Opinion
2:22-cv-00881-MGL-MGB
06-14-2023
Jose E. Mojica-Robles, Petitioner, v. Warden Janson, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Jose E. Mojica-Robles (“Petitioner”) has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, challenging an administrative disciplinary action he received while incarcerated at the Federal Correctional Institution (“FCI”) Miami.(Dkt. No. 1.) Currently before the Court is Respondent's Motion for Summary Judgment. (Dkt. No. 14.) Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the petition and submit findings and recommendations to the United States District Judge. The undersigned recommends that Respondent's Motion for Summary Judgment be granted.
The record shows Petitioner is now housed at FCI Edgefield.
The background is taken from the documents in the record pertaining to the incident at issue and the resulting disciplinary proceedings.
On May 6, 2020, while incarcerated at FCI Miami, Petitioner allegedly assaulted another inmate. The reporting officer recounted the incident in the incident report as follows:
On May 6th 2020, at approximately 10:35am, while conducting rounds I noticed inmate [redacted], started to talk loudly while he was by cell door D02-022. I instructed him to get away from the door and to go take a shower, check emails or use the telephone. I continued on my rounds and walked towards the end of the corridor to address an inmate's concern in cell number D02-025. I then looked
down and noticed at least 4 inmates, [redacted] Jose Mojica-Robles, reg. no. 41717069, started assaulting inmate [redacted]. I rushed down the stairs while hitting my body alarm. At this moment, inmate [redacted] had a broomstick in his hand and was assaulting the other inmates, but by the time I got down the stairs inmate [redacted] took the broomstick and was using the broomstick to assault inmate [redacted]. All of the inmates on the grill were kicking and/or punching [redacted] and covering him. As I opened the door I ordered them several times to stop fighting. Since they did not comply with my verbal orders to stop, I proceeded to give them one 2 second burst of OC spray. Upon the deployment of the OC, the inmates still did not comply with my orders to stop fighting, so I deployed a second burst of OC. At that time, one of the inmates assaulting inmate [redacted] picked up the domino table that was in the grill, and threw it at his head. I do not know which inmate did that assault. The altercation ended after responding staff arrived.(Dkt. No. 14-1 at 6.) The incident report indicated Petitioner committed the prohibited act of Assaulting with Serious Injury in violation of Code 101. (Id.) The incident report was initially referred to the FBI and the local United States Attorney's Office for possible prosecution. (Id. at 5-6.) Prosecution was declined, and the incident report was released for administrative processing. (Id.)
Petitioner received a copy of the Report on July 29, 2020. (Id. at 6.) A staff member advised Petitioner of his rights on the same day. (Id. at 6-7.) At that time, Petitioner “displayed a fair attitude” and stated, “I do not know what to say now, I hope that the UDC and DHO take into consideration the statements and outcome of the case.” (Id. at 7.) A Unit Discipline Committee (“UDC”) hearing was held on August 6, 2020, at which time Petitioner was afforded an opportunity to make a statement and supply evidence on his behalf. (Id. at 6.) The UDC referred the charge to the Inmate Discipline Hearing Officer (“DHO”) for further consideration. (Id.)
On August 6, 2020, Petitioner received a copy of Notice of Discipline Hearing Before the DHO and Inmate Rights at Discipline Hearing. (Id. at 9, 11.) On the same day, Petitioner indicated he did not wish to have a staff representative or any witnesses. (Id. at 9.) On August 12, 2020, Petitioner received a discipline hearing before the DHO. (Id. at 13.) The DHO Report indicates that during this hearing, Petitioner was afforded the opportunity to make a statement, have a staff representative, provide evidence on his behalf, have witnesses appear, or present written statements of unavailable witnesses. (Id. at 13-15.) Petitioner did not request a staff representative or witnesses and he declined to make a statement. (Id. at 13.) In addition to the incident report and the investigation, the DHO considered photo sheets, a late UDC Approval Memo by the Warden, the S.I.S. Investigation, and Health Services clinical encounters for Petitioner and another inmate. (Id. at 13-14.)
