Opinion
C. A. 8:22-cv-03241-JD-JDA
07-27-2023
Francis Cherfils, Petitioner, v. R.S. Dunbar, Warden, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on Respondent's motion to dismiss or, in the alternative, for summary judgment. [Doc. 17.] Petitioner is a prisoner in the custody of the Federal Bureau of Prisons (“BOP”), proceeding pro se, who seeks relief under 28 U.S.C. § 2241 by challenging certain prison disciplinary proceedings. [Doc. 1 at 1-2.] 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 Magistrate Judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on September 14, 2022. [Doc. 1.] On February 27, 2023, Respondent filed a motion to dismiss the Petition, or alternatively, for summary judgment. [Doc. 17.] On February 28, 2023, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner to respond to Respondent's motion and of the possible consequences if he failed to adequately respond to the motion. [Doc. 18.] On April 6, 2023, the Clerk docketed a response from Petitioner opposing summary judgment. [Doc. 21.] Respondent's motion is now ripe for review. Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondent's motion be granted and the Petition be denied.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). In this case, construing the filing date in the light most favorable to Petitioner, the Petition was filed on September 14, 2022. [See Doc. 1 at 13 (Petition signed by Petitioner on September 14, 2022).].
BACKGROUND
Petitioner is presently incarcerated at the Petersburg Federal Correctional Institution (“FCI Petersburg”) in Petersburg, Virginia. [Doc. 16.] On September 26, 2021, while Petitioner was an inmate at FCI Williamsburg, Corrections Officer B. Carter (“Officer Carter”) filed Incident Report number 3545997 charging Petitioner with violating Code 201, fighting with another person, related to an incident that occurred on September 11, 2021. [Docs. 1 at 8; 1-1 at 9.]
At the time Petitioner commenced this action, he was incarcerated at the Williamsburg Federal Correctional Institution (“FCI Williamsburg”) in South Carolina. [Doc. 1 at 1.]
On September 27, 2021, Lieutenant R. Bell (“Bell”) provided Petitioner a copy of the Incident Report. [Doc. 1-1 at 6, 9.] On September 30, 2021, a disciplinary hearing was held and Discipline Hearing Officer (“DHO”) Lupotsky found Petitioner guilty of Code 224A, attempting to assault another person. [Docs. 1 at 9; 1-1 at 6-8; 17-1 at 15. DHO Lupotsky issued a DHO Report on September 30, 2021, imposing the following sanctions for the Code 224A violation: 27 days loss of statutory good conduct time (“GCT”) and 3 months loss of commissary privileges. [Docs. 1-1 at 6-8; 17-1 at 12-15.]
Petitioner has attached to his Petition unredacted, but incomplete, copies of the Incident Report [Doc. 1-1 at 9] and DHO Report [id. at 6-8]. Respondent has attached to his motion complete, but redacted, copies of the Incident Report [Doc. 17-1 at 4-6] and DHO Report [id. at 12-15]. The Court cites to both versions of the Incident Report and DHO Report when needed.
Petitioner contends that he attempted to appeal the DHO's decision through all of the available procedures in the administrative remedy program. [Doc. 1 at 5-6.] Although neither party has provided conclusive documentation showing that Petitioner exhausted his available administrative remedies, Respondent does not appear to contest this issue.
Petitioner then filed this Petition for writ of habeas corpus under 28 U.S.C. § 2241 on September 14, 2022, in which he claims the DHO's findings and sanctions violated his due process rights. [Doc. 1 at 1-2, 8.] Petitioner asserts the following single ground for relief in his Petition, quoted substantially verbatim:
GROUND ONE: Whether Petitioner's due process was violated when during the DHO hearing the videotape capturing the events of the alleged fight was refused after petitioner requested them several times, and whether his due process rights were violated when he was refused a copy of the rewrite authorization signed by the warden.
