Opinion
Case No. 8:17-cv-3417-BHH-JDA
07-13-2018
James L. Roudabush, Jr., Petitioner, v. G. Mosley, Warden of FCI Edgefield, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Respondent's motion to dismiss or, in the alternative, for summary judgment [Doc. 15] and Petitioner's motion for injunction [Doc. 26]. Petitioner is a prisoner in the custody of the Federal Bureau of Prisons ("BOP"), proceeding pro se, who seeks relief under 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 magistrate judge is authorized to review the instant habeas Petition and to submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on December 13, 2017. [Doc. 1.] On February 26, 2018, Respondent moved to dismiss the Petition or, alternatively, for summary judgment. [Doc. 15.] On April 9, 2018, Petitioner filed a response in opposition to the motion to dismiss or for summary judgment [Doc. 27], and, on April 26, 2018, Petitioner filed a supplement to his response [Doc. 34].
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 December 13, 2017. [See Doc. 1-1 at 2 (envelope stamped as received by prison mailroom on December 13, 2017).]
On April 9, 2018, Petitioner filed a motion for injunction. [Doc. 26.] On April 23, 2018, Respondent filed a response in opposition to the motion for injunction. [Doc. 31]. Petitioner then filed a reply on May 4, 2018 [Doc. 40], and, on June 8, 2018, Petitioner filed a "notice" and affidavit in further support of his reply and motion [Docs. 42; 42-1]. Accordingly, the motions are ripe for review.
Petitioner filed numerous other letters and documents with the Court. [See, e.g., Docs. 13; 21; 33; 41; 43.] The Court has carefully considered each of Petitioner's submissions and has made a thorough review of the entire record before the Court in its evaluation of the Petition and the pending motions.
Having carefully considered the parties' submissions and the entire record in this case, including the submissions outside of the pleadings, the Court recommends that Respondent's motion for summary judgment be granted, that the Petition be denied, and that Petitioner's motion for injunction be denied.
BACKGROUND
On October 11, 2013, Petitioner was sentenced by the United States District Court for the Eastern District of Virginia at case number 1:13-cr-00195-CMH. [Doc. 1 at 1.] At the time Petitioner filed his Petition, he was incarcerated at the Williamsburg Correctional Institution ("FCI Williamsburg") in Salters, South Carolina; he was later transferred and is presently incarcerated at the Edgefield Correctional Institution ("FCI Edgefield") in Edgefield, South Carolina. [Doc. 20.] The underlying events giving rise to Petitioner's claims occurred at the Butner Low Federal Correctional Institution ("FCI Butner") in Butner, North Carolina. [Doc. 1 at 1.]
Petitioner is serving a 77-month term of imprisonment, followed by 3 years supervised release, for forgery of passport, use of a false passport, and wire fraud. [Doc. 15-2 at 2.] His projected release date is December 23, 2018. [Id. at 3.]
Specifically, Petitioner challenges the loss of Good Conduct Time ("GCT") resulting from disciplinary proceedings that occurred at FCI Butner under Incident Report No. 2816989, in which Petitioner was sanctioned with the disallowance of 41 days GCT and the loss of three months of telephone privileges. [Id.] Petitioner alleges that he was charged with a Code 297 violation for using a telephone for abuses other than illegal activity, and a Code 328 violation for giving money to another inmate. [Id. at 2.] Petitioner contends that he did not commit the code violations as charged. [Id. at 5.] A disciplinary hearing was held before a disciplinary hearing officer ("DHO") on March 22, 2016, related to the two charges. [Id. at 4.] The DHO determined Petitioner had committed the acts as charged and sanctioned Petitioner, disallowing 27 days of GCT for the 297 Code violation and 14 days of GCT for the 328 Code violation, for a total disallowance of 41 days of GCT. [Id. at 2.] Petitioner contends that the sanctions are improper because he did not violate any BOP policy, but simply used another inmate's phone to make a telephone call to his sister, which he claims is not prohibited conduct, and because the disciplinary proceedings did not comply with BOP policy or with constitutional due process. [Id. at 3-6.]
Petitioner filed an appeal of the DHO findings to the BOP's Mid-Atlantic Regional Office. [Id. at 8.] Petitioner alleges that his appeal was rejected because it was filed at the "wrong level-institution," because it exceeded the one-page limit, and because it was untimely. [Id.] Petitioner then appealed to the Central Office, which also rejected his administrative remedy appeal. [Id. at 8-9.] Petitioner asserts that the BOP Administrative Remedy Process is "unusable" because it is a "cumbersome policy, it is hard to use, follow, understand or comply with the procedures, forms are hard to obtain, answers are late, issues are not addressed." [Id. at 9.]