After consideration of all the evidence, the DHO found that Petitioner had committed the prohibited act of Code 101 as charged and stated, inter alia:
The DHO first discussed that this report was suspended pending an FBI referral, which was released back to the institution on May 28, 2020 to be processed administratively. The S.I.S. Department then conducted their investigation and released the incident on July 29, 2020, and you were served. As a result, your UDC was held outside the . . . five day time frame. This was explained to you at your DHO Hearing. This delay did not affect your ability to present a defense. The Warden's memorandum approving this delay is included in the DHO packet.(Id. at 14.) The DHO outlined the sanctions to be imposed and the reasons for the sanctions imposed. (Id. at 14-15.) The DHO imposed the loss of 41 days of good conduct time, 30 days of disciplinary segregation, and the temporary loss of phone and commissary privileges. (Id. at 15.) The DHO gave Petitioner a copy of the DHO Report on August 13, 2020. (Id..)
Petitioner appealed the DHO's decision to the Southeast Regional Office on September 4, 2020. (Id. at 26.) The record indicates the appeal was rejected on November 5, 2020 because “One RSR.” (Id.) According to Respondent, the rejection was “for having more than one letter-size continuation and Petitioner was directed he may resubmit his appeal in proper form within 10 days of the date of the rejection.” (Dkt. No. 14 at 10.) On February 24, 2021, Petitioner filed another appeal to the Southeast Regional Office that was rejected the same day because “ONE RSR OTH.” (Dkt. No. 14-1 at 27.) According to Respondent, the appeal “was rejected . . . for the same reasons as the” first one and “he was directed to the policy and regulations for assistance.” (Dkt. No. 14 at 10.) Plaintiff then filed an appeal to the Central Office on December 13, 2021, which was rejected on January 4, 2022 because “DIR.” (Dkt. No. 14-1 at 27.) According to Respondent, “Petitioner was directed that he must first properly refile at the regional level.” (Dkt. No. 14 at 11.) Petitioner did not appeal further.
On March 17, 2022, Petitioner filed the instant § 2241 petition. (Dkt. No. 1.) On October 20, 2022, Respondent filed a Motion for Summary Judgment. (Dkt. No. 14.) By order of this Court filed on October 21, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the possible consequences if he failed to respond adequately to the motion for summary judgment. (Dkt. No. 15.) On November 18, 2022, Petitioner filed his response in opposition to Respondent's motion. (Dkt. No. 20.) Respondent did not file a reply brief, and the motion is ready for review.
STANDARDS
Federal Rule of Civil Procedure 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). However, “[o]nly 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, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 321 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
DISCUSSION
Respondent argues that the § 2241 Petition should be dismissed because: (1) Petitioner failed to exhaust his administrative remedies before filing the Petition; and (2) Petitioner received due process throughout the disciplinary process. (Dkt. No. 14.) The undersigned considers these arguments, below.
A. Exhaustion of Administrative Remedies
Respondent first argues that Petitioner failed to exhaust his administrative remedies and his Petition should therefore be dismissed. (Dkt. No. 14.) Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts have required 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, 531 (4th Cir. 2010) (noting courts require “exhaustion of alternative remedies before a prisoner can seek federal habeas relief” (internal quotation marks omitted)). A court may excuse an inmate's failure to exhaust upon a showing of cause and prejudice. McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004). Establishing cause for procedural default typically requires a showing that “some objective factor external to the [petitioner] prevented [him] from raising the claim [in administrative proceedings].” Murray v. Carrier, 477 U.S. 478, 492 (1986); United States v. McKinney, 60 F.4th 188, 193 (4th Cir. 2023).
The BOP has an administrative grievance process. See 28 C.F.R. § 542.12 et seq. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request within twenty (20) days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director; appeals to the Regional Director must be submitted within twenty (20) days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel within thirty (30) days of the date the Regional Director signed his response. Id. If, during this process, the inmate does not receive a response in the allotted time frame (including any extensions), the inmate may consider the request denied and appeal to the next level. Id. § 542.18.