Supporting Facts: Specifically, on September 11, 2021, petitioner was charged with allegedly fighting in violation of Code 201. Although the evidence suggested “horse playing” which is a common occurrence in the housing unit, and as both individuals explained to the officer.[Id. at 8.] For his relief, Petitioner asks that the Court declare that his due process rights were violated, restore the 27 days of GCT that were taken away as a result of the DHO hearing, remove the commissary restrictions, and direct the BOP to expunge the Incident Report from his record. [Id. at 11-12.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Motion to Dismiss and Motion for Summary Judgment Standards
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the [petition] in a light most favorable to the [petitioner].” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). If on a motion pursuant to Rule 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment under Rule 56. See 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). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under 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. When 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 court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant'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 granting 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. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Because Respondent, in his motion, presented to the Court matters outside the pleadings, which the Court is not excluding, Respondent's motion shall be treated as one for summary judgment.
Habeas Corpus
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attack[ing] the computation and execution of the sentence rather than the sentence itself.” United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989). “A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.” Manigault v. Lamanna, No. 8:06-cv-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006). Thus, an analysis under § 2241 is the appropriate mechanism by which to review Petitioner's claims arising from the DHO hearing and loss of GCT sanctions.
DISCUSSION
Respondent argues he is entitled to summary judgment on the claims raised in the Petition. [Doc. 17.] Specifically, Respondent contends (1) Petitioner received the rights afforded pursuant to Wolff v. McDonnell, 418 U.S. 539 (1974); (2) the failure to follow BOP policy does not violate due process; and (3) the evidence presented at the DHO hearing was sufficient to support Petitioner's prison disciplinary conviction and loss of GCT. [Id. at 9-15.] The Court agrees and will address each argument in turn below.
Before addressing the merits of the Petition and Respondent's motion, the undersigned pauses to address Petitioner's present custody location. As noted, although Petitioner was incarcerated at FCI Williamsburg at the time he commenced this action [Doc. 1 at 1], he was subsequently transferred to FCI Petersburg where he is presently incarcerated [Doc. 16]. District courts are authorized to grant writs of habeas corpus “within their respective jurisdictions,” 28 U.S.C. § 2241(a), and such writs “shall be directed to the person having custody of the person detained,” 28 U.S.C. § 2243. Therefore, the proper party respondent is the “person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (internal quotation marks omitted). Similarly, because “the court issuing the writ [must] have jurisdiction over the custodian,” in “habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement.” Id. at 442-43 (internal quotation marks omitted); see id. at 447 (noting a § 2241 petition must be brought against the warden of the facility where the prisoner is being held and in the district of confinement). “[T]he decisions in the District of South Carolina have split on the issue of whether the Court retains jurisdiction over habeas corpus petitions after a prisoner is transferred out of the district.” Marcano v. Mosley, No. 8:17-cv-02069-HMH-JDA, 2018 WL 1179550, at *1 (D.S.C. Feb. 14, 2018) (collecting cases), Report and Recommendation adopted by 2018 WL 1174362 (D.S.C. Mar. 6, 2018). Significantly, in Plaskett v. Cruz, 282 F.Supp.3d 912 (D.S.C. 2017), the Honorable Mary Geiger Lewis held that, after the petitioner's release from federal custody in South Carolina, his supervised release agent was the proper respondent in a § 2241 petition and that, because the agent was in the Virgin Islands, the court lacked habeas jurisdiction to entertain the petition. Id. at 914-15. Following Plaskett, the undersigned has recommended transfer of § 2241 actions in at least three cases when the inmates in those cases were relocated to out-of-district prisons after the commencement of those actions: (1) Major v. Ramirez, No. 8:17-cv-2355-MGL-JDA, 2018 WL 2470747, at *2 (D.S.C. May 9, 2018) (noting “the undersigned, constrained to apply the law as explained in Plaskett, finds that the Court lacks jurisdiction over this matter”), Report and Recommendation adopted by 2018 WL 2462002 (D.S.C. May 31, 2018); (2) Marcano, 2018 WL 1179550, at *2 (noting that “the Court need not decide whether it retains jurisdiction following Petitioner's transfer to FCI Allenwood Medium because Petitioner is seeking the transfer and Respondent does not oppose the transfer”); and (3) Cody v. Phelps, No. 8:20-cv-3298-SAL-JDA, 2020 WL 9071682, at *1 (D.S.C. Oct. 26, 2020) (citing Plaskett and finding “[t]his Court does not have jurisdiction over Petitioner's claim”), Report and Recommendation adopted by 2021 WL 1230280 (D.S.C. Mar. 31, 2021). Subsequent to the above-referenced cases, the undersigned became aware that the Fourth Circuit has clarified that “[w]hen the ‘Government moves a habeas petitioner after [he] properly files a petition naming [his] immediate custodian, the District Court [where the petitioner filed a petition] retains jurisdiction.'” Lennear v. Wilson, 937 F.3d 257, 263, n.1 (4th Cir. 2019) (most alterations in original) (quoting Padilla, 542 U.S. at 441). In light of Lennear, the undersigned concludes that, because Petitioner initially filed his action in this District, where he was confined at the time, and named his immediate custodian at FCI Williamsburg as the Respondent, “jurisdiction” under § 2241(a) was present in this Court at the outset. Therefore, Petitioner's transfer to FCI Petersburg does not defeat this Court's ability to entertain the Petition. Accordingly, the Court will consider the merits of the underlying Petition.
