Opinion
Civil Action No. 6:20-2034-BHH-KFM
12-14-2020
David E. McCall, Jr., Petitioner, v. S.W. Phelps, Respondent.
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the respondent's motion to dismiss or, in the alternative, motion for summary judgment (doc. 17). The petitioner, a federal prisoner proceeding pro se, seeks habeas corpus relief pursuant to 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.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district court.
BACKGROUND
The petitioner is currently incarcerated by the Bureau of Prisons ("BOP") at Federal Correctional Institution ("FCI") Edgefield (doc. 1 at 1). On September 13, 2019, the petitioner was provided with a written incident report, notifying him of a charge of violating Prohibited Act Code 113, Possessing Drugs/Alcohol (doc. 17 -1 at 3). In the incident report, the reporting officer noted:
Inmate MCCALL, DAVID, #65200-019 was assigned to cell 401 of Unit A-3 had approximately 5 gallons of what smelled like, home-made intoxicants in a plastic bag, which was found inside the issued gray bin. The home-made liquid was tested using
the ALCO-SENSOR IV, that registered at .400 and tested positive for home-made intoxicants.(Id.). The lieutenant tasked with conducting an investigation into the incident advised the petitioner of his rights on the same day (id. at 5). The petitioner told the lieutenant investigating the incident that "it was my wine not my cellies" (id.). A Unit Disciplinary Committee ("UDC") hearing was held on September 16, 2019, and, during this hearing, the petitioner stated that he was taking responsibility (id. at 4). The incident report was forwarded to a disciplinary hearing officer ("DHO") for further processing (id.).
The petitioner was provided with a notice of discipline hearing before the DHO form on September 16, 2019 (doc. 17-1 at 8). The petitioner was also provided with a form advising him of his rights at the DHO hearing (id. at 9). The DHO hearing was held on September 23, 2019 (id. at 10). The petitioner waived his right to a staff representative and his right to call any witnesses (id. at 10-11). The petitioner was provided an opportunity to make a statement at the DHO hearing, but he stated that he had no comment (id. at 10). In finding that the petitioner committed the prohibited act, the DHO imposed the following sanctions: disallowance of 41 days of good conduct time ("GCT"), 15 days of disciplinary segregation, and six months' loss of email and commissary privileges (id. at 12). The parties dispute when the petitioner received the DHO report. The petitioner contends that he did not receive the DHO report until he received a copy of the respondent's motion now before the court (doc. 20 at 3). The respondent, however, submits that the petitioner received a copy of the DHO report on November 15, 2019 (docs. 17 at 6; 17-1 at 1, 13).
FEDERAL PETITION
On May 29, 2020, the petitioner filed a § 2241 petition in which he contends that his due process rights were violated in his DHO hearing (doc. 1 at 2). The petitioner alleges that (1) the DHO was biased, (2) the DHO's decision was based on insufficient evidence, (3) he did not receive a copy of the DHO report until receiving the respondent's instant motion; (4) the UDC failed to record his witnesses or document his request for a staff representative; (5) the incident report failed to include basic information; and (6) the UDC ignored his request for lab results and a chain of custody log, which denied him the right to present evidence. The petitioner seeks an order directing the BOP to expunge his record, lift the sanctions against him, provide him with his standard inmate pay, and restore his 41 days of GCT (id. at 11).
On September 29, 2020, the respondent filed a motion to dismiss or, in the alternative, motion for summary judgment (doc. 17). On the same date, by order filed pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately (doc. 18). On November 12, 2020, the petitioner filed a response in opposition to the respondent's motion (doc. 20).
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
As noted, the respondent has moved to dismiss the petition pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Alternatively, the respondent has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. As matters outside the pleadings have been presented to and not excluded by the court (see doc. 17-1), the motion to dismiss will be treated as one for summary judgment under Rule 56. 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). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the 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. In 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).
In the Roseboro order issued on September 29, 2020, the petitioner was placed on notice that if the court considers materials outside of the pleadings, a motion to dismiss is converted to a motion for summary judgment under Rule 56 (doc. 18 at 1-2).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (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; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff'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 the granting of 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.