In support of his motion, Respondent presents: (1) an affidavit from the legal assistant for the Bureau of Prisons (“BOP”) averring that Petitioner did not exhaust his administrative remedies related to his disciplinary action for the incident at issue; and (2) excerpts from SENTRY, the BOP's record system, reflecting that Petitioner failed to exhaust his administrative remedies. (Dkt. No. 14-1 at 2, 26-27.) More specifically, the SENTRY records show that Petitioner appealed the DHO's decision to the Southeast Regional Office on September 4, 2020. (Id. at 26.) The record indicates the appeal was rejected on November 5, 2020 because “One RSR.” (Id.) According to Respondent, the rejection was “for having more than one letter-size continuation and Petitioner was directed he may resubmit his appeal in proper form within 10 days of the date of the rejection.” (Dkt. No. 14 at 10.) On February 24, 2021, Petitioner filed another appeal to the Southeast Regional Office that was rejected the same day because “ONE RSR OTH.” (Dkt. No. 14-1 at 27.) According to Respondent, the appeal “was rejected . . . for the same reasons as the” first one and “he was directed to the policy and regulations for assistance.” (Dkt. No. 14 at 10.) Plaintiff then filed an appeal to the Central Office on December 13, 2021, which was rejected on January 4, 2022 because “DIR.” (Dkt. No. 14-1 at 27.) According to Respondent, “Petitioner was directed that he must first properly refile at the regional level.” (Dkt. No. 14 at 11.) Petitioner did not appeal further.
In response, Petitioner claims that he “made a good faith effort to exhaust his administrative remedies.” (Dkt. No. 20 at 9.) In support, Petitioner has submitted a sworn affidavitin which he avers,
Plaintiff's affidavit is sworn under penalty of perjury and accordingly is considered as evidence by the undersigned. See Goodman v. Diggs, 986 F.3d 493, 495 (4th Cir. 2021) (“A complaint is ‘verified' if it is ‘signed, sworn, and submitted under penalty of perjury.” (quoting James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020)); 28 U.S.C. 1746 (providing declarations must substantially include the following: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.”).
I prepared a proper appeal of the Incident Report ID No. 1055495-A1, while at FCI Edgefield and properly filed it with the Regional Office by giving it to a Correctional Officer. I was locked in my cell due to security reasons. I took this action on or about January 14, 2022.(Dkt. No. 20-3 at 1.) According to Petitioner, his affidavit testimony establishes a genuine issue of material fact as to whether he abandoned the administrative remedy process. (Dkt. No. 20 at 9.) Respondent has not responded to Petitioner's assertion that he was prevented from properly refiling his appeal at the regional level, after his December 13, 2021 appeal was rejected by the Central Office.
Here, the undersigned recommends that Petitioner's affidavit testimony presents a genuine issue of material fact as to whether Petitioner was prevented from exhausting his administrative remedies. See Hill v. Haynes, 380 Fed.Appx. 268, 273-274 (4th Cir. 2010) (finding genuine issues of material fact where plaintiff provided specific allegations regarding defendants' hindering his ability to exhaust); Gbikpi v. Atkinson, No. 5:14-CT-3182-FL, 2015 WL 6744038, at *2 (E.D. N.C. Nov. 4, 2015) (holding that inmate lacked available administrative remedy for exhaustion purposes where inmate was unable to file a grievance because prison officials refused to provide him with the necessary grievance forms).
Nevertheless, for the reasons that follow, even if the Court excused Petitioner's failure to exhaust his remedies as to the incident at issue, the record reflects that he received due process throughout the disciplinary process.
B. Merits of Petitioner's Claims
Respondent argues that Petitioner received all the due process to which he was entitled. (Dkt. No. 14 at 11-15.) Petitioner responds that “the belated service and the lapse in the disciplinary proceeding violated [his] due process rights.” (Dkt. No. 10 at 10.) In support, Petitioner points to his sworn affidavit, in which he avers, verbatim,
My attempts to call witnesses on my behalf to provide evidence of my innocence by the belated service of the Incident Report and the Lapse in the Disciplinary Proceedings e.g. inmates that witnessed the event were transferred during the time and thus I could not provide names and call them as witnesses.... I was denied my Constitutional Due Process Rights due to the belated service and lapse of the proceedings.(Dkt. No. 20-3 at 1-2.)
