Opinion
Civil Action 6:21-3235-HMH-KFM
01-10-2022
Difankh Asar, Petitioner, v. N. Barnes, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the respondent's motion to dismiss or, in the alternative, for summary judgment (doc. 8). The petitioner, a federal prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district court.
I. FACTS PRESENTED
The petitioner is currently incarcerated at Federal Correctional Institution Bennettsville ("FCI Bennettsville") (doc. 1 at 1). On April 20, 2021, Officer Childers at FCI Bennettsville completed an incident report regarding the petitioner allegedly violating Prohibited Act Code 104, Possessing a Dangerous Weapon (doc. 8-1 at 2). Officer Childers stated as follows in the incident report:
On 04/20/2021 at approximately 14:20, I Officer Childers was conducting a random cell search in cell 105 in A3 housing unit that houses inmate, Difankh, Asar, #20694-171 and inmate [redacted]. While conducting] the random search, I lifted the mattress on the top bunk of the bunk bed and when I did, I found a silver locked lock with two gray laundry straps attached to the locker lock. When I asked the inmates about the item, Inmate Asar #20694-171 stated it was his and that the locker lock is "no good". When I told the inmate that he would be receiving an incident report about this, he stated that is some
"petty shit". Activities Lieutenant was notified about this incident.(Id.). The incident report reflects that Lieutenant Lucas delivered the incident report to the inmate on April 20, 2021, and advised the petitioner of his rights on the same day (id. at 2, 4). The petitioner stated, "It is mine but it is not a weapon . . ." (id. at 2).
A Unit Discipline Committee ("UDC") hearing was held on April 21, 2021 (doc. 8-1 at 3). During the UDC hearing, the petitioner stated, "I didn't have a weapon. It's BOP items and I didn't get a copy of the incident report" (id.). The UDC chairperson documented that she provided the petitioner with a copy of the incident report during the hearing (id.). The petitioner, however, alleges that the UDC chairperson told him that she could not give him a copy of the incident report but would allow him to see her copy during the UDC hearing (doc. 10 at 2-3). The incident was ultimately forwarded to the Disciplinary Hearing Officer ("DHO") for further processing (doc. 8-1 at 3).
On April 21, 2021, the petitioner was given a "Notice of Discipline Hearing Before the (DHO)" form (doc. 8-1 at 5). The petitioner signed the form on the same day and indicated that he did not wish to have a staff representative (id.). The petitioner did, however, request an inmate witness (id.). The petitioner was also given a form advising him of his rights at the DHO hearing, which he acknowledged with his signature on April 21, 2021 (id. at 6). On the form, the petitioner wrote, "I need a copy of 24-hour notice of charge" (id.).
The DHO hearing was initially scheduled for April 28, 2021, via video conference (docs. 8-2, Lupotsky decl. ¶¶ 3-4; 1-1 at 2). The respondent has submitted a declaration from the DHO, who provided that the petitioner appeared before him and stated that he was never provided with a copy of the incident report and could not prepare a defense (doc. 8-2, Lupotsky decl. ¶ 4). The DHO testified that he "e-mailed the incident report to Lieuten[]ant Lopez while we were on the videoconference and directed him to print it and provide [the petitioner] with a copy" (id. ¶ 6). Moreover, the DHO further submitted that "[w]hile on the videoconference, I watched Lieutenant Lopez print and provide [the petitioner] the copy of the incident report" (id. ¶ 7). The DHO then "decided to postpone the hearing to ensure his rights were protected" (id. ¶ 5). However, the petitioner submits that the DHO did not email the incident report to Lieutenant Lopez and Lieutenant Lopez never gave him a copy of the incident report (doc. 10 at 1, 3).
On May 5, 2021, the rescheduled DHO hearing was held (doc. 8-1 at 7). The DHO noted in the DHO report that the petitioner had received a copy of the incident report and read the report to him at the hearing (id. at 7, 9). The petitioner, however, alleges that he told the DHO that he had not received a copy of the incident report from Lieutenant Lopez (doc. 10 at 3). The DHO report reflects that the petitioner stated that he understood his rights before the DHO and requested one inmate witness (doc. 8-1 at 8). The witness appeared at the hearing and made the following statement: "I was in the cell, my celly wasn't in there. He came in the unit from the yard and went into the shower. The officer went into the cell and found the contraband" (id.) The DHO asked the witness if he observed the petitioner's lock on the locker, and the witness stated that he did not know (id.). The petitioner denied the charge and was provided an opportunity to make a statement (id. at 7). The petitioner stated, "That wasn't mine. I wasn't even in the cell when they found it. The lock is mine, I took it off my locker and went to go get a shower" (id.).