Petitioner then filed the instant Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Doc. 1.] Petitioner raises six grounds in his Petition: (1) the Unit Discipline Hearing Committee ("UDC") was not held within five working days after service of the Incident Report on Petitioner [id. at 4]; (2) Code 328 does not prohibit the conduct for which Petitioner was sanctioned [id. at 5]; (3) Petitioner did not commit a Code 297 violation [id.]; (4) Petitioner's GCT was incorrectly calculated pursuant to BOP policy [id. at 5-6]; (5) Petitioner did not receive the DHO Report, which he needed to file an appeal, within the required five business days after the hearing [id. at 6]; and (6) the disciplinary write-up was retaliatory [id.]. For his relief, Petitioner requests that the disciplinary report and charges be expunged from his BOP record and that his disallowed GCT be recalculated. [Id. at 10.]
In addition to the disallowance of GCT, the DHO also sanctioned Petitioner with the loss of telephone privileges for three months. Petitioner does not appear to challenge this sanction, and he may not do so in this habeas Petition. The case law is clear that "temporary loss of phone privileges is not such an 'atypical and significant hardship'" as to constitute a liberty interest afforded protection by constitutional due process. Borda v. Losiewicz, No. DKC-15-cv-2057, 2016 WL 1089626, at *6 (D. Md. Mar. 21, 2016) (citing Freitas v. Ault, 109 F.3d 1335, 1337-38 (8th Cir. 1997) (explaining loss of work and phone privileges did not constitute atypical and significant hardship); Richardson v. Johnson, No. 3:01-cv-545-D, 2001 WL 360843, *1 n.1 (N.D. Tex. April 5, 2001) (explaining phone privilege restrictions, like commissary and recreation restrictions, do not impose a significant or atypical hardship on the inmate in relation to the ordinary incidents of prison life); James v. Odom, No. 00-cv-0063-RVS, 2000 WL 1136563, at *5 (S.D. Ala. May 30, 2000) (explaining a 45 day restriction on inmate's "store, phone, and visiting privileges" did not constituted an atypical or significant hardship)).
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 Petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). The Court may not construct Petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should the Court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Motion to Dismiss Standard
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). However, the Court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, the Court may only rely on the allegations in the petition and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cnty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the [respondent] fair notice of what the . . . claim is and the grounds upon which it rests." While a [petition] attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a [petitioner's] obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the [petition] are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
"A claim has facial plausibility when the [petitioner] pleads factual content that allows the court to draw the reasonable inference that the [respondent] is liable for the misconduct alleged." Ashcroft v. I qbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a [respondent] has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the [respondent's] liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (Where a petition pleads facts that are merely consistent with a respondent's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a petitioner to articulate facts that, when accepted as true, demonstrate that the petitioner has stated a claim that makes it plausible the petitioner is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
If, on a motion pursuant to Rule 12(b)(6), matters outside the pleading are presented to and not excluded by the court, the motion should be treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(d).
Motion for Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure 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
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.(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.
Because Respondent has presented to the Court matters outside the pleadings, which the Court did not exclude, Respondent's motion shall be treated as one for summary judgment.
Habeas Corpus
Generally
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) (citing Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997)); 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."). A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434-35 (2004), and "in the district of confinement rather than in the sentencing court," Miller, 871 F.2d at 490. Here, an analysis under § 2241 is the appropriate mechanism by which to review the instant Petition.
Exhaustion
The execution of sentences and the computation of jail time are administrative functions under the authority of the Attorney General, who has delegated these tasks to the BOP, including the responsibility for computing time credits and determining a sentence termination date once a defendant actually commences serving his sentence. United States v. Wilson, 503 U.S. 329, 334-35 (1992) (clarifying that 18 U.S.C. § 3585(b) does not authorize a district court to award credit at sentencing, and the Attorney General must continue to compute credits as he did under the predecessor statute to § 3585). Accordingly, the Attorney General, through the BOP, must make the initial determination to award sentence credit for time spent in official detention; a district court does not have the jurisdiction to make an initial determination. United States v. Jeter, 161 F.3d 4, 1998 WL 482781, at *1 (4th Cir. 1998) (unpublished table decision). As a result, prior to filing a § 2241 habeas petition, a petitioner must exhaust his administrative remedies. McClung v. Shearin, 90 F. App'x 444, 445 (4th Cir. 2004) (unpublished opinion) (citing Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001); Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir. 1981)). The exhaustion of administrative remedies is not waivable. Jeter, 161 F.3d 4, 1998 WL 482781, at *2. Further, a petitioner's failure to exhaust administrative remedies is excused only upon a showing of cause and prejudice. McClung, 90 F. App'x at 445 (citing Carmona, 243 F.3d at 634-35).
