Opinion
Case No. 8:16-cv-01803-RBH-JDA
03-13-2017
Deshawn Greene, Petitioner, v. Warden FCI Edgefield, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Respondent's motion to dismiss or, in the alternative, for summary judgment. [Doc. 21.] Petitioner, proceeding pro se, is a federal prisoner seeking relief under 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., this 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 May 27, 2016 [Doc. 1] and subsequently, at the direction of the Court, submitted the Petition on the Court's form [Doc. 1-2]. On October 24, 2016, Respondent filed a motion to dismiss or, in the alternative, for summary judgment. [Doc. 21.] On October 25, 2016, the Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 22.] Petitioner's response in opposition was filed on the docket on December 29, 2016. [Doc. 28.]
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, this action was filed on May 27, 2016. [Doc. 1 at 8 (Petition, signed by Petitioner on May 27, 2016).]
Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondent's motion for summary judgment be granted and the Petition be denied.
BACKGROUND
Petitioner is incarcerated at the Federal Correctional Institution located in Edgefield, South Carolina. [Doc. 1-2 at 1.] Petitioner alleges that, while fasting for the holy month of Ramadan, he was called to provide a urine sample. [Id. at 8.] Because of the high temperature and his sweating profusely while working in a dish room, Petitioner asserts that he was dehydrated and needed additional time to hydrate himself. [Id.] Petitioner notified staff during the two-hour period for providing a urine sample that he had not consumed liquid for almost 24 hours and requested an extension of time; however, he was denied an extension of time to provide the urine sample. [Doc. 1 at 6.] He contends that the denial of extra time to provide the urine sample was a violation of BOP policy and Petitioner's due process rights. [Id. at 7.] Petitioner seeks to have his incident report expunged and his good time credits restored. [Doc. 1-2 at 9; Doc. 1 at 8.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Erickson v. Pardus, 551 U.S. 89 (2007); Estelle v. Gamble, 429 U.S. 97, 106 (1976). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Haines, 404 U.S. 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 Standard
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). However, the court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the [petition's] allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the [respondent] fair notice of what the . . . claim is and the grounds upon which it rests." While a [petition] attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a [petitioner's] obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the [petition] are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
"A claim has facial plausibility when the [petitioner] pleads factual content that allows the court to draw the reasonable inference that the [respondent] is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a [respondent] has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the [respondent's] liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (Where a petition pleads facts that are merely consistent with a respondent's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a petitioner to articulate facts that, when accepted as true, demonstrate that the petitioner has stated a claim that makes it plausible the petitioner is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure 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. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). "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." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
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.(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.
Because Respondent has presented to the Court matters outside the pleadings, which the Court did not exclude, Respondent's motion to dismiss 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); United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks on the "computation and execution of the sentence [and] the sentence itself"). A petition pursuant to § 2241 challenging the execution of a federal prisoner's sentence generally addresses "such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions." Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (citing Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997)).
DISCUSSION
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in a § 2241 matter); Timms v. Johns, 627 F.3d 525 (4th Cir. 2010) (noting courts require "exhaustion of alternative remedies before a prisoner can seek federal habeas relief" (internal quotation marks omitted)). Exhaustion allows prison officials to develop a factual record and "an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Jones v. Bock, 549 U.S. 199, 204 (2007). Any arguments not advanced at each step of the administrative appeal are procedurally defaulted. See Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir. 2002). Moreover, if a prisoner cannot obtain an administrative remedy because of his failure to timely appeal at the administrative level, then the prisoner has procedurally defaulted his § 2241 claim, see Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3rd Cir. 1996), cited with approval in Watkins v. Compton, 126 F. App'x 621, 622 (4th Cir. 2005); Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994), unless the prisoner can demonstrate cause and prejudice for the failure, Moscato, 98 F.3d at 761. Here, Respondent stipulates that Petitioner exhausted his administrative remedies. [Doc. 21 at 4.]
Petitioner's Disciplinary Action
According to the incident report, at 5:00 p.m. on June 23, 2015, Petitioner was ordered to take a random urinalysis test. [Doc. 21-3 at 1.] He was provided with an eight-ounce cup of water and given two hours to submit a urine sample, making his deadline 7:00 p.m. [Id.] Petitioner was unable to provide an adequate amount of urine to be tested, stating, "I just can't go." [Id.] Petitioner was charged with Code 110—refusing to provide a urine sample. [Id.] The incident report was delivered to Petitioner at 11:40 a.m. on June 24, 2015. [Id.]
