UNITED STATES DISTRICT COURT

 DISTRICT OF OREGON

BILLY JESS BARNARD, 

 

 Petitioner, 3:15-CV-00389-SU

 

 

 v. FINDINGS AND 

 RECOMMENDATION

MARION FEATHER, 

 

 Respondent. 

 

SULLIVAN, Magistrate Judge.

Petitioner, a pre-trial detainee in the custody of the

Federal Bureau of Prisons (BOP) currently housed at the

Federal Detention Center in Sheridan, Oregon (FDC Oregon),

filed a petition under 28 U.S.C. 2241, challenging the

imposition of a disciplinary sanction. Specifically,

petitioner challenges the loss of 14 days of Good Conduct

Time, imposed by a Disciplinary Hearing Officer (DHO) after he

1 - FINDINGS AND RECOMMENDATION

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was found in violation of Code 297 - “telephone abuse.” 

Petitioner alleges that he was denied due process, that there

was no evidence that he circumvented telephone monitoring

(Code 297), and that he should be sanctioned for a lesser

offense. Petition (#1) p. 4. Petitioner further alleges an

Equal Protection violation claiming that other inmates, who

were disciplined for the same offense conduct, were only

sanctioned for the lesser (Code 397) offense. Id.

Respondent contends that the petition should be denied

because petitioner was provided due process, the DHO’s finding

was supported by some evidence, petitioner failed to exhaust

administrative remedies, and because petitioner has not

demonstrated an Equal Protection violation. Response (#6), p.

2.

The relevant facts set forth in respondent’s Response

(#6) and the Declaration of A. Griffin (#7), are undisputed1. 

In a nutshell, petitioner used another inmate’s Phone Access

Code which is not permitted to make a telephone call and was

initially charged with violating Code 397 which prohibits the

use of the telephone for abuses “other than illegal activity

which do not circumvent the ability of staff to monitor”

telephone use. The charge was later modified to a violation

1Petitioner has not filed a reply to respondent’s Response or

a brief in support of his petition.

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of Code 297 which prohibits telephone use “for abuses other

than illegal activity which circumvent the ability of staff to

monitor” telephone use. 

On November 7, 2014, the DHO held a hearing at which

petitioner admitted: “I didn’t know it was wrong. I had only

been here 3 days.” The DHO considered the written report of

the incident, as well as petitioner’s admissions, and found

petitioner had violated Code 297. As a sanction, the DHO

disallowed 14 days of Good Conduct Time, imposed 30 days phone

restriction (suspended pending 180 days clear conduct), and

imposed 30 days loss of email privilege (also suspended

pending 180 days clear conduct). 

The Declaration of A. Griffin (#7) establishes that

petitioner never filed any administrative remedy regarding the

challenged incident report. Griffin Declaration (#7). 

Petitioner admits that he missed the deadline to file an

administrative appeal and contends that he should be excused

from the exhaustion requirement because it would be futile. 

Petitioner’s argument in this regard is without merit.

Petitioner has not identified any specific procedural due

process violation, and the record reflects that he was

afforded the five basic procedural elements of the inmate

disciplinary process set forth in Wolff v. McDonnel, 418 U.S.

539 (1974).

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In order to withstand judicial review, a DHO’s decision

must be supported by “some evidence.” Superintendent

Massachusetts Correctional Institution v. Hill, 472 U.S. 445,

455 (1985). 

In this case, the DHO relied on the misconduct report

that a corrections officer observed another inmate make a

telephone call on petitioner’s behalf. Griffin Declaration

(#7) Attachment 1, p. 2. In addition, petitioner admitted

that he made a call initiated by another inmate, using the

other inmate’s PAC. Id. These undisputed facts constitute

“some evidence” to support the DHO’s decision. 

Petitioner’s allegation that other “similarly situated

inmates are routinely charged and sanctioned for the same type

of conduct as a Moderate Severity Offense [Code 397],” is

insufficient to establish an Equal Protection violation.

Although petitioner submitted an incident report issued to

another inmate for similar misconduct, in which the inmate was

charged with a Code 397 violation, Petition (#1), Att. 1-1, p.

7, “a mere demonstration of inequality is not enough; the

Constitution does not require identical treatment.” McQueary

v. Blodgett, 924 F.2d 829, 835 (9th Cir. 1979).

In order to establish an Equal Protection violation,

petitioner must demonstrate that defendants “acted with an

intent or purpose to discriminate against him based upon his

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membership in a protected class.” Serrano v. Francis, 345

F.3d 1071, 1082 (9th Cir. 2003). 

Petitioner has not demonstrated that one group is being

treated differently than another group, or that he personally

has been treated differently based upon his membership in that

group, let alone discriminatory intent. Petitioner was held

responsible for his behavior consistent with BOP regulations,

under the correct violation of Code 297. There is no evidence

that petitioner was singled out. The fact that another inmate

was found guilty of Code 397 and received a different sanction

is insufficient to establish an Equal Protection violation. 

Based on all of the foregoing, petitioner’s Petition (#1)

should be denied. The Clerk of the Court should be directed to

enter a judgment dismissing this proceeding. 

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 or appealable order. 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. Failure to timely file objections to any factual

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determinations of the Magistrate Judge will be considered a

waiver of a party's right to de novo consideration of the

factual issues and will constitute a waiver of a party's right

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's

recommendation.

DATED this 20th day of May, 2015.

 /s/ Patricia Sullivan 

 Patricia Sullivan

 United States Magistrate Judge

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