Petitioner's Disciplinary Action
According to the Incident Report, on September 11, 2022, Officer Carter
observed [Petitioner] swinging at inmate Finklea, Gary [(“Finklea”)] at the upper torso and facial area with closed fist. As [Carter] approached the area where the inmates were fighting from a safe distance[, Carter] gave the inmates a direct order to stop fighting but they refused to obey the command. [Carter] then announced for the rest of the unit to lock down, and immediately called for assistance via radio. Following the incident[,] compound staff responded and removed inmate Finklea [and Petitioner] from the unit.[Docs. 1-1 at 9; 17-1 at 4.] As such, Petitioner was charged with violating Code 201, fighting with another person. [Doc. 17-1 at 4.] Lieutenant Bell provided Petitioner advance written notice of the charge by giving him a copy of the Incident Report on September 27, 2021, and he was advised of his rights on that same day. [Id. at 4, 6; Doc. 1-1 at 6, 9.]
Petitioner was initially provided a copy of an Incident Report on September 24, 2021. [Doc. 1-1 at 12.] However, according to Respondent, that Incident Report was revised [Doc. 17 at 5 n.1], and Petitioner was then provided with the revised Incident Report as explained above.
A unit discipline committee (“UDC”) hearing was held on September 29, 2021. [Doc. 17-1 at 5.] During the UDC hearing, Petitioner made no comment. [Id.] The Incident Report was then forwarded to the DHO for further processing. [Id. at 6.]
Petitioner was provided a “Notice of Discipline Hearing Before the (DHO)” form on September 29, 2021, and he signed the form acknowledging that he did not wish to have a staff representative or witnesses. [Id. at 8.] That same day, Petitioner was also provided a form advising him of his rights at the DHO hearing, which he signed. [Id. at 10.]
The DHO conducted a hearing on September 30, 2021. [Id. at 12.] Petitioner was present at that hearing. [Id.] Again, Petitioner declined to have a staff representative present and declined to request witnesses. [ Id. at 12-13.] At the hearing, Petitioner stated that he understood his rights and that he did not have documentary evidence to present to the DHO. [Id. at 13.] Petitioner denied the charge and stated, “I wasn't fighting, me and him are best friends, I was only fake punching at him.” [Id. at 12.]
At the conclusion of the hearing, the DHO determined that Petitioner had attempted to physically assault another inmate and therefore committed the prohibited act of assaulting another person in violation of Code 224A. [Id. at 13-14.] In reaching that decision, the DHO considered the following evidence: the Incident Report, Petitioner's own statements, and other “facts and the evidence presented.” [Id.] As a result of the Code 224A violation, in accordance with the mandatory provisions of the Prison Litigation Reform Act and to deter future misconduct, the DHO imposed the following sanctions: the disallowance of 27 GCT days and the loss of 3 months' commissary privileges. [Id. at 14.]