The DHO found that the petitioner committed the prohibited act as charged (id. at 8). The DHO set out the specific evidence relied on, including the reporting officer's written statement, photographs of the weapon, and the witness' statement conflicting with the petitioner's statement (id. at 8-9). The DHO further found as follows:
The DHO considered your statements and defense, the statements provided by your witness, some facts and the evidence presented. The DHO concludes; You were found to be in possession of a homemade weapon fashioned from a piece of woven fabric with a combination lock attached to it. These type items are commonly used in this environment as
weapons by swinging a small weighted object thus striking opponents. There are photographs of the weapon. You stated that the weapon was not yours. That you removed your lock from your locker and set it down, went into the shower and that is when the weapon was recovered by the officer. Your witness stated that you never entered your cell and instead came into the unit from the yard and went directly into the shower. You stated that your witness was "a damn liar." According to Officer Childers report, you stated that the weapon was yours. Your cell mate and witness did not corroborate your defense. You provided conflicting statements which greatly diminishes your credibility. This leads the DHO to consider your statements to be, unreliable. You are ultimately responsible for maintaining a contraband free area of your domain. Other than denying the charge, you did not provide the DHO with any substantive evidence to support that you were not in possession of a weapon. Possessing a weapon is prohibited and will not be tolerated.(Id.). The DHO sanctioned the petitioner to disallowance of 41 days good conduct time ("GCT"), 20 days disciplinary segregation, and loss of six months of visitation and commissary privileges (id. at 9). The DHO also explained the reasoning for the sanctions as follows:
The action/behavior on the part of any inmate to possess a weapon can lead to serious injury to both parties, as well as staff. Having an item such as this has the potential to escalate a situation into a major confrontation between inmates and staff, thereby threatening the security and orderly running of the institution and makes it difficult to provide security for all concerned. The sanctions imposed by the DHO were taken to express that you will be held responsible for your actions/behavior at all times.
Placing you in disciplinary segregation was imposed as punishment. The disallowance of good conduct time was imposed because you were sentenced under the Prison Litigation Reform Act (PLRA) which mandates the disallowance of good conduct time per policy. The loss of commissary and visiting sanctions were imposed to deter misconduct.(Id.).
The DHO report was completed on May 10, 2021, and a copy was provided to the petitioner on June 8, 2021 (doc. 8-1 at 10). The petitioner filed an appeal to the Regional and Central Offices, Remedy ID No. 1083423, and both offices upheld the disciplinary action (id. at 11-20). The petitioner's current projected release date, with consideration for GCT, is July 14, 2023 (doc. 8-1, Carter decl. ¶ 3).
II. FEDERAL PETITION
On October 5, 2021, the petitioner filed the instant § 2241 petition, alleging that his due process rights were violated because (1) he did not receive written notice of the charge against him within 24 hours of the DHO hearing held on April 28, 2021, or the DHO hearing held on May 5, 2021; and (2) the deadlines for a response to his appeals were not honored (doc. 1 at 6). The petitioner seeks a reversal of the DHO's decision, expungement of this charge from his disciplinary history, restoration of his 41 days GCT, and reinstatement of his visitation and commissary privileges (id. at 7).
On December 2, 2021, the respondent filed a motion to dismiss or, in the alternative, for summary judgment (doc. 8). On the same day, by order filed pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately (doc. 9). On December 13, 2021, the petitioner filed a response (doc. 10). This matter is now ripe for review.
III. APPLICABLE LAW AND ANALYSIS
A. Legal Standard
The respondent has moved to dismiss the petition or, in the alternative, moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 (doc. 8). As matters outside the pleadings have been presented to and not excluded by the court (see docs. 8-1; 8-2), the motion to dismiss will be treated as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(d). Rule 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id.
B. Due Process
As set out above, the DHO imposed sanctions on the petitioner that included loss of GCT (doc. 8-1 at 9). A prisoner has due process rights regarding his GCT, which implicate a protected liberty interest. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). In disciplinary proceedings that may result in the loss of GCT credit, an inmate has a right to advance written notice of charges at least 24 hours before the hearing; to a fair and impartial tribunal; to call witnesses and to present documentary evidence in his defense; to receive a written statement explaining the tribunal's findings; and, "[w]here an illiterate inmate is involved. . . or . . . the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case," to seek the aid of a fellow inmate or prison staff. Id. at 563-70. In addition, a disciplinary decision implicating a prisoner's liberty interest must be supported by at least "some evidence." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454-55 (1985).
