Opinion
C/A No. 9:20-798-JFA-BM
03-25-2020
Larone F. Elijah, Petitioner, v. Warden B. Dobbs, Respondent.
REPORT AND RECOMMENDATION
The pro se Petitioner, Larone F. Elijah, an inmate at the FCI-Williamsburg, brings this application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, 28 U.S.C. § 2254; the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996; and 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, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
See Rule 1(b) of Rules Governing Section 2254 Cases in the United States District Courts [the district court may apply any or all of these rules to a habeas corpus petition not filed pursuant to 28 U.S.C. §2254].
Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow for the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975). However, even when considered under this less stringent standard, for the reasons set forth hereinbelow the petition submitted in the instant case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the case here.
Discussion
Petitioner complains about events that occurred in October and November 2018 while he was previously incarcerated at FCI-Butnet in North Carolinu. He states that he was told he was being placed in the SHU under investigative administrative detention on October 5, 2018. After he refused "to talk to SIS [Special Investigative Staff] in any form", he was served with an incident report on October 24, 2018, in which he was charged with "introduction of drugs" in violation of Bureau of Prison (BOP) policies. Petitioner went to a disciplinary hearing officer (DHO) hearing on November 15, 2018, and the incident report was expunged. Petitioner claims that despite the expungement, BOP SIS staff and others decided to suspend his fiancé's visitation privileges until 2099 and administratively transferred him farther away from his family and fiancé. Petitioner's Memorandum of Law, ECF No. 1-1 at 1. He requests that his fiancé be reinstated to his visitation list and that the "stigmatizing investigation report" be removed from his central case file. Id. at 4.
For purposes of venue, petitions that are properly filed under § 2241 must be brought in the district in which the petitioner is incarcerated. Rumsfeld v. Padilla, 542 U.S. 426, 442-43 (2004).
Certain procedural safeguards apply when loss of statutory good-time credit is at issue. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974). 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;Id. at 563-76. Additionally, DHO findings revoking a prisoner's good-time credit must be supported by "some evidence in the record." Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985).
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.
Here, this action should be dismissed because Petitioner admits that the disciplinary charge has been expunged. See ECF No. 1-1 at 1. Additionally, Petitioner has not alleged that he lost any good-time credits as a result of the investigation, disciplinary charge, or disciplinary hearing. Thus, he fails to state a due process claim as he has not alleged that he has been denied any liberty interest for which the due process protections set out in Wolff (as discussed above) apply.
Petitioner cites to Taylor v. Ormond, No. 2:18-cv-248, 2019 WL 4198628 (E.D.Va. June 6, 2019) in contending that he may bring this Petition because he challenges the way in which his disciplinary proceedings were conducted, namely the failure to provide him with a copy of the DHO report. In Taylor, the magistrate judge recommended that the respondent's motion to dismiss be granted as to the petitioner's § 2241 petition which challenged three disciplinary actions because the petitioner failed to exhaust his available administrative remedies (it was also noted that the petitioner, who later received the DHO reports, failed to show any prejudice as to his appeal of the disciplinary hearings). Although it was noted that the petitioner properly invoked § 2241 as the vehicle to challenge the timing of his receipt of the DHO reports, the petitioner in Taylor (unlike Petitioner here) lost good-time credits as to each of the disciplinary actions. See Taylor v. Ormond, 2019 WL 4198628 at **1-2, *8, adopted by 2019 WL 4195341 (E.D.Va. September 4, 2019).
Although Petitioner attempts to challenge the suspension of his fiancé's visitation, he fails to show a protected due process right. Neither prisoners nor would-be visitors have a constitutional right to visitation. White v. Keller, 438 F.Supp. 110, 115 (D.Md.1977) [but leaving open the possibility that a permanent ban on all visitation could implicate the Eighth Amendment], aff'd, 588 F.2d 913 (4th Cir.1978); see also Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 461 (1989)[finding no right to visitation guaranteed by the Due Process Clause]. Here, Petitioner complains that his fiancé has been bailed from visiting him, but he has not alleged that he has been denied all visitors. Further, to the extent that he is attempting to assert claims on behalf of his fiancé, he may not do so. See Laird v. Tatum, 408 U.S. 1 (1972); see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482 (1982); Flast v. Cohen, 392 U.S. 83, 99 (1968)[a district court, when determining whether a plaintiff has standing to sue, must focus on the status of the party who has filed the complaint, such that the merits of the case are irrelevant]; Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 506 (1972); Hummer v. Dalton, 657 F.2d 621, 625-626 (4th Cir. 1981)[a prisoner cannot act as a "knight-errant" for others]. Cf. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)[a pro se prisoner cannot be an advocate for others in a class action].
