Opinion
Civil Action 6:22-4527-TMC-KFM
05-16-2023
Christopher Terell Purnell, Petitioner, v. Warden, Bennettsville Federal Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This matter is before the court on the respondent's motion for summary judgment (doc. 10). 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.
I. FACTS PRESENTED
The petitioner is currently incarcerated by the Bureau of Prisons (“BOP”) at Federal Correctional Institution (“FCI”) Bennettsville, South Carolina (doc. 1 at 1). On February 25, 2022, the petitioner received an incident report at FCI Bennettsville for violating Prohibited Act Code 104, Possessing a Weapon, and Prohibited Act Code 208, Interfering with Security Devices (doc. 10-2 at 3). The reporting officer stated as follows in the incident report:
On 2/25/2022 At approximately 1830 I officer F. Nobel was conducting a cell search in the A2 Housing Unit Cell 232 which houses Purnell, Christopher #34485057. During the course of my search I discovered that the screws on the inmate duress alarm were loose. Upon removing them I discovered that there was a 2½ inch piece of sharpened metal inside and that the
inmate duress button was not connected to the wires. Contraband was confiscated and Operations was notified.(Id.). The lieutenant tasked with conducting an investigation into the incident advised the petitioner of his rights on the same day (id. at 5). At that time, the petitioner “displayed a fair attitude” and stated, “It's not mine. All I do is go to work in the OM. Why would I have a shank? I don't do anything” (id.). The lieutenant concluded that because the petitioner was the only inmate assigned to the cell, the charge was appropriate (id.).
A Unit Discipline Committee (“UDC”) hearing was held on March 2, 2022 (doc. 10-2 at 4). During the hearing, the petitioner stated, “It[']s not mine, the metal piece is only 2 inches” (id.). The UDC found the petitioner guilty of Prohibited Act Codes 104 and 208 and referred the charges to the Disciplinary Hearing Officer (“DHO”) for a hearing (id.). The UDC recommended that the petitioner be sanctioned with the loss of 41 days of good conduct time (“GCT”), six months of loss of phone, and six months of loss of commissary, if the DHO found the petitioner committed the prohibited acts (id.).
On March 2, 2022, the petitioner was given a notice of discipline hearing before the DHO (doc. 10-2 at 8). The petitioner indicated that he did not wish to have a staff representative or witnesses (id.). The petitioner was also provided a form advising him of his rights at the DHO hearing (id. at 9).
On March 9, 2022, a DHO hearing was held on the charges of Prohibited Act Code 104, Possessing a Weapon, and Prohibited Act Code 208, Interfering with Security Devices (doc. 10-2 at 10). The DHO reviewed the petitioner's rights with him, and the petitioner confirmed that he understood his rights (id. at 11). The petitioner stated that he had no documentary evidence to present (id.). Moreover, the petitioner waived his right to have a staff representative and his right to call witnesses (id.). The petitioner was given an opportunity to make a statement at the DHO hearing, and he stated, “I have no use for possession of a weapon, it wasn't mine” (id. at 10). The DHO found that the greater weight of the evidence showed that the petitioner committed the Prohibited Act Code 104, Possessing a Weapon (id. at 11). The DHO set out the specific evidence relied upon, including the photographs of the weapon, the reporting officer's written statement in the incident report, and the statements that the petitioner made during the UDC hearing (id. at 11-12). Further, the DHO explained as follows:
You were found to be in possession of a homemade weapon fashioned from a piece of metal sharpened to a point at one end located within your cell. There are photographs of the weapon. You stated that the weapon was not yours. However, in a statement you provided to the UDC, you argued that the weapon was only 2" in length rather than the 2.5" specified in the incident report. You would not have said that unless you were familiar with the weapon. Because of this, the DHO found that you were culpable for possessing the weapon. You are ultimately responsible for maintaining a contraband free area of your domain. Other than denying the charge, you did not provide the DHO with any substantive evidence to support that you were not in possession of a weapon. Possessing a weapon is prohibited and will not be tolerated.(Id. at 12). The DHO sanctioned the petitioner to loss of 41 days of GCT, 30 days of disciplinary segregation, and loss of six months of commissary and email privileges (id.). The DHO iterated the reason for the sanctions as follows:
The action/behavior on the part of any inmate to possess a weapon can lead to serious injury to both parties, as well as staff. Having an item such as this has the potential to escalate a situation into a major confrontation between inmates and staff, thereby threatening the security and orderly running of the institution and makes it difficult to provide security for all concerned. The sanctions imposed by the DHO were taken to express that you will be held responsible for your actions/behavior at all times.
