claims may be denied with prejudice because the Diaz was
not denied his right to due process.
IV. Analysis of Claims for Relief
Federal prison inmates have a liberty interest in good conduct time protected by
their right to due process. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974); Davis v.
Small, 595 F. App’x 689, 691 (9th Cir. 2014); Serrano v. Francis, 345 F.3d 1071, 1078
(9th Cir. 2003). However, “[p]rison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in [criminal] proceedings does
not apply” in the prison context. Wolff, 418 U.S. at 556. In a prison disciplinary hearing
involving potential disciplinary sanctions impacting a protected liberty interest, an inmate
is entitled to: (1) written notice of the charges and a sufficient amount of time after the
notice is received, i.e., no less than 24 hours, for the inmate to prepare for the appearance;
(2) a written statement by the DHO or other fact-finder as to the evidence relied on and
reasons for the disciplinary action; (3) the inmate must be allowed to call witnesses and
present documentary evidence in their defense when permitting them to do so will not be
unduly hazardous to institutional safety or correctional goals; (4) the inmate must be
offered assistance at the hearing by staff or a sufficiently competent fellow inmate if the
inmate is illiterate or the issue sufficiently complex; and (5) an impartial factfinder. Id. at
563-72. See also Zimmerlee v. Keeny, 831 F.2d 183, 186 (9th Cir. 1987). Due process
requires that the decision-maker must be “sufficiently impartial.” Wolff, 418 U.S. at 570-
72. A DHO is “an impartial decision maker” if they are “not a victim, witness, investigator,
or otherwise significantly involved in the incident.” 28 C.F.R. § 541.8(b).
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Additionally, the evidentiary burden delineated in Wolff is “satisfied if some
evidence supports the decision by the prison disciplinary board.” Superintendent,
Massachusetts Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985) (“Hill”). “Ascertaining whether
this standard is satisfied does not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of the evidence.” Id. Instead, the
Court must ask whether there is any evidence in the record that could support the
conclusion reached by the disciplinary body. Id. at 455-56. This “standard is minimally
stringent[,]” requiring only “some evidence” to support the final determination of guilt. See
Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (noting that although the Court in Hill
characterized the evidence as “meager,” it “found the record not so devoid of evidence that
the findings of the disciplinary board were without support or otherwise arbitrary.”
(internal quotations omitted)). See also Howard v. Copenhaver, No. 14-cv-00373, 2015
WL 404092, at *5 (E.D. Cal. Jan. 28, 2015) (“The some evidence standard is a low
threshold, and will be met even when evidence to the contrary is presented.”). The “relevant
question is whether there is any evidence in the record that could support the conclusion
reached by the disciplinary board.” Hill, 472 U.S. at 455-56. “The fundamental fairness
guaranteed by the Due Process Clause does not require courts to set aside decisions of
prison administrators that have some basis in fact.” Id. at 456. A federal court may overturn
the prison administrative decision only if no reasonable adjudicator could have found the
defendant guilty of the offense based on the evidence presented to the adjudicator.
Henderson v. United States Parole Comm’n, 13 F.3d 1073, 1077 (7th Cir. 1994). Notably,
in examining the record, a federal habeas court is not to make its own assessment of the
credibility of witnesses or reweigh the evidence. Hill, 472 U.S. at 455. Moreover, “[a]
habeas claim cannot be sustained based solely upon the BOP’s purported violation of its
own program statement because noncompliance with a BOP program statement is not a
violation of federal law.” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). See also
Smith v. Apker, No. 11-cv-328, 2014 WL 1515145, at *5 (D. Ariz. Apr. 18, 2014) (“a
violation of a Bureau of Prisons’ regulation does not rise to a due process violation”).
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With regard to Respondent’s assertion that “there was no adverse affect” arising
from the late notice, Diaz contends “the degree of adverse affects does not matter” and his
due process rights were violated notwithstanding any adverse effect. (ECF No. 1 at 10).
