Opinion
C. A. 1:22-2202-DCC-SVH
12-20-2022
Toby E. Moore, #350242, Petitioner, v. Bryan P. Stirling, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Toby E. Moore (“Petitioner”) is an inmate at the MacDougall Correctional Institution of the South Carolina Department of Corrections (“SCDC”) who filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [ECF Nos. 1, 11]. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. [ECF No. 15]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 16]. Petitioner filed a timely response on October 31, 2022. [ECF No. 21]. The undersigned issued a report and recommendation (“report”) on November 9, 2022, recommending the court grant Respondent's motion for summary judgment and dismiss the petition. [ECF No. 22]. On December 15, 2022, the Honorable Donald C. Coggins, United States District Judge (“Judge Coggins”), issued an order finding the report moot and referring the case to the undersigned to consider whether it was necessary to provide Petitioner an opportunity to respond the recategorization of the action in accordance with Castro v. United States, 540 U.S. 375, 383 (2003) and Thurston v. Maryland, 611 Fed.Appx. 112 (4th Cir. 2015), and whether the action was subject to dismissal as a second and successive § 2254 petition. [ECF No. 26].
Having carefully considered the parties' submissions, the record in this case, and the particular issues identified by Judge Coggins, the undersigned recommends the court grant Respondent's motion for summary judgment and dismiss the petition without prejudice.
I. Factual and Procedural Background
On March 23, 2012, Petitioner was sentenced in the Spartanburg County Court of General Sessions in case numbers 2011-GS-42-2965-69(A) and 2012-GS-42-0064-66. [ECF No. 1 at 1]. He is currently projected to max out his sentence in 2036. [ECF No. 15-1 at 1].
Petitioner filed the instant petition alleging SCDC reduced his good time credit based on a disciplinary conviction for use of drugs without affording him equal protection and due process of law under the Fifth and Fourteenth Amendments. [ECF Nos. 1 at 2 and 1-1 at 4]. He states that on August 26, 2021, while he was incarcerated at Allendale Correctional Institution, he provided a urine sample for a drug screen pursuant to his participation in the Peer Support Program through the Department of Alcohol and Other Drug Abuse Substances. [ECF Nos. 1-1 at 1, 1-1 at 5, and 21 at 1]. He indicates that some time later, Sergeant Kevin Washington (“Sgt. Washington”) notified him that he had tested positive for amphetamines, and he was subsequently charged with a disciplinary violation for use and possession of drugs. Id. He maintains he was convicted of the charge during a hearing on September 16, 2021, without the benefit of drug test results from an outside lab, despite SCDC policy that required outside lab testing under circumstances such as his, his requests that additional testing be conducted, and Sgt. Washington's assurance that his sample would be sent to an outside lab. [ECF Nos. 1 at 2, 1-1 at 2-3, 4-5, and 21 at 1]. He claims that prior to the positive drug screen, he had been incarcerated since January 6, 2011, and never previously failed a drug test. [ECF No. 1-1 at 5]. He asserts his due process rights were further violated through the admission of an out-of-court statement from a nurse as to whether antihistamines might cause a false positive result for amphetamines, as he was deprived of the opportunity to cross-examine the nurse or present outside evidence refuting her statement. [ECF Nos. 1 at 2 and 1-1 at 5-6].
Petitioner requests the court order SCDC to remove the disciplinary conviction from his record, as he alleges it resulted in the loss of 140 days of good time/earned work credits. [ECF Nos. 1 at 7 at 1-1 at 3].
A. Standard for Summary Judgment
Summary judgment is appropriate “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). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. 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.” Id. at 248. The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56.
