Opinion
8:20-cv-04126-MGL-JDA
05-13-2021
Martavious Mercery, Petitioner, v. S. W. Phelps Warden, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court on Respondent's motion to dismiss or, in the alternative, for summary judgment. [Doc. 24.] Petitioner is a federal prisoner, proceeding pro se, who seeks relief pursuant to 28 U.S.C. § 2241. Pursuant to 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 November 20, 2020.[Doc. 1.] On March 16, 2021, Respondent moved to dismiss the Petition or, alternatively, for summary judgment. [Doc. 24.] On March 22, 2020, in accordance with an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), Petitioner was advised to respond to the motion and of the possible consequences if he failed to adequately respond to Respondent's motion. [Doc. 26.] On April 5, 2021, the Clerk docketed a response from Petitioner opposing Respondent's motion. [Doc. 28.] Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondent's motion be granted.
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). Accordingly, this action was filed on November 20, 2020. [Doc. 1-1 at 2 (envelope marked as received by prison mailroom on November 20, 2020).]
BACKGROUND
Petitioner is currently incarcerated at the Federal Correctional Institution (“FCI”) located in Edgefield, South Carolina. [Doc. 1 at 1.] In November 2019, Petitioner received an incident report (“the Incident Report”) charging him with violations of Code 108, possessing a hazardous tool (cellphone) and Code 331, possessing a non-hazardous tool (tobacco). [Doc. 24-2 at 2-4.] A few days later, Petitioner was found guilty and the Disciplinary Hearing Officer (“DHO”) imposed sanctions, including 30 days' disciplinary segregation, loss of six months of visiting, commissary, and phone privileges, and loss of 41 days' good-time credits. [Id. at 3; Doc. 24-5 at 5.]
Petitioner alleges he filed an appeal on March 2, 2020, to the Regional Director's Office; that he received a rejection of his appeal dated September 28, 2020, stating that the appeal was untimely; and that on July 20, 2020, he appealed to the Bureau of Prison's Central Office, but that his appeal was rejected. [Doc. 1 at 2-3.]
In this action, Petitioner alleges that his due process rights have been violated because “[t]he DHO report was delivered to [him] 7 months after the 11-25-19 hearing on 6-24-20 in direct violation of prison policy that sets time for inmate to appeal decision to ‘20 calendar days'” and he “needed the DHO Report to file a timely appeal.” [Id. at 6.] For his relief, he seeks to have his record expunged and his 41 days of good-time credit restored. [Id. at 7.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. 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 and Motion for Summary Judgment Standards
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). If on a motion pursuant to Rule 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment under Rule 56. See 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). 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:
(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.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.
Because Respondent, in his motion, presented to the Court matters outside the pleadings, which the Court is not excluding, Respondent's motion 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).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attack[ing] the computation and execution of the sentence rather than the sentence itself.” United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (per curiam). 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); see also Manigault v. Lamanna, No. 8:06-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.”). Thus, an analysis under § 2241 is the appropriate mechanism by which to review Petitioner's DHO hearing.
DISCUSSION
Respondent argues that he is entitled to summary judgment in this action alleging violation of Petitioner's due process rights. [Doc. 24 at 9-15.] The Court agrees. Petitioner's Disciplinary Action
According to the Incident Report,
On November 12, 2019 at 6:55 a.m., I[, ] D. Toth, SIS Technician, was conducting a search of Unit B2, Cell 205, and located contraband hidden inside the mattress removed from the top bunk. The mattress contained a rip on the back side near the pillow section. Upon searching inside the mattress cover, I located a grey pouch containing[] 21 Newport [c]igarettes and a small plastic bag with broken pieces of Newport cigarettes. I continued to search the inside mattress material and located a white in color pouch. This pouch contained a black in color L8STAR cellular telephone and a black in color Bluetooth earpiece. Continuing the search of the cell, a grey pouch was located inside a foot locker bin. This pouch contained a homemade cellular telephone charging device and a wire adaptor removed from the MP3 connection from an inmate computer station. Inmate Martavious Mercery, Reg. No. 96184-20, was assigned to the top bunk and was sleeping on the top bunk when staff entered the cell. When asked by me, D. Toth, SIS Technician, about the contraband, Inmate Mercery[] took full ownership of the [c]ellular [t]elephone, Bluetooth ear piece, tobacco and charging device when asked directly if it was his.[Doc. 24-2 at 2.] Petitioner was therefore charged with violations of Code 108, possessing a hazardous tool (cellphone) and Code 331, possessing a non-hazardous tool (tobacco) [Doc. 24-3 at 2.] Petitioner received a copy of the Incident Report on November 12, 2019, and he was advised of his rights on November 15, 2019. [Docs. 24-2 at 2-4; 24-4 at 2.]