Due Process
As set out above, the DHO imposed sanctions on the petitioner that included loss of GCT (doc. 17-1 at 12). A prisoner has due process rights regarding his GCT credits, which implicate a protected liberty interest. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). In disciplinary proceedings that may result in the loss of GCT credit, an inmate has a right to advance written notice of charges at least 24 hours before the hearing; to a fair and impartial tribunal; to call witnesses and to present documentary evidence in his defense; to receive a written statement explaining the tribunal's findings; and, "[w]here an illiterate inmate is involved. . . or . . . the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case," to seek the aid of a fellow inmate or prison staff. Id. at 563-70.
In addition, "revocation of good time does not comport with 'the minimum requirements of procedural due process' unless the findings of the prison disciplinary board are supported by some evidence in the record." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (quoting Wolff, 418 U.S. at 558). The Supreme Court of the United States has explained, "[t]his standard is met if 'there was some evidence from which the conclusions of the administrative tribunal could be deduced. . . ." Id. at 455 (quoting United States ex rel. Vajtauer v. Comm'r of Immigration, 273 U.S. 103, 106 (1927)). Ascertaining whether the standard has been 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." Id. at 455-56. Explaining the standard further, the Court provided, "[t]he Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board. Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing." Id. at 457. Hill instructs that a reviewing court does not make an independent assessment of the credibility of the witnesses or weigh the evidence. Id. at 455-56.
Here, the petitioner asserts that his due process rights were violated because the DHO's decision was based on insufficient evidence (doc. 1 at 6; doc. 20 at 10). However, the DHO considered the evidence and, based on the ALCO-SENSOR IV test results, the fact that the petitioner did not provide any evidence to refute the charge against him, the fact that the petitioner did not make a statement at the hearing, the reporting officer's written account of the incident, and supporting documents, concluded that the greater weight of the evidence supported finding that the petitioner committed the prohibited act (doc. 17-1 at 11-12). The petitioner argues that the DHO's reliance on the ALCO-SENSOR IV test was improper and submits that this test is not approved by the BOP, is not manufactured to test whether a liquid contains alcohol, and is a breathalyser that is manufactured solely for use on an individual (doc. 1 at 10; doc. 20 at 6-8). However, as set out above, it is clear from the record that the ALCO-SENSOR IV test results are not the only evidence upon which the DHO relied. Moreover, even disregarding the ALCO-SENSOR IV test results altogether, the DHO's finding was supported by "some evidence in the record," as required by Hill.
The petitioner further argues that his due process rights were violated because the incident report failed to report basic information, such as the fact that the cell was occupied by another inmate who was present when the liquid was discovered (doc. 1 at 12). However, the petitioner informed the investigating officer that "it was my wine not my cellies" (doc. 17-1 at 5). Moreover, on the same date as the incident report, an officer notified the operations lieutenant via a memorandum that another inmate was assigned to cell 401 with the petitioner (doc. 17-1 at 7). Thus, the undersigned finds that the petitioner's argument is without merit and that "some evidence in the record" supported the DHO's finding.
A review of the disciplinary record also reveals that the petitioner received all of the due process safeguards afforded to him by Wolff. The petitioner received written notice of the charges at least 24 hours in advance of the DHO hearing. Specifically, the petitioner received written notice of the charge on September 13, 2019, and the DHO hearing was held on September 23, 2020 (doc. 17-1 at 3, 10). The petitioner was advised of his rights, including his right to a staff representative, his right to present and call witnesses, his right to make statements in his defense, and his right to appeal the decision of the DHO (id. at 9-10). The petitioner was provided an opportunity to make a statement, but he stated that he had no comment (id. at 10). The petitioner waived his rights to a staff representative and to call any witnesses (id. at 10-11). While the petitioner contends that the UDC failed to record his witnesses or document his request for a staff representative, the respondent has attached an incident report, a notice of discipline hearing before the DHO form, and a DHO hearing report noting that the petitioner waived his right to a staff representative or to call any witnesses (id. at 5, 8, 10-11; doc. 1 at 11). Moreover, the plaintiff signed the notice of discipline hearing before the DHO form indicating that he did not wish to have a staff representative or any witnesses (doc. 17-1 at 8). Therefore, the plaintiff's conclusory allegations, without more, are insufficient to show a genuine issue of material fact regarding his alleged inability to call witnesses or to have a staff representative.
