Opinion
C/A No. 4:19-2546-TMC-TER
02-04-2020
NAKIA DYSHANE HORNE, Petitioner, v. M. TRAVIS BRAGG, Respondent.
REPORT AND RECOMMENDATION
The pro se petitioner filed a petition for writ of habeas corpus on September 10, 2019, pursuant to 28 U.S.C. § 2241. At the time of the filing of the petition, Petitioner was housed at the Federal Correctional Institution (FCI) Bennettsville, South Carolina. On November 20, 2019, the Respondent filed a motion to dismiss. (ECF No. 15). The undersigned issued an order filed November 21, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences if he failed to respond adequately. (ECF No. 16). Petitioner failed to file a response.
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
RULE 41(B) DISMISSAL
A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal. Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
In the present case, the Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's Motion to Dismiss or the court's order requiring him to respond. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).
In the alternative, the Motion to Dismiss will be addressed below.
FACTUAL BACKGROUND/ ANALYSIS
At the time of the filing of this petition, Petitioner was incarcerated at the Federal Correctional Institution Bennettsville, South Carolina (FCI Bennettsville). Petitioner filed this petition seeking relief pursuant to 28 U.S.C. § 2241. Specifically, he filed this action challenging the manner in which his sentence was calculated by the Federal Bureau of Prisons seeking a re-calculation and application of prior custody credit for immediate release.
In the Motion to Dismiss, Respondent asserts that this petition must be dismissed as it is moot because Petitioner was released from custody on November 5, 2019. Respondent attached the declaration of Amy Williams, the Legal Assistant for the South Carolina Consolidated Legal Center located at the Federal Correctional Institution (FCI), Edgefield, South Carolina, declaring that she has access to the information regarding inmates which includes the BOP's SENTRY computer database which tracks the status, activities, administrative remedies and disciplinary actions of inmates in federal custody. (ECF No. 15-1). Williams states that the sentence for Petitioner, a federal inmate who was formerly incarcerated at FCI Bennettsville, South Carolina, was recalculated at the BOP's Designation and Sentence Computation Center on November 5, 2019, which resulted in Petitioner's immediate release from custody on that date. Petitioner did not file a response.
In light of the fact that Petitioner was released from the FCI on November 5, 2019, and it appearing there is no further relief that this court can provide, it is recommended that this action be dismissed as moot and Respondent's motion to dismiss (Doc. #11) be granted. See e.g., Alston v. Adams, 178 Fed. Appx. 295, 2006 WL 1194751 (4th Cir. 2006). Where a petitioner attacks his sentence only and not the validity of his conviction, expiration of the sentence moots the case. See Lane v. Williams, 455 U.S. 624, 631 (1982).
A case becomes moot "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Therefore, when changes occur during the course of litigation that eliminate the petitioner's need for the requested relief, the case must be dismissed as moot. See Friedman's Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002) ("[O]ne such circumstance mooting a claim arises when the claimant receives the relief he or she sought to obtain through the claim.").
Respondent did not indicate that there were any collateral consequences at issue and Petitioner did not file a response. Regardless, Petitioner was only attacking the execution of his sentence. "Where a petitioner attacks his sentence only and not the validity of his conviction, expiration of the sentence moots the case." Deitemeyer v. Fed. Bureau of Prisons, 2014 WL 6473520, at *2 (D.S.C. Nov. 18, 2014) (citing Lane v. Williams, 455 U.S. 624, 631 (1982)). --------
CONCLUSION
Accordingly, it is recommended that the petition be dismissed pursuant to Rule 41b of the Federal Rules of Civil Procedure.
In the alternative, it is recommended that Respondent's Motion to Dismiss (ECF No. 15) be granted and the petition dismissed as moot.
Respectfully Submitted,
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge February 4, 2020
Florence, South Carolina