A unit discipline committee (“UDC”) hearing was held on November 15, 2019. [Doc. 24-2 at 3.] The Incident Report was then forwarded to the DHO for further processing. [Id.]
The DHO conducted a hearing on the charge on November 25, 2019. [Doc. 24-5 at 2.] Petitioner was present. [Id.] Petitioner declined to have a staff representative present and declined to request a witness. [Id.] Petitioner neither admitted nor denied the charge. [Id.] In reaching the decision that Petitioner had committed the charged offense, the DHO considered the following evidence: “Officer's written report, memorandum, photos, and Chain of Custody.” [Id. at 3.]
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;
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.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). The Court in Hill declined to adopt a more stringent evidentiary standard as a constitutional requirement, stating:
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 (internal citation omitted). 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; 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 in Hill noted:
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 have been observed in this case. Petitioner was provided with written notice of the charges more than 24 hours before a hearing on the charges. [Doc. 24-2 at 4.] 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 signed the form to indicate he had been advised of his rights. [Doc. 24-4 at 2.] Petitioner did not request a staff representative or witnesses to assist him in preparing for the hearing and he neither admitted nor denied the charge. [Doc. 24-5 at 2.] Nothing in the record indicates that the DHO was not impartial.
Petitioner claims he was denied due process because he was not given a copy of the DHO report until seven months after the hearing, and, even then, the report he received was unsigned. [Doc. 1 at 6.] However, after filing his Petition, Petitioner was provided a signed copy of the report, on January 26, 2021. [Doc. 24-5 at 5.] The Court notes that the failure to provide a DHO report within the time frame contemplated by the regulations is not itself a violation of due process, and the fact that Petitioner now has been provided the report moots any due process claim regarding the failure to provide the report earlier. Bivins v. Warden, No. 6:20-1065-SAL-KFM, 2020 WL 7389154, at *4 (D.S.C. Oct. 26, 2020) (citing cases), Report and Recommendation adopted by 2020 WL 7384731 (D.S.C. Dec. 16, 2020).
Respondent represents that “Petitioner has been provided a copy of the DHO report by his Unit Team at FCI Edgefield, on more than one occasion.” [Doc. 24 at 10.] And Petitioner concedes that he received an unsigned copy on June 24, 2020. [Doc. 1 at 3, 6.] Regarding Petitioner's allegation that the report he copy of the report provided to him on June 24, 2020, was unsigned, Respondent explains that “[t]he DHO report was prepared in and is contained in BOP's electronic system known as ‘DARTS' (Discipline & Administration Reintegration Tracking System)” and that “[i]n DARTS, the DHO report contains the DHO's printed name, but does not include a signature, either written or electronic.” [Doc. 24 at 10-11 n.4.]
As for the “some evidence” standard, the DHO based his guilt finding on evidence that the contraband was found in his bunk and that he “took full ownership of the [contraband] when directly asked if it was his.” [Doc. 24-5 at 4.] The Court concludes therefore that this evidence satisfied the “some evidence” standard.
In his response opposing Respondent's motion, Petitioner alleges that he actually “has never accepted responsibility for the contraband items” and that they “were already in the mattress upon [his] placement in the cell.” [Doc. 28 at 6.] Given that Petitioner chose not to present witnesses or other evidence in support of this theory before the DHO, this argument appears to be in the nature of an “actual innocence” argument rather than a challenge to the constitutionality of the process that he received. However, “a claim of actual innocence is generally not a basis for federal habeas corpus relief.” Williams v. Warden, No. 1:17-946-JMC-SVH, 2017 WL 8794895, at *4 (D.S.C. Oct. 12, 2017), Report and Recommendation adopted by, 2018 WL 718959 (D.S.C. Feb. 5, 2018), aff'd 744 Fed.Appx. 179 (4th Cir. Dec. 4, 2018). “‘The due process clause does not require later consideration of evidence that could have been but was not presented during a prison disciplinary proceeding.'” Id. (quoting Jones v. McCaughtry, 6 Fed.Appx. 371, 372-73 (7th Cir. 2001)). Rather, “courts look only to whether a prisoner received the procedural protections due under the Constitution.” Id. As the Court has explained, Petitioner was afforded the due process requirements 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.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion to dismiss or, in the alternative, for summary judgment [Doc. 24] be GRANTED and that the Petition [Doc. 1] be DENIED.
IT IS SO RECOMMENDED.