The petitioner argues that he was not provided a copy of the DHO report until he received a copy of the respondent's instant motion and submitted an affidavit making this assertion (docs. 20 at 3; 21-1 at 1). The petitioner further contends that his lack of a copy of the DHO report interfered with his ability to properly appeal the DHO hearing and requests that the court order the respondent to produce log books, which would be the "best evidence" of whether he received the DHO report (doc. 20 at 3-5). The respondent, however, asserts that the plaintiff received the DHO report on November 15, 2019, and presented an affidavit from the BOP's legal assistant testifying to this date and a copy of the DHO report indicating that it was delivered to the petitioner on that date (docs. 17 at 6; 17-1 at 1, 13).
Even assuming that the plaintiff did not receive a copy of the DHO report until the respondent filed the instant motion, the petitioner's argument is without merit. Courts have found that due process claims based on a failure to receive the DHO report are moot once the inmate has received the report, and it is undisputed that the petitioner has now received the DHO report. See, e.g., Shahan v. Ormond, C.A. No. 3:18CV200-HEH, 2018 WL 6681210, at *4 (E.D. Va. Dec. 19, 2018) (concluding that an inmate's claim regarding his failure to receive the DHO report was moot because, after initiating the action, the inmate receive the DHO report), aff'd, 778 F. App'x 217 (4th Cir. 2019). Further, specifically regarding the petitioner's appeals, the petitioner has failed to show that he was prejudiced by the delay in receiving the DHO report. See Brown v. Braxton, 373 F.3d 501, 508 (4th Cir. 2004) (stating that even if a prison official's actions create a potential due process violation, a habeas petitioner must demonstrate that he was harmed by the violation in order to obtain relief) (citations omitted). Despite denial of the petitioner's administrative remedies due to his failure to attach a copy of the DHO report, the petitioner has still had the opportunity to challenge his disciplinary action in this court. See, e.g., Lomas v. Vereen, C.A. No. 6:19-622-JMC-KFM, 2019 WL 8375933, at *5-6 (D.S.C. Oct. 17, 2019) (recommending granting summary judgment for respondent on petitioner's § 2241 petition, despite a one-year delay in the petitioner receiving the DHO report, because the respondent did not argue that the petitioner failed to exhaust his administrative remedies and the petitioner was able to challenge the disciplinary action before the court), R&R adopted by 2020 WL 913785 (D.S.C. Feb. 26, 2020); Calixto v. Masters, Case No. 1:15-cv-12778, 2016 WL 2600431, at *4 (S.D. W. Va. 2016) (noting that the petitioner was not prejudiced by the delay in receiving his DHO report because, although his appeal was denied as untimely, the petitioner was able to proceed with judicial review of the DHO's decision), R&R adopted by 2016 WL 2343890 (S.D. W. Va. May 3, 2016).
Moreover, to the extent that the petitioner argues that there was a due process violation based on the fact that he received the DHO report outside of the time-frame specified in BOP policy, departure from BOP policy, alone, does not give rise to a due process violation. Bauer v. Warden FCI Williamsburg, Case No. 6:16-cv-304-RMG, 2017 WL 318683, at *2 (D.S.C. Jan. 23, 2017) (noting that a petitioner "did receive the DHO's decision outside of the 15-day period outlined in the BOP's policy, but the BOP's violations of its own policies do not amount to a due process violation."). In addition, while it is well settled that the petitioner has a due process right to receive a copy of the DHO report, this right does not extend to receiving the DHO report within 15 days. See Wolff, 418 U.S. at 563-76 (noting that due process requires a written statement setting out the decision and the reasons therefore); Reid v. Mansukhani, C.A. No. 5:16-cv-3280-RMG, 2017 WL 2378850, at *3 (D.S.C. June 1, 2017) ("Petitioner has no constitutional right to receive the DHO report within the 15-day period outlined in the BOP's regulations."), aff'd, 697 F. App'x 154 (4th Cir. 2017); Huang v. Mahsukhani, C.A. No. 4:16-1269-BHH, 2016 WL 6694530, at *3 (D.S.C. Nov. 15, 2016) (noting that the BOP's time limits are not mandatory and that "Wolff did not set any specific time limits for a prisoner to receive an administrative detention order or a written report"). Consequently, the undersigned finds that the petitioner's due process rights were not violated by the respondent's purported failure to provide a copy of the DHO report until the filing of the instant motion.