B. Analysis
1. Petitioner Not Entitled to Habeas Relief
Petitioner brought this action using the standard “Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241” form. [ECF No. 1]. Because Petitioner is a state prisoner, relief pursuant to § 2241 is unavailable to him. See Hewlett v. Goode, C/A No. 7:20-494, 2020 WL 6136849, at *2 (W.D. Va. Oct. 19, 2020) (citing In re Wright, 826 F.3d 774, 779 n.5 (4th Cir. 2016)). The Fourth Circuit has explained that § 2241 and § 2254 both extend to persons in custody “in violation of the Constitution or laws or treaties of the United States,” but that rules of statutory interpretation favor the general over the specific and § 2254 specifically pertains to “person[s] in custody pursuant to the judgment of a State court.” Wright, 826 F.3d at 779-80; see generally Tyler v. Hooks, 945 F.3d 159, 162 (4th Cir. 2019) (noting state prisoner brought habeas petition pursuant to § 2254 alleging due process violations stemming from a prison disciplinary proceeding).
A state prisoner may bring an action in habeas corpus to challenge a prison disciplinary proceeding pursuant to 28 U.S.C. § 2254, subject to certain conditions. See generally Tyler, 945 F.3d 159. However, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “contains ‘gatekeeping' provisions that establish . . . procedural and substantive standards governing ‘second or successive' habeas petitions.” In re Minarik, 166 F.3d 591, 595 (3d Cir. 1999); 28 U.S.C. § 2244. “Procedurally, the AEDPA amendments require petitioners to file a motion in the appropriate Court of Appeals requesting an order authorizing the District Court to consider their ‘second or successive' application.” Id.; 28 U.S.C. § 2244(b)(3)(A).
In Daniels v. Cohen, C/A No. 16-753-PMD-PJG (D.S.C. Sept. 28, 2016), 2016 WL 5402858, at *2, this court, interpreting Wright, addressed the issue of when a state prisoner's challenge to the execution of his sentence is successive under 28 U.S.C. § 2244(b), explaining:
After confirming that § 2244(b)'s restrictions on second or successive petitions apply to petitions challenging the execution of state sentences, [Wright, 826 F.3d at] 779, the Fourth Circuit indicated that courts should use the abuse-of-the-writ doctrine to determine whether such a petition is second or successive, id. at 783, 7874. Under the doctrine, “new claims raised in subsequent habeas petitions [are] ‘abusive'”-and thus, barred-“if those claims were available to the petitioner at the time of a prior petition's filing.” Id. at 784.“District courts lack jurisdiction to entertain unauthorized successive habeas petitions.” Id. (citing United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003)).
This is not Petitioner's first habeas petition, as he previously unsuccessfully challenged his state criminal conviction pursuant to § 2254. See Moore v. Williams, C/A No. 1:19-1648-JMC.However, this petition is not considered second or successive to that petition because Petitioner filed the first habeas petition in June 2019, Moore v. Williams, C/A No. 1:19-1648-JMC, ECF No. 1, and the action giving rise to this habeas petition occurred in September 2021. ECF No. 1-1 at 1. Thus, the claims Petitioner brings in this action were not available to him when he filed the first § 2254 petition.
The court takes judicial notice of filings in the § 2254 action. See Colonial Penn. Ins. Co. v. Coil, 887 F.2d 1236, 1249 (4th Cir. 1989) (“The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.” (citation omitted).
Although this petition is not considered second or successive to the prior § 2254 petition such that it would be subject to the gatekeeping provisions under the AEDPA, it does not appear to be properly brought in a habeas corpus proceeding. Petitioner alleges he lost 140 days of good time/earned work credit, ECF No. 1-1 at 3, but the evidence shows Petitioner did not lose any good time credit on account of the disciplinary conviction. See generally ECF Nos. 15-1, 15-2, 15-4, 15-6. A prisoner is not entitled to habeas corpus relief if the court's grant of relief on his claims would not result in his release or a reduction in the duration of his sentence. See Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (holding that where success on a claim “would not necessarily spell immediate or speedier release for the prisoner,” habeas corpus is not the appropriate remedy).
The Disciplinary Report and Hearing Record reflects that Petitioner's sanctions included loss of property requiring his television be mailed out and loss of canteen, visits, and phone privileges for 140 days. [ECF No. 15-2]. Although the record contains a space for “Loss of Good Time (Days),” there is nothing indicated in the blank beside that entry. See id. The response to the step 2 grievance also indicates “the sanctions imposed, which included the loss of -00- days accrued good time, were appropriate for the rules violation.” [ECF No. 15-4]. The Order of Dismissal from the ALC reflects: “As a result of the conviction, Appellant lost zero days of accrued good time credits.” [ECF No. 15-6].