Analysis
Certain procedural safeguards apply when the loss of statutory GCT is at issue. See Wolff, 418 U.S. at 557. In Wolff, the Supreme Court set out the requirements for due process in prison disciplinary hearings:
1. Giving the prisoner written notice of the charges at least 24 hours before he appears for his disciplinary hearing;
2. Providing the prisoner a written statement by the fact finder(s) as to the evidence relied on and reasons for the disciplinary action;
3. Allowing the prisoner to call witnesses and present documentary evidence in his defense, when permitting him to do so will not be an undue hazard to institutional safety or correctional goals;
4. Permitting the prisoner the aid of a fellow prisoner, or if that is forbidden, aid from staff or a competent inmate designated by staff, if the prisoner is
illiterate or the complexity of the issue makes it unlikely that the prisoner will be able to collect and present the evidence necessary for an adequate comprehension of the case; and
5. Providing impartial fact finders.Id. at 563-72. Additionally, DHO findings revoking a prisoner's GCT must be supported by “some evidence in the record.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985). The Court in Hill declined to adopt a more stringent evidentiary standard as a constitutional requirement, stating:
Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact.Id. at 456 (internal citation omitted). The “some evidence” standard is a lenient one, requiring no more than “a modicum of evidence,” and is met if there is any evidence in the record that could support the decision. Id. at 455-56; Baker v. Lyles, 904 F.2d 925, 932 (4th Cir. 1990) (“Nor does [requiring some evidentiary basis to revoke good time credits] imply that a disciplinary board's factual findings or decisions with respect to appropriate punishment are subject to second-guessing upon review.”). This standard requires “only that the decision not be arbitrary or without support in the record.” McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999). As the Court in Hill noted:
Ascertaining whether this standard is 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.472 U.S. at 455-56.
Petitioner received the rights due under Wolff.
Here, Petitioner's claim is without merit because he received adequate due process in light of the Wolff factors noted above. Specifically, Petitioner was provided advanced written notice of the charges against him as he was given a copy of the revised Incident Report on September 27, 2021, by Lieutenant Bell more than 24 hours in advance of the disciplinary hearing. [Doc. 17-1 at 4, 12.] Petitioner was advised of his rights by Lieutenant Bell that same day, and he stated he understood those rights. [Id. at 6.] On September 29, 2021, Petitioner was provided an “Inmate Rights at Discipline Hearing” form that he signed, acknowledging that he understood his rights. [Id. at 10.] Additionally, Petitioner waived his rights to have a staff representative and to call witnesses. [Id. at 8.] After receiving evidence, DHO Lupotsky issued a written decision identifying the evidence relied upon and the reasons for the disciplinary action. [Id. at 12-15.] Nothing in the record indicates that DHO Lupotsky was not impartial. Finally, the DHO Report was delivered to Petitioner by Officer Scott on December 7, 2021. [Id. at 15.] These procedural steps satisfy the requirements of due process under Wolff. See, e.g., Jackson v. Labier, No. 9:07-cv-01317-RBH, 2008 WL 3992653, at *10 (D.S.C. Aug. 25, 2008).
Failure to follow BOP policy is not a due process violation.
Next, Petitioner contends he was denied due process because the Incident Report was re-written multiple times without authorization from the warden and because he did not receive a copy of the Incident Report within 24 hours of the time that staff became aware of the incident in violation of BOP Program Statement 5270.09. [Doc. 1 at 9.] Petitioner's contentions are without merit for a number of reasons.
First, although Petitioner alleges that the “[I]ncident [R]eport was re-written 4 times without ever obtaining a re-write authorization form signed by the warden, and [he] was never provided a copy of this form as required by [BOP] Policy” [id.], he has not forecasted any evidence to support his assertions. On the other hand, Respondent has produced two “Advisement of Incident Report Delay” forms showing both that the warden approved the Incident Report re-writes and that copies of those forms were provided to Petitioner. [Doc. 17-1 at 17, 19.] Respondent's evidence, unrebutted by Petitioner, conclusively shows Petitioner's allegations are without merit and that prison staff complied with BOP policy as to this issue.
