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Zuniga v. Hendrix

United States District Court, E.D. Arkansas, Eastern Division

April 9, 2019

JOSHUA ZUNIGA PETITIONER
v.
D. HENDRIX RESPONDENT

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Recommendation has been sent to Chief United States District Judge Brian S. Miller. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         The record reflects that petitioner Joshua Zuniga (“Zuniga”) was sentenced in the United States District Court for the Middle District of Georgia to the custody of the Federal Bureau of Prisons (“BOP”) for a term of forty-six months. It was recommended that he participate in the Residential Drug Abuse Program (“RDAP”) while confined.

         Zuniga came to be housed at the Federal Correctional Complex in Forrest City, Arkansas, where he participated in the RDAP. His time in the RDAP did not go well. On several occasions, he was counseled about his behavior. For example, an RDAP Administrative Note reflects the following:

Mr. Zuniga was teamed by Dap staff on 10-11-2017 for a second time for displaying manipulating behavior and continued conflict with others. This type of behavior appears to be a pattern with frequent negative interactions with his peers. Dap staff reminded Mr. Zuniga that being a part of a community takes compromise and willingness to confront and level [sic] and avoid antagonizing others for self-gratification. Mr. Zuniga's continued behavior will be monitored for improvements and he will be given treatment activities that will challenge his irrational behaviors.

See Docket Entry 14, Exhibit 4 at CM/ECF 3. Things did not improve, and Zuniga was eventually expelled from the RDAP. An RDAP Administrative Note reflects the following:

On January 11th 2018, Mr. Zuniga was expelled from RDAP for using loaded words and displaying aggressive behavior towards peers. He has had other incidents involving this same behavior towards others while in RDAP. Mr. Zuniga was advised to take advantage of resources and programs offered by the institution while he awaits to re-enter the program.

See Id. at CM/ECF 5. An RDAP Discharge Note offers additional details about his expulsion; the Note provides the following:

Inmate ZUNIGA was expelled from RDAP due to a lack of progress in treatment, a lack of displaying the attitudes of caring/honesty and being involved in various verbal confrontations with other RDAP participants that could have escalated if staff and/or his peers did not intervene.
He has been seen by the treatment team on more than one occasion to discuss this behavior. He has demonstrated a pattern of dishonesty, sentimentality and/or mollification when addressed by staff and has received redirection for this behavior.
However, he has not exhibited significant improvement and his behavior has negatively impacted other RDAP participants. He is aware that he may reapply for RDAP in 90 days.

See Id. at CM/ECF 4. A Change in RDAP and Section 3621(e) Status form was prepared by an RDAP Coordinator on the day of Zuniga's expulsion. In the form, the Coordinator represents that he had the following discussion with Zuniga:

I/M Zuniga accused of loaded words toward his peers and displayed aggressiveness with his peers. Inmate stated, “I may have been accused of hitting my cellmate.” I/M denied all accusations. However, later admitted bad words and aggressive behavior. I/M continued to minimize and lack receptiveness to treatment as he did not believe his behavior was an issue due to “no one ...

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