Contrary to Diaz’s assertion, to be entitled to relief on a claim that a prisoner’s due process
rights were violated in the context of a disciplinary proceedings, the prisoner must establish
prejudice arising from the prison official’s error. See Tien v. Sisto, No. 07-cv-02436, 2010
WL 1236308, at *4 (E.D. Cal. Mar. 26, 2010) (“While neither the United States Supreme
Court or the Ninth Circuit Court of Appeals has spoken on the issue, numerous federal
Courts of Appeals, as well as courts in this district, have held that a prisoner must show
prejudice to state a habeas claim based on an alleged due process violation in a disciplinary
proceeding.”); Adams v. Federal Bureau of Prisons, No. 11-cv-2862, 2011 WL 7293381,
at *2 (D. Minn. Dec. 6, 2011) (“On a repeated and consistent basis, federal courts hold that
in prison disciplinary cases, ‘[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.’” (citation omitted)), report and recommendation
adopted, 2012 WL 503798 (D. Minn. Feb. 14, 2012).
Diaz asserts the charge giving rise to the incident report, i.e., possession of a
hazardous tool, “was not supported by the evidence in the record.” (ECF No. 1 at 7). He
further asserts the “incident report did not contain the required information,” i.e., that three
of the “blocks” on the incident report were not “completed.” (Id.). As noted supra, the
quantum of evidence required by Wolff is low, i.e., there must only be “some evidence.”
This standard was met by the DHO’s finding that there was photographic evidence of the
violation, the officer’s observations, and the evidence that Diaz had resided in the cell for
two months prior to the violation. Although Diaz testified that he was unaware of the
presence of the electric cords, it is not the province of the federal court to re-weigh evidence
or assess the credibility of witnesses. The “some evidence” standard is a low threshold and
should only be overturned if no reasonable adjudicator could have found the inmate guilty
of the offense on the basis of the evidence presented. Henderson, 13 F.3d at 1077. See also
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Carlucci v. Shartle, No. 18-cv-00051, 2019 WL 1473316, *3 (D. Ariz. Jan. 2, 2019), report
and recommendation adopted, 2019 WL 1469165 (D. Ariz. Apr. 2, 2019), aff’d sub nom.
Carlucci v. Blanckensee, 785 F. App’x 443 (9th Cir. 2019). A reasonable adjudicator could
find Diaz guilty of the offense on the basis of the evidence presented at the disciplinary
hearing. See Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994), 824 F.2d at 705.
Diaz alleges the incident report was not “timely served” on him “within 24 hours of
the staff member becoming aware of the alleged incident,” “as required by the Code of
Federal Regulations.” (ECF No. 1 at 7). However, due process requires only that the
incident report be served on the inmate at least twenty-four hours prior to the disciplinary
hearing, to allow the inmate adequate time to prepare for the hearing. Diaz does not dispute
that was served with the report on the evening of November 24, 2023, and the hearing was
conducting November 30, 2023. (ECF No. 1 at 7, 9). Although the Code of Regulations
states that inmates will “ordinarily receive the incident report within 24 hours of staff
becoming aware of [the inmate’s] involvement in the incident,” 28 C.F.R. 541.5(a), this
regulation does not define the parameters of the inmate’s due process rights as compared
to the holdings of the United States Supreme Court in Wolff. Moreover, to the extent Diaz
alleges a BOP policy or program statement governs, “[p]rogram statements are internal
agency guidelines that may be altered by the BOP at will,” Reeb, 636 F.3d at 1227
(quotations and citations omitted), and do not define the parameters of an inmate’s due
process rights. Because Diaz was served with the incident report at least twenty-four hours
prior to the hearing, his due process rights were not violated with regard to the time of the
service of the incident report. Diaz alleges that the incident report was not complete
because several “blocks” were not completed, but the record indicates all of the information
necessary to satisfy the elements of due process stated in Wolff were contained in the
incident report.
V. Conclusion
The due process requirements delineated by Wolff were met with regard to Diaz’s
disciplinary proceedings. Additionally, “some evidence” supports the DHO’s findings and
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“the record is not so devoid of evidence” that the DHO’s findings could be found to be
“without support or otherwise arbitrary.” Hill, 472 U.S. at 457.
Because Diaz is not being held in custody in violation of the laws of the United
States or in violation of his Constitutional rights, relief pursuant to § 2241 is precluded.
Accordingly,
IT IS RECOMMENDED that Ramos’s § 2241 petition at ECF No. 1 be denied.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the District Court’s judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from the date of service of a copy of this recommendation within which
to file specific written objections with the Court. Thereafter, the parties have fourteen (14)
days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the
Local Rules of Civil Procedure for the United States District Court for the District of
Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in
length. Failure to timely file objections to any factual or legal determinations of the
Magistrate Judge will be considered a waiver of a party’s right to de novo appellate
consideration of the issues. See United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003) (en banc).
Dated this 3rd day of December, 2025.
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