1. Incident Report
A review of the disciplinary record reveals that the petitioner received all of the due process safeguards afforded to him by Wolff. The petitioner received written notice of the charges against him at least 24 hours before the DHO hearing. Specifically, the petitioner received and signed the "Notice of Discipline Hearing Before the (DHO)" form, which specified the charge, on April 21, 2021, and the DHO hearing occurred on May 5, 2021 (doc. 8-1 at 5, 7).
The petitioner argues that he did not receive proper notice of the charge because he did not receive a copy of the incident report at least 24 hours before either DHO hearing on April 28, 2021, or May 5, 2021 (doc. 10 at 1-5). However, Wolff does not mandate that written notice of the pending charges be given specifically through an incident report. See generally Wolff, 418 U.S. 539. Moreover, even if officials were required to provide the petitioner with a copy of the incident report at least 24 hours prior to the DHO hearings, the petitioner has presented no evidence to support his conclusory allegation that he did not receive a copy of the incident report within that time frame (doc. 10 at 1-5). The petitioner contends that his written request for a copy of the incident report on the form advising him of his rights shows that he did not have a copy of the report at that time (id. at 3; doc. 8-1 at 6). However, the petitioner signed this form on April 21, 2021, more than 24 hours prior to either of the DHO hearings in question (doc. 8-1 at 6). Consequently, even if the petitioner had not received a copy of the incident report at this time, it does not necessarily imply that he did not receive a copy between April 21, 2021 and 24 hours before the DHO hearing on April 28, 2021. The respondent, on the other hand, has presented documentary evidence and a declaration from the DHO that the petitioner was provided a copy of the incident report on three occasions: (1) the incident report reflects that Lieutenant Lucas provided the petitioner with a copy of the incident report on April 20, 2021; (2) the UDC chairman indicated that she provided the petitioner with a copy of the incident report in her documentation on April 21, 2021; and (3) the DHO iterated in his declaration that he emailed the incident report to Lieutenant Lopez and saw Lieutenant Lopez print and provide the petitioner with a copy of the report on April 28, 2021 (docs. 8-1 at 2-3; 8-2, Lupotsky decl. ¶¶ 6-7). Viewing the facts in the light most favorable to the petitioner, the undersigned finds that there is no genuine issue of material fact regarding whether the petitioner received written notice of the charge pending against him because of his receipt and signature of the form advising him of his rights and the pending charge on April 21, 2021, and the petitioner's self-serving allegations regarding the incident report, without more, are insufficient to survive a well-supported motion for summary judgment. See Matherly v. Andrews, 859 F.3d 264, 280 (4th Cir. 2017) ("Conclusory or speculative allegations do not suffice to oppose a properly supported motion for summary judgment, nor does a mere scintilla of evidence.") (citations and internal quotation marks omitted); Pronin v. Johnson, 628 Fed.Appx. 160, 161 (4th Cir. 2015) ("[A] party cannot withstand summary judgment by relying solely on his own self-serving allegations unsupported by any corroborating evidence.") (citation omitted).
To the extent that the petitioner argues that his due process rights were violated because he did not receive a copy of the incident report within 24 hours of the incident occurring, this argument also fails. BOP policy provides that an inmate "will ordinarily receive the incident report within 24 hours of staff becoming aware of [the inmate's] involvement in the incident." BOP Program Statement 5270.09 § 541.5(a) (available at https://www.bop.gov/PublicInfo/execute/policysearch?todo=query#) (emphasis added); see also 28 C.F.R. § 541.5(a). As an initial matter, this policy does not mandate that the report be given within 24 hours. Moreover, even if it did, "the BOP's violations of its own policies do not amount to a due process violation." Bauer v. Warden FCI Williamsburg, C. A. No. 6:16-cv-304-RMG, 2017 WL 318683, at *2 (D.S.C. Jan. 23, 2017). Therefore, the petitioner's arguments regarding not receiving proper notice are without merit.
In addition, the petitioner was advised of his rights, including his right to a staff representative, his right to present and call witnesses, and his right to make statements in his defense (doc. 8-1 at 6-8). The petitioner waived his right to a staff representative, but he called a witness who provided a statement at the hearing (id. at 7-8). Further, the petitioner was provided an opportunity to make a statement on his own behalf, and he stated, "That wasn't mine. I wasn't even in the cell when they found it. The lock is mine, I took it off my locker and went to go get a shower" (id. at 7). Moreover, as shown by the DHO report, it appears that the petitioner had a neutral and detached hearing. The DHO report indicated the basis for the DHO's finding that the petitioner committed the prohibited act, the evidence relied upon, the action taken by the DHO, and the reasons for the action (id. at 8-9). Moreover, the petitioner received a copy of the DHO report on June 8, 2021 (id. at 10).