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty or property without due process of law.” U.S. Constitutional Amendment XIV § 1. In Wolff v. McDonnell, the Supreme Court held that inmates are entitled to limited due process rights in prison disciplinary proceedings to the extent that a protected liberty interest, such as the good conduct time Petitioner lost in this case, is affected. 418 U.S. 539, 557 (1974). The Supreme Court has outlined the due process protections inmates are entitled to in regards to prison disciplinary proceedings where the inmate's liberty interest is at stake. Due process is satisfied in prison discipline hearings when the inmate receives a finding from an impartial decisionmaker and 24 hours advance written notice of the charges; an opportunity to appear at the hearing; a conditional opportunity to present documentary evidence and testimony from witnesses; and a written statement of the evidence relied on and the reasons for the disciplinary action. Wolff, 418 U.S. at 564-66; Baker v. Lyles, 904 F.2d 925, 929 (4th Cir. 1990). The BOP's rules embodying disciplinary procedures are codified at 28 C.F.R. §§ 541.1 et seq. These rules and regulations were written so as to comply with the constitutional requirements of due process in prison discipline matters.
The record of Petitioner's hearing reflects that the BOP complied with the requirements of Wolff. See Wolff, 418 U.S. at 564-66. Petitioner was given advance written notice of the charges more than 24 hours before the DHO hearing. Petitioner was offered the opportunity to present evidence in the form of documents or witnesses and to have the assistance of a staff representative-Petitioner chose not to exercise those rights at the hearing. The record of the hearing further reflects the decision of the DHO, the evidence relied upon, and the reasons for the decisions and the sanctions imposed. (Dkt. No. 14-1 at 13-15.)
Petitioner's arguments about the delay in service of the Incident Report and the UDC hearing are without merit. The applicable C.F.R. provides that while “[t]he UDC will ordinarily review the incident report within five work days after it is issued, UDC review of the incident report may . . . be suspended if it is being investigated for possible criminal prosecution.” 28 C.F.R. § 541.7(c). The record shows that Petitioner was notified that his UDC hearing was delayed because of the FBI investigation. (Dkt. No. 14-1 at 14.) Accordingly, Respondent did not violate Petitioner's due process rights by delaying Petitioner's disciplinary proceedings. See Clark v. Mosley, No. 6:17-cv-219-RMG-KFM, 2017 WL 4990537, at *7 (D.S.C. Sept. 25, 2017) (rejecting argument that delay of 22 days in receiving incident report “due to the SIS Department's investigation” did not violate due process; “the Supreme Court in Wolff did not set any specific time limit for the delivery of an incident report”), adopted by, 2017 WL 5027347 (D.S.C. Oct. 30, 2017); Irvin v. Fed. Bureau of Prisons, No. 9:08-cv-03038-HFF-BM, 2009 WL 1811245, at *5 (D.S.C. June 24, 2009) (finding no due process violation where petitioner did not receive the incident report and a UDC hearing until over a year after the incident due to a FBI investigation); Donaldson v. Samuels, 2007 WL 3493654, at *5 (M.D. Pa. Nov. 13, 2007) (“The Court finds that the delay in Petitioner's initial hearing does not automatically equate to a violation of his Due Process rights.”).
Further, while Petitioner argues that the delay prevented him from “soliciting witnesses on his behalf,” he does not specify how these “witnesses” would have helped his defense. He offers no explanation of what testimony he expected these witnesses to provide. Accordingly, Petitioner has not shown how the delay in receiving his incident report and the UDC hearing prejudiced him. See Wolff, 418 U.S. at 566 (DHO is not required to call every witness a prisoner requests if the testimony would be irrelevant, cumulative or otherwise unnecessary).
To the extent that Petitioner argues there was insufficient evidence to sustain the guilty finding, that claim is also without merit. In Superintendent, Massachusetts Correctional Institution v. Hill, the Supreme Court set out the constitutional evidentiary standard to be used when courts review prison discipline decisions. 472 U.S. 445 (1985). The Hill court held that due process is satisfied if there is “some” evidence to show that the inmate committed the offense. Id. at 455. “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 board's decision.” Taylor v. Bauknecht, No. 6:06-2268-DCN, 2007 WL 2021880 at *4 (D.S.C. July 6, 2007) (quoting Hill, 472 U.S. at 455-56). As discussed above, the evidence presented to the DHO consisted of, inter alia, medical assessments and an incident report in which the reporting officer stated that he observed Petitioner assault another inmate. (Dkt. No. 14-1 at 14.) Although Petitioner denied the charges, there was “some evidence” to support the finding of the DHO.
CONCLUSION
Accordingly, the undersigned Magistrate Judge RECOMMENDS that the Motion for Summary Judgment (Dkt. No. 14) be GRANTED.
IT IS SO RECOMMENDED.
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).