The BOP's Administrative Remedy Program ("BOP Program") is found at 28 C.F.R. §§ 542.10 through 542.19. 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 complaint with the institution's warden; complaints must be filed within twenty 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 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; appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id.
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 (4th Cir. 2010) (noting courts require "exhaustion of alternative remedies before a prisoner can seek federal habeas relief" (internal quotation marks omitted)). Exhaustion allows prison officials to develop a factual record and "an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Jones v. Bock, 549 U.S. 199, 204 (2007). Any arguments not advanced at each step of the administrative appeal are procedurally defaulted. See Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir. 2002). Moreover, if a prisoner cannot obtain an administrative remedy because of his failure to timely appeal at the administrative level, then the prisoner has procedurally defaulted his § 2241 claim, unless the prisoner can demonstrate cause and prejudice for the failure. See, e.g., Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3rd Cir. 1996), cited with approval in Watkins v. Compton, 126 F. App'x 621, 622 (4th Cir. 2005); Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994).
Requirements for a Preliminary Injunction
Usually, a temporary restraining order or preliminary injunction "protect[s] the status quo . . . to prevent irreparable harm during the pendency of a lawsuit [and] ultimately to preserve the court's ability to render a meaningful judgment on the merits." In re Microsoft Corp. Antitrust Litigation, 333 F.3d 517, 525 (4th Cir. 2003). However, mandatory preliminary injunctions, which compel action, "do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief." Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980) (citing Interstate Commerce Comm'n v. Baltimore & Annapolis R.R. Co., 64 F.R.D. 337 (D. Md. 1974)). Therefore, "a mandatory preliminary injunction must be necessary both to protect against irreparable harm in a deteriorating circumstance created by the defendant and to preserve the court's ability to enter ultimate relief on the merits of the same kind." Microsoft, 333 F.3d at 526.
In any event, a preliminary injunction is "an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23 (2008) (citing Munaf v. Green, 553 U.S. 674, 689-90 (2008)). To obtain a preliminary injunction, a petitioner must show four elements:
1) he is likely to succeed on the merits,Id. at 20; see also Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 345-47 (4th Cir. 2009) (explaining how the Winter standard for preliminary injunctions is different from the standard previously applied in the Fourth Circuit), judgment vacated and remanded, 559 U.S. 1089 (2010), in light of Citizens United v. Fed. Election Comm'n,558 U.S. 310 (2010). The party moving for injunction must establish all four elements to receive injunctive relief. Winter, 555 U.S. at 20.
2) he will suffer irreparable harm if the preliminary injunction is not granted,
3) the balance of equities favors him, and
4) the injunction is in the public interest.
Under Winter, the Supreme Court requires "that the [moving party] make a clear showing that [he] will likely succeed on the merits at trial." Real Truth About Obama, 575 F.3d at 346 (citing Winter, 555 U.S. at 20). Moreover, the party seeking the injunction must make a clear showing that it will likely suffer irreparable harm without an injunction. Id. at 347 (citing Winter, 555 U.S. at 20). Further, the Supreme Court in Winter emphasized the public interest requirement, requiring courts to pay "'particular regard for the public consequences in employing the extraordinary remedy of injunction.'" 555 U.S. at 24 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).
DISCUSSION
Motion to Dismiss/Summary Judgment
Petitioner claims he is entitled to an expungement of the DHO findings and sanctions from his BOP record and a recalculation of the disallowed 41 days of GCT, which Petitioner alleges were unlawfully taken away in violation of his constitutional rights. [Doc. 1 at 10.] The parties' submissions raise two issues for the Court to decide: first, whether Petitioner exhausted his administrative remedies; and second, assuming Petitioner exhausted his administrative remedies, whether Petitioner is entitled to any relief from the disciplinary hearing sanctions disallowing 41 days of GCT. The Court first will summarize the undisputed material facts relevant to its analysis, and then will address each of these two issues in turn.
