Opinion
C A. 4:23-9-MGL-TER
10-18-2023
Chavis Cox, #327335, a/k/a Chavis Laranzo Cox, Petitioner, v. Warden, Kirkland Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III., UNITED STATES MAGISTRATE JUDGE.
Petitioner, a state prisoner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. 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 dismissal for lack of subject matter jurisdiction.
DISCUSSION
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 Anti-Terrorism 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. With respect to Petitioner's convictions and sentences, Petitioner's sole federal remedies are a writ of habeas corpus under either 28 U.S.C. § 2254 or 28 U.S.C. § 2241, which remedies can be sought only after the Petitioner has exhausted his state court remedies.
Petitioner has a pending § 1983 action on his conditions of confinement in the SSR unit/Supermax after an escape and hostage incident. No. 4:21-cv-3797-MGL-TER. Ground three of the Petition is “pending 1983 suit” where Petitioner stated “I am hoping to enjoin this petition with that one pending.” (ECF No. 1 at 8). Petitioner is requesting release from solitary confinement. Petitioner is not contesting his convictions which resulted in his overall confinement. (ECF No. 1).
Defendants in the § 1983 action argue habeas is the appropriate vehicle for Petitioner's § 1983 allegations. No. 4:21-cv-3797-MGL-TER(ECF No. 62-1)(“explained in McNair v. McCune, 527 F.2d 874 (4th Cir. 1975) that “there is federal habeas corpus jurisdiction over the complaint of a federal prisoner who is challenging not the validity of his original conviction, but the imposition of segregated confinement without elementary procedural due process and without just cause.”) As explained below, a habeas action does not lie as to these allegations and reading McNair broadly has been cautioned against.
The proper remedy lies in habeas corpus only if “success in [an] action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). If success-essentially playing out the hypothetical grant of relief- “would not necessarily spell immediate or speedier release for the prisoner,” habeas corpus is not the appropriate remedy. Id. at 81. If the court were to grant Petitioner here his requested relief of change of custody out of SSR unit/Supermax, essentially so that he may experience the conditions of general population instead, such grant of relief would not afford Petitioner any speedier release or change the fact or duration of his confinement. As a result, this court lacks habeas corpus subject matter jurisdiction to consider Petitioner's claims. See Bagley v. Dunlap, No. 5:17-CV-00671-TLW-KDW, 2017 WL 5054395, at *3 (D.S.C. Apr. 19, 2017), report and recommendation adopted, 2017 WL 5000719 (D.S.C. Nov. 1, 2017). In answering the “question[whether a prisoner may challenge conditions in a habeas], the Fourth Circuit has consistently, albeit never directly, concluded that most conditions of confinement claims are not cognizable in habeas proceedings.” Sandlain v. Rickard, 2019 WL 4691467, at *1 (S.D. W.Va. Sept. 25, 2019), aff'd, 801 Fed.Appx. 202 (4th Cir. 2020)(collecting cases of the Fourth Circuit and also cautioning against reading McNair's holding broadly); see also Cromartie v. Gerald, 2018 WL 8806485, at *1 (M.D. N.C. Oct. 29, 2018), report and recommendation adopted, 2018 WL 8806484 (M.D. N.C. Dec. 6, 2018)(collecting cases noting segregated confinement is not sufficient to give rise to a habeas claim and finding no jurisdiction); Gray v. Hooks, 2018 WL 1413968, at *6 (E.D. N.C. Mar. 21, 2018)(dismissing and providing forms for § 1983 for custody classification because such claims do not lie under § 2254). This court lacks habeas corpus subject matter jurisdiction to consider Petitioner's claims.
RECOMMENDATION
Accordingly, it is recommended that the Petition be dismissed without prejudice and without requiring the respondent to file a return.
See Platts v. O'Brien, 691 Fed.Appx. 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for ... [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.”).
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).