Second, Petitioner's interpretation of the BOP policy as to the 24-hour rule is incorrect. BOP Program Statement 5270.09 § 541.5 provides:
The discipline process starts when staff witness or reasonably believe that you committed a prohibited act. A staff member will issue you an incident report describing the incident and the prohibited act(s) you are charged with committing. You will ordinarily receive the incident report within 24 hours of staff becoming aware of your involvement in the incident.
See BOP Program Statement 5270.09, Inmate Discipline Program, § 541.5(a); see also 28 C.F.R. § 541.5(a). However, despite Petitioner's assertion that the above Program Statement requires prison staff to provide an incident report within 24 hours, the “[f]ederal regulations and BOP policy [provisions quoted above] do not mandate that an incident report be delivered within 24 hours; instead, the regulations and policy state that an inmate will ‘ordinarily' receive the report within 24 hours.” Clark v. Mosley, No. 6:17-cv-219-RMG-KFM, 2017 WL 4990537, at *8 (D.S.C. Sept. 25, 2017) (emphasis added), Report and Recommendation adopted by 2017 WL 5027347 (D.S.C. Oct. 30, 2017). “Thus, the regulations upon which Petitioner relies to assert a due process violation actually indicate that the time limits are not mandatory, and other courts have so found.” Huang v. Mahsukhani, No. 4:16-cv-1269-BHH, 2016 WL 6694530, at *3 (D.S.C. Nov. 15, 2016) (collecting cases). And, importantly, Wolff does not set forth a time limitation within which a prisoner must receive a written report following an incident that leads to disciplinary proceedings that involve the loss of GCT. Id. (noting “the only time limit set forth in Wolff is the requirement that an inmate receive at least 24 hours after written notice of the charges to prepare for a hearing”). Thus, Petitioner has failed to show that his receipt of the Incident Report outside of the ordinary 24-hour period contemplated by the Program Statement violated his due process rights or even violated BOP policy.
BOP Program Statement 5270.09 is available at https://www.bop.gov/ policy/progstat/5270009.pdf. (last visited Jul. 24, 2023).
Finally, even if prison staff had violated BOP policy, it is well settled that “the BOP's violations of its own policies do not amount to a due process violation.” Bauer v. Warden FCI Williamsburg, No. 6:16-cv-304-RMG, 2017 WL 318683, at *2 (D.S.C. Jan. 23, 2017); Serrano v. Warden of FCI-Bennettsville, No. 9:21-cv-02927-DCC-MHC, 2022 WL 4227387, at *7 (D.S.C. July 19, 2022) (“[A] violation of BOP policies and procedures-to the extent this may be one-does not support a due process violation.”), Report and Recommendation adopted by 2022 WL 4182487 (D.S.C. Sept. 13, 2022); see also Mercery v. Phelps, No. 8:20-cv-04126-MGL-JDA, 2021 WL 2690176, at *5 (D.S.C. May 13, 2021) (“[T]he failure to provide a DHO report within the time frame contemplated by the regulations is not itself a violation of due process, and the fact that Petitioner now has been provided the report moots any due process claim regarding the failure to provide the report earlier.”), Report and Recommendation adopted by 2021 WL 2688842 (D.S.C. June 30, 2021).
The DHO's findings were supported by some evidence.