Lieutenant P. Robertson investigated the incident report on June 24, 2015. [Id. at 2.] During the investigation, Petitioner stated, "I just couldn't go to the bathroom." [Id.] Lieutenant Robertson determined that the incident report supported the charge of Code 110 and that the charge was warranted. [Id.] He forwarded the report to the Unit Discipline Committee ("UDC") for further action and disposition. [Id.]
Before the UDC on June 30, 2015, Petitioner stated, "I couldn't go to the bathroom." [Id.] The UDC referred the charge to a Disciplinary Hearing Officer ("DHO") for further hearing. [Id.] Also on June 30, 2015, Petitioner received notice of the DHO hearing and of his rights at the hearing, and he requested a staff representative—J. Johnson—and indicated he did not wish to call any witnesses. [Docs. 21-4, 21-5.]
The DHO conducted a hearing on July 7, 2015. [Doc. 21-7.] Petitioner was present, and the DHO advised Petitioner of his rights. [Id. at 1.] Petitioner appeared with a staff representative, J. Johnson. [Id.] Petitioner did not request any witnesses. [Id.] Petitioner asserted to the DHO that he had been participating in Ramadan and had nothing to eat or drink since 9:00 p.m. the evening before he was ordered to provide a urine sample. [Id.] He also stated that he had been working in the dish room where he had been sweating without rehydrating. [Id.] At the end of the two hours, Petitioner was not able to provide a urine sample. [Id.] Petitioner contended that he did not refuse to provide a urine sample; he tried but was unable to provide one. [Id.]
In reaching his decision, the DHO considered the following evidence: the reporting officer's statement that Petitioner was given the required two hours per policy and was unable to provide an adequate sample amount, resulting in a presumption that Petitioner was unwilling; and Petitioner's statement that he had been fasting and working in the dish room and was unable to provide a urine sample. [Id. at 2.] Upon consideration of the evidence, the DHO determined Petitioner had committed the charged offense. [Id.] The DHO imposed the following sanctions: (1) disallowance of 41 days of good conduct time; (2) disciplinary segregation for 30 days, suspended 180 days; (3) loss of visiting privileges for six months; and (4) loss of visitor privileges for six months. [Id.]
Analysis
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). In Hill, the Supreme Court declined to adopt a more stringent evidentiary standard as a constitutional requirement, stating:
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.
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. 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; see also 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 noted in Hill:
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.
A review of the record reveals the due process requirements stated in Wolff were observed in this case. Petitioner was provided with written notice of the charges more than 24 hours before a hearing on the charges [Doc. 21-4] and was provided a copy of the DHO report that includes information about the evidence the DHO relied on and the reasons for the disciplinary action [Doc. 21-7]. Before the hearing, Petitioner was advised in writing of his right to call witnesses, to present documentary evidence, and to have a staff representative at the hearing; Petitioner refused to sign the form advising him of his rights. [Doc. 21-5.] At the DHO hearing, Petitioner appeared with a staff representative and did not request any witnesses. [Doc. 21-7.] Finally, Petitioner has failed to provide any evidence that the DHO was not impartial. Rather, the record establishes the DHO conducted a hearing and examined the record, including the evidence put forth by Petitioner in the form of his statement. [Id.] Accordingly, Petitioner was afforded all due process required under Wolff.
As previously stated, judicial review of prison disciplinary actions is limited solely to a determination of whether there is some evidence in the record to support the DHO's decision. See Hill, 472 U.S. at 454-56. Here, there is some evidence in the record to support the DHO's decision that Petitioner committed the offense of refusing to provide a urine sample; indeed, Petitioner does not dispute that he failed to provide a urine sample during the two-hour period. Instead, Petitioner argues he needed more time to hydrate because he had been fasting and working in the dish room. However, Program Statement 6060.08, Urine Surveillance and Narcotic Identification, provides that "[a]n inmate is presumed to be unwilling if the inmate fails to provide a urine sample within the allotted time period. An inmate may rebut this presumption during the disciplinary process." [Doc. 21-8 at 4.] Here, there is some evidence that Petitioner refused to provide a urine sample because his failure to provide it within the two-hour period resulted in a presumption that he was unwilling to provide it. Therefore, the evidentiary standard of Hill is satisfied in this case. In conclusion, Petitioner was afforded the due process required under Wolff, and some evidence supports the DHO's decision; accordingly, Respondent's motion for summary judgment should be granted, and the Petition should be denied.
To the extent Petitioner argues that the failure to allow him more time to provide a urine sample unconstitutionally burdened his religious exercise, such a claim is more appropriate in a 42 U.S.C. § 1983 action. Petitioner brought this case as a § 2241 action and seeks restoration of good time credits, which is generally addressed in a § 2241 action.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion to dismiss or, in the alternative, for summary judgment be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge March 13, 2017
Greenville, South Carolina