Additionally, Petitioner has no protected right concerning his transfer to another institution as he has no constitutional interest in being housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. See Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983)[inmates have no due process right to choose their specific place of confinement]; Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (same).
Further, to the extent Petitioner seeks to challenge the conditions of his confinement (including visitation and prison placement), habeas corpus relief is not appropriate when a prisoner challenges the conditions of his confinement. See Nelson v. Campbell, 541 U.S. 637, 643 (2004); Preiser v. Rodriquez, 411 U.S. 475, 499-500 (1973); Todd v. Baskerville, 712 F.2d 70, 72 (4th Cir. 1983). A prisoner challenging the conditions of his confinement generally must bring his claims pursuant to 42 U.S.C. § 1983 (if a state inmate) or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (if a federal inmate) See Wilson v. Johnson, 535 F.3d 262, 265 (4th Cir. 2008); Rodriguez v. Ratledge, 715 F. App'x 261, 265-66 (4th Cir. 2017)[noting "courts have generally held that a § 1983 suit or a Bivens action is the appropriate means of challenging conditions of confinement, whereas § 2241 petitions are not" and dismissing conditions of confinement claim in habeas action]; Moore v. Driver, No. 1:07CV166, 2008 WL 4661478, at 3 (N.D.W.Va. Oct. 21, 2008)[an inmate "cannot bring his claim regarding his custody classification in the context of § 2241 petition, because § 2241 petitions generally cannot be used to challenge conditions of confinement"](citing Preiser, 411 U.S. at 499-500); see also Velazquez v. Superintendent Fayette SCI, 937 F.3d 151, 158 (3d Cir. 2019) [a petitioner who seeks habeas relief for claims that do not qualify as attacking the fact, duration, or execution of a sentence may not maintain the suit as a habeas action]; Ricco v. Conner, 146 F. App'x 249, 253-54 (10th Cir. 2005)[holding that a § 2241 petition was not the proper mechanism to challenge disciplinary proceedings that resulted in denial of a prisoner's visitation privileges]; Gee v. Murphy, 325 F. App'x 666, 670 (10th Cir. 2009) [dismissing a § 2241 petition, because it "challenges only administrative decisions affecting [the petitioner's] day-to-day circumstances and prison privileges"]. Further, even if Petitioner can bring his conditions of confinement claims in this § 2241 action, the claims should be dismissed as the claims because Petitioner cannot show that he has a protected liberty interest, as discussed above.
Recently, the Fourth Circuit in Wilborn v. Mansukhani, 795 F. App'x 157 (4th Cir. 2019)(unpublished) noted a circuit split as to the question of whether conditions of confinement claims may be brought in a habeas petition, with seven of the ten circuits addressing the issue concluding that such claims cannot be brought in a habeas petition. While acknowledging that the Fourth Circuit has not definitively ruled on the issue, the court noted that previous unpublished Fourth Circuit cases have found that conditions of confinement claims could not be brought in a § 2241 petition (see Lee v. Winston, 717 F.2d 888, 892 (4th Cir. 1983); Rodriguez v. Ratledge, 715 F. App'x 261, 265-66 (4th Cir. 2017) (per curiam); Braddy v. Wilson, 580 F. App'x 172, 173 (4th Cir. 2014) (per curiam)) and concluded that Wilborn's case (in which he sought to have the BOP reconsider where he was being housed) did not fall within the scope of habeas corpus. Wilborn v. Mansukhani, 795 F. App'x at 164.
RECOMMENDATION
Accordingly, it is recommended that the Petition in this action be dismissed without prejudice and without requiring Respondent to file a return.
Petitioner's attention is directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge March 25, 2020
Charleston, South Carolina
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 835
Charleston, South Carolina 29402
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).