Opinion
C. A. 4:24-589-TMC-TER
02-08-2024
Demetrius Alexander Brown, #378276, a/k/a Demetrius Alexander Brown, #51104, Petitioner, v. Kenneth Sharp, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
Petitioner, a state prisoner, proceeding pro se, alleges he brings this action pursuant to § 2241(ECF No. 1 at 2); however, Petitioner's label does not control and as a state prisoner Petitioner's action for requested relief of release is under 28 U.S.C. § 2254. The Fourth Circuit Court of Appeals has held that those contesting state convictions cannot simply avoid/opt out of § 2254's operation of restrictions by “writing 2241 on his petition.” In re Wright, 826 F.3d 774, 781 (4th Cir. 2016). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local 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. The Petition is subject to summary dismissal.
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of 28 U.S.C. § 1915 and the AntiTerrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition submitted in this case should be summarily dismissed.
DISCUSSION
Petitioner's allegations are in regard to conditions of confinement of only hot water twice a week as showers and limiting canteen to $15 for hygienic products, and firing from prison jobs. (ECF No. 1 at 3). Petitioner does not provide facts as to what convictions he is seeking release from. Petitioner purports to represent others by referring to “Petitioners” and “et al” in the caption.
As to showers, if Petitioner had filed a § 1983 action regarding this allegation, he would fail to allege facts that raise a claim to a constitutional magnitude: The law is clear that bathing opportunities may be severely reduced or curtailed without violating a Eighth Amendment rights. See, e.g., Shakka v. Smith, 71 F.3d 162, 168 (4th Cir.1995) (inmate's constitutional rights were not violated where he was not given access to shower for three days); Davenport v. DeRobertis, 844 F.2d 1310, 1316-17 (7th Cir.1988), cert. denied, 488 U.S. 908 (1988) (holding that one shower per week did not violate constitutional rights); Blackburn v. South Carolina, No. 0:06-2011-PMD-BM, 2009 WL 63254, at *17 (D.S.C. Mar. 10, 2009) (ten days without a shower and, after that, an average of one shower per week was not a constitutional deprivation).
“There is simply no freestanding constitutional right to canteen privileges at all, much less a constitutional right to competitively priced canteen items, or any other issue related to the sale of canteen items.” Bennett v. Cannon, No. 2:05-cv2634-GR, 2006 WL 2345983, at *2 (D.S.C. Aug. 10, 2006); see, e.g., Madison v. Parker, 104 F.3d 765, 768 (5th Cir.1997).
There is no constitutional right to a prison job and the “deprivation of a prison job states no independent constitutional claim.” Patel v. Moron, 897 F.Supp.2d 389, 400 (E.D. N.C. 2012).
Petitioner is the only signator on the Petition and cannot represent others as a pro se litigant. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (“[T]he competence of a layman representing himself [is] clearly too limited to allow him to risk the rights of others.”); see also Hummer v. Dalton, 657 F.2d 621, 625-26 (4th Cir. 1981) (holding that a prisoner's suit is “confined to redress for violation of his own personal rights and not one by him as a knight-errand for all prisoners”).
Petitioner is incarcerated as a state prisoner and is familiar to the court from actions filed as a detainee. Petitioner has not exhausted state court remedies. “It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted.” Beard v. Green, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also 28 U.S.C. § 2254(b); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973); Picard v. Connor, 404 U.S. 270 (1971). It is well-settled that state prisoners must exhaust all available state-court avenues for challenging their convictions before they seek habeas relief in federal court. See 28 U.S.C. § 2254(b)(1). Section 2254 generally forbids federal courts from granting collateral relief until prisoners have “fairly presented” their claims in each appropriate state court. Baldwin v. Reese, 541 U.S. 27, 27 (2004); see also Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (“The exhaustion requirement ... serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.”); Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010) (noting that “a federal habeas court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them”).
Petitioner paid the habeas filing fee here attempting to pursue conditions of confinement claims. If Brown were to file this action anew as an appropriate § 1983 action, he would likely be denied in forma pauperis status and ordered to pay the filing fee as he has accumulated the statutory amount of summary dismissals under § 1915(g). See No. 4:22-cv-164-TMC; No. 3:21-cv-2405-TMC; No. 3:14-cv-4635-TMC.
Petitioner's cited law focuses on whether the Eleventh Circuit has decided the issue if conditions of confinement claims can be cognizable in habeas. (ECF No. 1 at 4). Also, Petitioner asserts he is “suing for injunctive relief against federal officers in their official capacity.” (ECF No. 1 at 6-7). Petitioner is suing state employees and the relevant law here is that of the Fourth Circuit.
Petitioner asserts his two showers a week, $15 hygienic canteen limit and lack of a prison job is causing irreparable injury such that he should be released from his thirty year sentence. (ECF No. 1 at 7).
While the United States Court of Appeals for the Fourth Circuit has not addressed the issue in a published opinion, it has noted that “[s]even of the ten circuits that have addressed the issue in a published decision have concluded that claims challenging conditions of confinement cannot be brought in a habeas petition.” Wilborn v. Mansukhani, 795 Fed.Appx. 157, 163 (4th Cir. 2019). In Wilborn, the Fourth Circuit concluded that “[t]his case presents no basis to deviate from our previous holdings” that conditions of confinement claims are not cognizable in a habeas action. Id. at 164; see also Farabee v. Clarke, 967 F.3d 380, 395 (4th Cir. 2020)(collecting cases without deciding); Kidd v. Warden Williamsburg Fed. Corr. Inst., No. 6:23-CV-01326-TMC, 2023 WL 4397397, at *1 (D.S.C. July 7, 2023)(adopting recommendation that “conditions of confinement claims are not cognizable in habeas proceedings”); Sandlain v. Rickard, 2022 WL 228311, at *3 (S.D. W.Va. Jan. 25, 2022)(collecting cases of the Fourth Circuit and of lower courts within the Fourth Circuit). The weight of authority both within and outside this circuit suggests that, as a general matter, petitioners cannot challenge their conditions of confinement in a habeas corpus proceeding.
RECOMMENDATION
Accordingly, it is recommended that the § 2254 Petition in this case be dismissed without prejudice and without requiring the respondent to file a return.
IT IS SO ORDERED.
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
Post Office Box 2317
Florence, South Carolina 29503
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).