Finally, the records from Petitioner's disciplinary proceedings show the DHO's decision satisfies the requisite “some” evidence standard. See Hill, 472 U.S. 445, 455 (1985). As set forth in the DHO's written decision, the DHO read the reporting officer's statement contained in the Incident Report aloud to Petitioner indicating Officer Carter observed Petitioner swinging with a closed fist at another inmate's upper torso and facial area. [Doc. 17-1 at 13-14.] The DHO noted that Petitioner did not provide any documentary evidence, did not request to have a staff representative, and did not request any witnesses. [Id.] Further, the DHO noted that Petitioner stated he was “throwing fake punches” and was just “horseplaying.” [Id.] Considering all of the evidence, the DHO explained as follows:
The DHO considered your statements, some facts and the evidence presented. The DHO concludes[:] You were observed attempting to physically assault another inmate by swinging at him with a closed fist. You admitted doing this, but stated you were only horseplaying and only throwing fake punches towards [another inmate]. If that is true, there is no way for anyone to discern the difference between a real punch or a fake punch and either of these are prohibited for obvious reasons in this type environment. You did not provide the DHO with any substantive evidence to support that you did not attempt to assault another inmate.[Id. at 14.] As such, some evidence supports the DHO's decision. Indeed, other courts have uniformly upheld DHO decisions in similar situations based on similar evidence. See, e.g., Hamlet v. Warden, No. 3:18-cv-997-JD-MGG, 2020 WL 554012, at *4 (N.D. Ind. Feb. 4, 2020) (finding some evidence supported the DHO's findings and noting that, “[w]hile [the petitioner] argued that ‘no punches were thrown' and that he was engaged in mere horseplay, there is no requirement that punches be thrown” and that “the DHO was not required to credit [the petitioner's] version of events”); Obiegbu v. Werlinger, No. 3:10-cv-301-KRG-KAP, 2012 WL 12952437, at *1 (W.D. Pa. June 15, 2012) (noting that the petitioner's argument that he was “engag[ing] in ‘clowning around' or ‘horseplay'” was without merit as some evidence supported the DHO's decision and that, “even if the eyewitness made an error of judgment in interpreting the encounter, and the DHO relied on that error, it would not invalidate the disciplinary sanction imposed”), Report and Recommendation adopted by 2012 WL 12952547 (W.D. Pa. July 2, 2012), aff'd, 488 Fed.Appx. 585 (3d Cir. 2012).
Additionally, to the extent Petitioner is attempting to assert a claim of actual innocence in that he alleges he was just horseplaying and not actually fighting, such a claim is not a basis for federal habeas corpus relief in the prison disciplinary context. Belt v. Warden FCI Edgefield, No. 9:17-cv-0286-JFA-BM, 2017 WL 6820041, at *5 (D.S.C. Oct. 20, 2017) (collecting cases), Report and Recommendation adopted by 2018 WL 321549 (D.S.C. Jan. 8, 2018).
Finally, the crux of Petitioner's argument as to the sufficiency of the evidence appears to be that the DHO did not review video footage of the incident in violation of his due process rights. [Doc. 1 at 9.] Specifically, Petitioner contends that, “before and during the DHO hearing[, P]etitioner was requesting that the videotape of the unit where the alleged incident occur[r]ed be viewed and was told by the DHO that there was no video tape.” [Id.] Citing various cases, Petitioner contends that “[v]ideo tape evidence must be viewed and entered into the record of evidence at prison disciplinary hearings.” [Id. at 10.] Petitioner's argument is without merit.
Critically, there is no evidence in the record that Petitioner ever asked the DHO, or anyone for that matter, to review the video tape of the incident in question. Petitioner's cited cases are therefore distinguishable because, in those cases, the inmates requested that video evidence be considered prior to or during the disciplinary hearings, and their requests were denied.
The Fourth Circuit recently held that “inmates . . . have a qualified procedural due process right in disciplinary proceedings to access and compel official consideration of video surveillance evidence.” Lennear, 937 F.3d at 274. As to “the right to have video surveillance evidence considered in disciplinary proceedings-upon an inmate's request, the disciplinary hearing officer must review video surveillance unless the government establishes that consideration of such evidence would be, under the particular circumstances of the case, unduly hazardous to institutional safety or correctional goals.” Id. at 272 (first emphasis added) (internal quotation marks omitted).
Nevertheless, in the present case, there is no evidence in the record that Petitioner requested access to any video footage prior to or during his hearing. Further, and importantly, Petitioner repeatedly waived his right to have a staff representative at his hearing, to call witnesses, and to present documentary evidence. The DHO Report does not indicate that Petitioner ever requested that he be permitted to view and/or present video evidence. Instead, he merely asserts that he now believes video evidence exists and should have been considered. That conclusory assertion, however, is insufficient to show a due process violation in light of the standard set forth in Lennear.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Respondent's motion for summary judgment [Doc. 17] be GRANTED and the Petition [Doc. 1] be DENIED.
IT IS SO RECOMMENDED.