Placing you in disciplinary segregation was imposed as punishment. The disallowance of good conduct time was imposed because you were sentenced under the Prison Litigation Reform Act (PLRA) which mandates the disallowance of good conduct time per policy. The loss of commissary and email sanctions were imposed to deter misconduct.(Id.). The petitioner received a copy of the DHO report on March 11,2022 (id. at 13). The petitioner's current projected release date, with consideration of GCT, is November 26, 2027 (doc. 10-2, Carter decl. ¶ 3).
II. FEDERAL PETITION
On December 15, 2022, the petitioner filed the instant § 2241 petition, alleging violation of his due process rights and challenging the sufficiency of the evidence presented (doc. 1 at 5-7). Specifically, the petitioner asserts that a unique tool is needed to gain access to the duress panels, and the reporting officer did not find one or state in the incident report that the duress panel was bent out of its original form (id. at 5). The petitioner further asserts that the weapon was not presented during the DHO hearing (id. at 7). The petitioner seeks to have his disciplinary record expunged and his GCT restored (id. at 15).
On February 7, 2023, the respondent filed a motion for summary judgment (doc. 10). 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 for summary judgment procedures and the possible consequences if he failed to respond adequately (doc. 11). The petitioner filed a response on February 27, 2023 (doc. 13). This matter is now ripe for review.
III. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
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).
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.
B. Administrative Exhaustion
The respondent argues that the petitioner failed to exhaust his administrative remedies (doc. 10-1 at 8-9). Although § 2241 does not contain a statutory exhaustion requirement, the Court of Appeals for the Fourth Circuit follows the well-established rule that a federal prisoner bringing a claim under § 2241 must first exhaust administrative remedies before seeking review in federal court. See McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (per curiam) (citation omitted); Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (noting that courts require “exhaustion of alternative remedies before a prisoner can seek federal habeas relief.”) (internal quotation marks omitted). “In practical terms, the law of habeas, like administrative law, requires proper exhaustion [of remedies].” Woodford v. Ngo, 548 U.S. 81, 92 (2006).
The BOP has an administrative grievance process that provides inmates with opportunities for informal and formal review of complaints related to their imprisonment. See 28 C.F.R. § 542.10, et seq. Initially, an inmate may appeal DHO findings to the Regional Director within 20 days of the inmate's receipt of the DHO report. Id. § 542.14(d)(2). If dissatisfied with the Regional Director's response, the inmate may then appeal to the General Counsel on a Central Office Appeals form and “accompanied by one complete copy or duplicate original of the institution and regional filings and their responses,” within 30 calendar days of the date the Regional Director signed the response. Id. § 542.15(a), (b)(1). “Appeal to the General Counsel is the final administrative appeal.” Id. § 542.15(a). If during this process the inmate does not receive a response from the Regional Director or General Counsel within the allotted time frames including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. Id. § 542.18.
Here, BOP records reflect that the petitioner filed an appeal of the DHO's decision to the Regional Director on April 11,2022 (doc. 10-2, Carter decl. ¶ 5 & attach. E). His appeal was rejected on April 14, 2022, for failure to include a copy of the DHO report (id.). The petitioner was advised that he could resubmit his appeal in proper form within ten days of the date of the rejection (id.). The petitioner submitted a new request to the Regional Office on May 9, 2022 (id. ¶ 6 & attach. E). The Regional Office denied the appeal on June 2, 2022 (id.). The petitioner then submitted an appeal to the Central Office on June 29, 2022 (id. ¶ 7 & attach. E). The Central Office rejected this appeal on July 12, 2022, for failure to include the Regional Office's response (id.). The petitioner was advised that he could resubmit his appeal in proper form within ten days of the date of the rejection (Id.). The petitioner did not file any other administrative remedies on this DHO action (id. ¶ 8).
The petitioner contends that this evidence reflects that he exhausted his administrative remedies (doc. 13 at 1-2). However, while the petitioner attempted to exhaust by filing appeals, he never corrected the technical shortcomings in his appeal. Accordingly, the petitioner has failed to exhaust his administrative remedies. See Woodford, 548 U.S. at 92 (“To ... ‘protect the integrity' of the federal exhaustion rule, we ask not only whether a prisoner has exhausted his . . . remedies, but also whether he has properly exhausted those remedies ....”); e.g., Hasan v. Phelps, C/A No. 9:20-cv-04271-JD-MHC, 2021 WL 3639997, at *4 (D.S.C. July 23, 2021) (finding that a petitioner failed to exhaust his administrative remedies prior to bringing his § 2241 petition when his appeal to the Central Office was untimely and did not contain the requisite documentation), R&R adopted by 2021 WL 3639492 (D.S.C. Aug. 17, 2021); Hammoud v. Mosley, C. A. No. 5:17-cv-2419-RMG, 2018 WL 3617965, at *1, *3 (D.S.C. July 30, 2018) (finding that a petitioner did not properly exhaust his administrative remedies because his appeals had technical errors and were not in proper form); Reid v. Mansukhani, C/A No. 5:16-cv-3280-RMG, 2017 WL 2378850, at *2 (D.S.C. June 1, 2017) (holding that a petitioner had not properly exhausted his administrative remedies because he failed to sign the appeal or utilize required parts of the form). Further, the petitioner has not argued or shown that there was any cause or prejudice to excuse his default. See McClung, 90 Fed.Appx. at 445 (“Failure to exhaust may only be excused upon a showing of cause and prejudice.”) (citation omitted). Accordingly, the undersigned recommends that the district court grant the respondent's motion for summary judgment based on the petitioner's failure to exhaust his administrative remedies. Moreover, for the reasons discussed below, even if the petitioner had exhausted his administrative remedies, he has not shown that he was denied due process, and, therefore, summary judgment is nonetheless appropriate.
