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Heriberto Rodriguez v. Bureau of Prisons

April 1, 2011

HERIBERTO RODRIGUEZ,
PETITIONER,
v.
BUREAU OF PRISONS, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Hon. Robert B. Kugler

NOT FOR PUBLICATION

OPINION

KUGLER, District Judge

Heriberto Rodriguez filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 seeking restoration of good conduct time and telephone use privileges forfeited as disciplinary sanctions for multiple disciplinary charges. Respondents filed an Answer, together with the declaration of Tara Moran and relevant documents. For the reasons expressed below, the Court will dismiss the Petition with prejudice.

I. BACKGROUND

Petitioner challenges a series of disciplinary sanctions, which included the loss of 41 days of earned good conduct time and loss of telephone privileges from January 4, 2005, through September 27, 2012, imposed by the Bureau of Prisons ("BOP") as disciplinary sanctions while Petitioner was confined as a pretrial detainee at the Metropolitan Detention Center in Brooklyn, New York.*fn1 Petitioner argues that the BOP abused its discretion and violated Due Process by imposing multiple sanctions for the same conduct and by imposing sanctions in excess of those permitted by BOP regulations, i.e., revoking telephone privileges for over seven years.

Respondents filed an Answer, arguing that Petitioner failed to exhaust administrative remedies and that the BOP did not abuse its discretion or violate federal law. In addition, Respondents filed the declaration of Tara Moran and several documents.

The facts are undisputed. On May 19, 2006, the United States District Court for the Southern District of New York sentenced Petitioner to a 235-month term of incarceration.*fn2 The challenged sanctions arose from several incidents involving telephone abuse that occurred prior to sentencing (during the period from December 21, 2004, through July 7, 2005) while Petitioner was at the Metropolitan Detention Center in New York. The BOP found that, by making a telephone call on various dates, Petitioner committed the following disciplinary infractions:

1. On December 21, 2004, Petitioner used the PAC number of another inmate to make a telephone call after he had exhausted his allotted call time of 400 minutes on December 17, 2004. Based on his admission, the Disciplinary Committee found Petitioner guilty of Code 397, Abuse of Telephone, and sanctioned him to loss of telephone use for 180 days, effective January 4, 2005. (Docket Entry # 3-1, p.40-41.)

2. On January 5, 2005, while on telephone restriction, Petitioner used the PAC number of another inmate to place a telephone call. Based on his admission, the Disciplinary Committee again found Petitioner guilty of Code 397 and sanctioned him to loss of phone privileges for an additional nine months, ending on March 28, 2006, and loss of commissary privileges for 90 days. (Docket Entry #3-2, pp. 5-6.)

3. On January 7, 2005, while on telephone restriction, Petitioner used the PAC number of another inmate to place a call and he instructed the female who answered to send another inmate $125.00. After a hearing, the Disciplinary Hearing Officer found Petitioner guilty of Code 397 and sanctioned him to a consecutive three-year loss of telephone use. (Docket Entry #3-2, pp. 28-30.)

4. On January 9, 2005, while on telephone restriction, Petitioner used the PAC number of another inmate to place a telephone call to his mother. Based on his admission, the Disciplinary Hearing Officer found him guilty of Code 397 and sanctioned him to a consecutive loss of telephone use for 18 months, 14 day loss of good conduct time, and 21 days in disciplinary segregation (suspended pending 180 days of clear conduct). (Docket Entry #3-2, pp. 15-16.)

5. On July 7, 2005, Petitioner placed a telephone call using the PAC number of another inmate, while he was on telephone restriction. Based on his admission, the Disciplinary Hearing Officer found him guilty of Code 297 Telephone Abuse and sanctioned him to an additional two-year loss of telephone privileges (ending September 27, 2012), 30 days in segregation, 27 days of good conduct time, 120 day loss of commissary (suspended) and 150 day loss of visits (suspended pending 180 days of clear conduct.) (Docket Entry #3-2, pp. 41-42.)

Although Petitioner repeatedly attempted to exhaust administrative remedies with respect to each disciplinary sanction, he did not complete the three-tier exhaustion until 2009. In 2008, Petitioner submitted a request for administrative remedy asking the Warden to review the telephone sanction and reinstate some telephone use. (Docket Entry #3-1, p. 29.) On June 13, 2008, Warden Jerry C. Martinez denied relief. (Id., p. 30.) Petitioner appealed to the Regional Director, requesting leniency because he was charge-free for over three years and he was a pretrial detainee at the time the sanctions were imposed. (Id., p. 32.) On December 8, 2008, Regional Director D. Scott Dodrill denied the appeal, finding that Petitioner failed to present a valid reason for failing to timely appeal each sanction and that the Warden lacked the ...


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