Despite Petitioner's assertion to the contrary, it does not appear he lost good time credit as a result of the disciplinary conviction. Even if the court were to find that Petitioner's constitutional rights were violated in the disciplinary proceedings, a decision in his favor would not result in his release or reduce the duration of his sentence. Therefore, the undersigned recommends the court find Petitioner's allegations are not cognizable in a habeas corpus proceeding.
Pursuant to the court's December 15, 2022 order, ECF No. 26, the undersigned has considered whether it is necessary to provide Petitioner with an opportunity to respond to the recategorization of this action. Because Petitioner is a state prisoner, it would be more appropriate for the court to construe the case as one brought pursuant to § 2254 than § 2241 if it were properly brought as a habeas action. The undersigned recognizes courts are limited in their abilities to reconstrue first § 2254 motions. See Castro v. United States, 540 U.S. 375, 383 (2003) (explaining that prior to “recharacteriz[ing] a pro se litigant's motion as a first § 2255 motion, the district court must notify the pro se litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on ‘second or successive' motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.”); see also Thurston v. Maryland, 611 Fed.Appx. 112 (4th Cir. 2015) (providing “[a] district court must first give a prisoner notice and opportunity to respond before construing a mislabeled postconviction motion as an initial § 2254 petition”). However, this is not Petitioner's initial habeas petition, but his first habeas petition as to the disciplinary matter. It is not clear whether the warning in Castro must be provided under these circumstances, if the court were to reconstrue the case as one brought pursuant to § 2254. Nevertheless, because Petitioner's request for relief is not cognizable under § 2241 or § 2254, it is unnecessary to provide the notice referenced in Castro. See Bagley v. Dunlap, No. 5:17-CV-00671-TLW, 2017 WL 5000719, at *1 (D.S.C. Nov. 1, 2017) (stating dismissal of the petition without prejudice is proper “because the grounds asserted and relief requested by Petitioner are not cognizable in a habeas proceeding under § 2241 or § 2254”).
2. Reconstruing Case As Brought Under 42 U.S.C. § 1983
Because Petitioner argues his constitutional rights were violated, ECF No. 1-1 at 4, the petition could be liberally construed as brought pursuant to 42 U.S.C. § 1983. See Wilkinson v. Dotson, 544 U.S. 74, 78-83 (2005) (holding that in challenges to prison procedures “where success in the action would not necessarily spell immediate or speedier release for the prisoner,” § 1983, not habeas corpus, is the appropriate remedy”).However, the undersigned recommends the court decline to recharacterize the case as one brought pursuant to § 1983. To state a plausible claim for relief under § 1983, an aggrieved party must sufficiently allege he was injured by “the deprivation of any [of his] rights, privileges, or immunities secured by the [United States] Constitution and laws” by a “person” acting “under color of state law.” See 42 U.S.C. § 1983; see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014). Petitioner has not alleged Respondent personally violated any of his rights under the Constitution or federal law by failing to conduct outside testing of his urine sample. Furthermore, reclassifying a habeas case as a § 1983 case is disfavored “in large part because of the different filing fees ($5.00 for § 2254 versus $350 for § 1983) and the collateral consequences associated with filing multiple, frivolous civil rights law suits.” Hewlett, 2020 WL 6136849, at *3 (citing 28 U.S.C. §§ 1914, 1915(b)(1), 1915(g)). Therefore, the undersigned recommends the court decline to recharacterize the petition as a complaint brought pursuant to 42 U.S.C. § 1983.
The court did not reconstrue the action as brought pursuant to § 1983 upon initial review because Petitioner alleged he had lost 140 days of good time credit, see ECF No. 1-1 at 3, and did not yet have the benefit of the record subsequently provided by Respondent demonstrating the inaccuracy of Petitioner's representation.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's motion for summary judgment [ECF No. 15] and dismiss the petition without prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 901 Richland Street Columbia, South Carolina 29201
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).