The petitioner also argues that his due process rights were violated because the DHO was biased (doc. 1 at 6). The petitioner appears to argue that the DHO was biased because of the DHO's partial reliance on the ALCO-SENSOR IV test results (id. at 12-13; doc. 20 at 10). However, even accepting the petitioner's allegations about the ALCO-SENSOR IV test as true, the petitioner has failed to show a genuine issue of material fact regarding the DHO being biased. Instead, as shown by the DHO report, it appears that the petitioner had a neutral and detached hearing. The DHO report indicated the basis for the DHO's finding that the petitioner committed the prohibited act, the evidence relied upon, the action taken by the DHO, and the reasons for the action. Moreover, as set out above, it is clear from the record that the ALCO-SENSOR IV test results are not the only evidence upon which the DHO relied. A DHO relying in part on an incident report, which included test results from a test that may have been used improperly, fails to show a genuine issue of material fact regarding the petitioner's assertions of bias. Additionally, even if use of this test was against BOP policy, violation of a BOP policy does not equate to a due process violation. See Bauer, 2017 WL 318683, at *2. Thus, the petitioner's allegations of bias, without more, are insufficient to survive a motion for summary judgment. See Matherly v. Andrews, 859 F.3d 264, 280 (4th Cir. 2017) ("Conclusory or speculative allegations do not suffice to oppose a properly supported motion for summary judgment, nor does a mere scintilla of evidence.") (citations and internal quotation marks omitted).
To the extent that the petitioner attempts to assert an equal protection claim, the petitioner's claim fails because he has not presented any evidence "that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." See Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).
The petitioner further argues that the UDC ignored his request for lab results and a chain of custody log, which denied him the right to present evidence (doc. 1 at 14). The BOP's Inmate Discipline Program policy provides that the inmate does not receive a copy of the investigation, which is comprised of sections 23 through 27 of the incident report. See BOP P.S. 5270.09, Inmate Discipline Program. p. 20 (available at https://www.bop.gov/PublicInfo/execute/policysearch?todo=query&series=5000#). However, if a case is ultimately forwarded to the DHO, the DHO "must give a copy of the investigation and other relevant materials to the inmate's staff representative, if requested, for use on the inmate's behalf." Id. The records reflect that the petitioner waived his right to a staff representative who may have been able to assist him with reviewing such documentation (docs. 13-3, 13-4, 13-5).
Moreover, even assuming the petitioner was denied due process by the respondent's failure to provide him with the lab results and chain of custody log prior to the hearing, the procedural requirements set forth in Wolff are subject to harmless error analysis, which requires that the court determine whether the evidence could have aided the petitioner's defense. Lennear v. Wilson, 937 F.3d 257, 276-77 (4th Cir. 2019). As discussed below, the undersigned finds that any such violation was harmless. See Mendoza v. Tamez, 451 F. App'x 715, 717 (10th Cir. 2011) ("[E]ven assuming he was entitled to see the [lab report and chain of custody form] before the hearing, ... Mendoza does not explain what he intended to do with the forms, much less how his limited access to them prejudiced his defense.") (citations omitted).
Disregarding the ALCO-SENSOR IV test evidence altogether, there was some evidence in the record to support the DHO's finding. Further, a copy of the lab results would not have provided any additional information than that already provided to the petitioner in the incident report. Specifically, the incident report stated that the "liquid was tested using the ALCO-SENSOR IV, that registered at .400 and tested positive for home-made intoxicants" (doc. 17-1 at 3). Additionally, the petitioner has failed to explain what he intended to do with the documents or how the absence of them prejudiced his defense. Consequently, the undersigned recommends that the district court find that the petitioner received the due process safeguards outlined in Wolff.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the district court grant the respondent's motion for summary judgment (doc. 17).
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge December 14, 2020
Greenville, South Carolina
The attention of the parties is directed to the important notice on the next page.
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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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).