Further, the DHO's findings are supported by "some evidence in the record," as required by Hill. 472 U.S. at 254 (citation omitted). The Supreme Court of the United States has explained that "[t]his standard is met if 'there was some evidence from which the conclusions of the administrative tribunal could be deduced. . . ." Id. at 455 (quoting United States ex rel. Vajtauer v. Comm'r of Immigration, 273 U.S. 103, 106 (1927)). Ascertaining whether the standard has been satisfied, "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, 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. Explaining the standard further, the Court provided, "[t]he Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board. Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing." Id. at 457. Hill instructs that a reviewing court does not make an independent assessment of the credibility of the witnesses or weigh the evidence. Id. at 455-56.
Here, as set out above by the DHO, Officer Childers conducted a random cell search of the petitioner's cell and found a lock with two laundry straps attached to it under the mattress on the top bunk (doc. 8-1 at 8-9). When Officer Childers asked the inmates in that cell about the item, the petitioner told Officer Childers that it was his and that the lock was "no good" (id. at 9). The incident report further reflects that when Lieutenant Lucas informed the petitioner of his rights, the petitioner stated, "It is mine but it is not a weapon . . ." (id. at 4). At the DHO hearing, the petitioner provided a conflicting statement that the weapon was not his and that he had removed the lock from his locker, set it down in his cell, and went to the shower (id. at 9). The petitioner's witness further contradicted this statement and said that the petitioner never entered the cell, came into the unit from the yard, and went directly to the shower (id.). Moreover, there were photographs of the weapon (id. at 8). The petitioner did not present any documentary evidence to the DHO to rebut the charge (id.). Based on the foregoing, the undersigned finds that there is some evidence in the record to support the DHO's finding. Accordingly, the undersigned recommends that the district court find that the petitioner received all of the due process safeguards outlined in Wolff.
2. Appeal
The petitioner also argues that his due process rights were violated because the Central and Regional Offices did not respond to his appeals by the response deadline (doc. 10 at 3-5). The petitioner appears to argue that this failure to respond interfered with his ability to exhaust (id. at 4).
As an initial matter, it appears that the petitioner is attempting to defend against the affirmative defense of failure to exhaust. The petitioner also appears to contend that he should not be responsible for failing to exhaust, as the court is obligated to ensure that any defects in the administrative exhaustion were not procured from the action or inaction of prison officials (doc. 10 at 4 (citing Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006))). However, the respondent has not pursued this affirmative defense and specifically noted that it is not challenging exhaustion (doc. 8 at 12).
Moreover, the undersigned finds that the petitioner has failed to show a genuine issue of material fact regarding a due process violation as a result of a failure to respond. Both the Central and Regional Offices reviewed the petitioner's appeal, Remedy ID No. 1083423, and upheld the disciplinary action (doc. 8-1 at 11-20). Moreover, to the extent that the Central or Regional Offices violated any BOP policy, as set out above, "the BOP's violations of its own policies do not amount to a due process violation." Bauer, 2017 WL 318683, at *2. Furthermore, the petitioner has failed to show that he was prejudiced by any failure to respond. See Brown v. Braxton, 373 F.3d 501, 508 (4th Cir. 2004) (stating that even if a prison official's actions create a potential due process violation, a habeas petitioner must demonstrate that he was harmed by the violation in order to obtain relief) (citations omitted). In addition, the petitioner was able to challenge his disciplinary action in this court. See, e.g., Bivins v. Warden, FCI Edgefield, C/A No. 6:20-1065-SAL-KFM, 2020 WL 7389154, at *4 (D.S.C. Oct. 26, 2020), R&R adopted by 2020 WL 7384731 (D.S.C. Dec. 16, 2020) (finding that a petitioner's argument that he was prevented from effectively appealing due to the BOP's violation of its own policy was without merit because the petitioner was not prejudiced and still able to challenge his disciplinary conviction in federal court); Calixto v. Masters, C/A No. 1:15-cv-12778, 2016 WL 2600431, at *4 (S.D. W.Va. 2016) (same). Consequently, the petitioner's argument is without merit, and any error by the Central or Regional Offices in failing to timely respond is harmless.
IV. CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the respondent's motion for summary judgment (doc. 8) be granted.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).