C. Due Process
As set out above, the DHO imposed sanctions on the petitioner that included loss of GCT. 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, a disciplinary decision implicating a prisoner's liberty interest must be supported by at least “some evidence.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454-55 (1985).
A review of the disciplinary record reveals that the petitioner received all of the due process safeguards afforded to him by Wolff. As set out above, the petitioner received written notice of the charges at least 24 hours in advance of the DHO hearing. Specifically, the petitioner received a copy of the incident report on February 25, 2022, and the DHO hearing was held on March 9, 2022. Moreover, the petitioner received the notice of discipline hearing form on March 2, 2022. 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. The petitioner waived his right to a staff representative and his right to call witnesses, but he made a statement on his own behalf at the DHO hearing. Further, 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. Additionally, the petitioner received a copy of the DHO report on March 11, 2022.
The petitioner takes issue with the sufficiency of the evidence presented at the DHO hearing, including that photographs of the weapon were presented instead of the weapon itself and the absence of evidence regarding the tool required to open the duress panel or the duress panel being bent out of its original form (doc. 1 at 5-7). Further, the petitioner argues that the “DHO never met its required burden of proof that [he] had knowledge of the piece of metal being inside the secured area behind the [duress panel]” (doc. 13 at 2).
As set out above, to comport with the requirements of due process in revoking GCT, the findings of a prison disciplinary board must be supported by some evidence in the record. Hill, 472 U.S. at 454. The Supreme Court of the United States has explained that “[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 that “[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, as set out above, an officer found a piece of sharpened metal concealed inside the petitioner's cell, which was occupied only by him, and corresponding photographs were presented at the hearing. Moreover, as noted by the DHO, the petitioner was ultimately responsible for maintaining a contraband-free area in his domain. The petitioner could have argued at the DHO hearing that the weapon should be presented, as opposed to photographs, and that there was no evidence of a tool required to open the duress panel or the duress panel being bent out of its original form, but he failed to do so. Moreover, the petitioner does not explain how presentation of the weapon, as opposed to photographs, would have aided his defense. The record makes clear that the DHO considered the petitioner's claim that the weapon was not his. While all of the evidence that the petitioner desired was not presented, the undersigned finds that there was “some evidence in the record” to support the DHO's finding. See Wolff, 418 U.S. at 556 (“Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.”); e.g., McClung v. Hollingsworth, C/A No. 06-6699, 2007 WL 1225946, at *3 (4th Cir. Apr. 26, 2007) (finding that the constructive possession rule provides the necessary “some evidence” sufficient to sustain a disciplinary determination where a dangerous weapon was discovered in a cell that was the “exclusive domain” of the petitioner and his cellmate); Reynolds v. Williamson, 197 Fed.Appx. 196, 199200 (3rd Cir. 2006) (finding that despite a petitioner's claim that he did not possess the tools necessary to retrieve the weapon recovered from the plumbing in his cell, “some evidence” supported DHO's conclusion that the petitioner was in constructive possession of the weapon where the petitioner and his cellmate were the only persons with access to the cell and the cellmate did not claim ownership of weapon); Rojas-Parra v. Warden, FCI Bennettsville, C/A No. 1:13-1581-TMC, 2014 WL 2548352, at *2 (D.S.C. June 6, 2014) (determining that “some evidence” supported a constructive possession finding where the record contained evidence that a prison guard discovered a cellphone and kitchen food in the petitioner's cell, which the petitioner shared with only one other inmate); Edmonds v. Ziegler, C/A No. 5:10-cv-01374, 2014 WL 321050, at *5 (S.D. W.Va. Jan. 29, 2014) (holding that there was some evidence to support the DHO's finding that the petitioner possessed a weapon under the sink in his cell despite the petitioner's argument that a special tool was required to access that area in the sink). Accordingly, the undersigned recommends that the district court find that the petitioner received the due process safeguards outlined in Wolff and grant the respondent's motion for summary judgment.
IV. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the district court grant the respondent's motion for summary judgment (doc. 10).
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
250 East North Street, Suite 2300
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).