Facts Underlying Petitioner's Disciplinary Action
On February 17, 2016, prison staff member G. Grimaldo ("Grimaldo") was monitoring inmate phone calls at FCI Butner. [Doc. 34-1 at 10.] He monitored a phone call placed under inmate McArthur's phone account on February 14, 2016, at 6:38 p.m., to a telephone number identified as Petitioner's sister's number. [Id.] Grimaldo noticed that the voice on the phone during the phone call was distinctively different from the voice of inmate McArthur. [Id.] During the conversation, Petitioner's sister referred to the inmate on the phone call as "Tiny," which Grimaldo verified through Sentry was Petitioner's nickname. [Id.] At the time of the phone call, Petitioner was on phone restriction and was known to use other inmates' phone accounts. [Id.] Later in the conversation, Petitioner requested that his sister send money the "other way." [Id. at 11.] Petitioner's sister stated she did not like doing that, but would do so. [Id.] Petitioner then provided inmate McArthur's full name and register number and asked his sister to send $60 to $70 to inmate McArthur. [Id.] As requested, Petitioner's sister placed $70 on inmate McArthur's account on February 14, 2016, via a Western Union transfer. [Id.]
The Court notes that the Incident Report also states Grimaldo monitored the phone call on "1/17/16." [Doc. 34-1 at 10.] This appears to be a scrivener's error and the correct date appears to be February 17, 2016. [See id.]
As a result of this incident, Petitioner was charged with a Code 297 violation—using a telephone for abuses other than illegal activity; a Code 328 violation—giving money to another inmate without staff authorization; and a Code 316 violation—being in an unauthorized area. [Id.] An Incident Report, No. 2816989, was written and delivered to Petitioner on February 17, 2016, at 1:55 p.m. by staff member Lt. H. Townsend. [Id. at 6, 10-12.] Petitioner was advised of his rights before the disciplinary hearing by staff member Counselor L. D. Lassiter on March 1, 2016, and then again by the DHO at the time of the hearing. [Id.]
An UDC hearing was scheduled for February 24, 2016, but was extended to a later date upon approval by the Warden. [Doc. 15-8.] The UDC hearing was then held on March 1, 2016, at which time Petitioner was again advised of his rights and, based on the seriousness of the charges, the UDC referred the matter to the DHO. [Doc. 15-7 at 5.] Petitioner was then given a notice of a discipline hearing before the DHO on March 1, 2016. [Doc. 15-9.] The DHO, Christopher Metzger, conducted a disciplinary hearing on March 22, 2016. [Doc. 15-12 at 2 ¶ 5.]
Petitioner was present at the disciplinary hearing, and he waived his right to have a staff representative present or to call any witnesses. [Docs. 15-12 at 2 ¶ 5; 34-1 at 6.] However, Petitioner presented a handwritten statement of the other inmate, McArthur, who was involved in the incident, and the DHO took the statement into evidence. [Docs. 15-12 at 2 ¶ 5; 34-1 at 6.] The DHO read aloud section 11 of Incident Report No. 2816989 and the handwritten statement provided by Petitioner. [Docs. 15-12 at 2 ¶ 6; 34-1 at 6.] Petitioner denied the charges, but elected to make no further comment. [Docs. 15-12 at 2 ¶ 6; 34-1 at 6.] The DHO also considered the signed approval memorandum from the Warden, which noted the UDC review for the Incident Report was delayed beyond the established time frame, but the DHO found the UDC provided justification for the delay. [Docs. 15-12 at 2 ¶ 7; 34-1 at 7.] After consideration of all of the evidence, the DHO found that Petitioner committed the prohibited acts as charged for violations of Code 297 and Code 328. [Docs. 15-12 at 2-3 ¶ 8; 34-1 at 7.]
The DHO did not find Petitioner committed the prohibited act of being in an unauthorized area in violation of Code 316, as charged in Incident Report No. 2816989, finding there was no evidence to support the Code 316 violation. [Doc. 15-12 at 2-3 ¶ 8.]
In reaching its decision, the DHO considered the following evidence: the Incident Report No. 2816989, Grimaldo's investigation, the Approval Memo signed by the Warden, a TRUFONE document showing inmate McArthur's pin number was used, a TRUWEB document showing inmate McArthur received $70 from Petitioner's sister, and the handwritten statement from inmate McArthur. [Docs. 15-12 at 3 ¶ 9; 34-1 at 7.] Notably, the DHO stated he "was not swayed or convinced of the Petitioner's innocence in any way," explained that Petitioner made little effort to refute the reporting officer's Report and the facts as presented to the DHO, and noted that, throughout the investigation, Petitioner elected to make no comment or present any defense to the charges. [Docs. 15-12 at 3 ¶ 9; 34-1 at 8.] The DHO imposed the following sanctions: disallowance of 27 days GCT and loss of 3 months telephone privileges for the Code 297 violation and disallowance of 14 days GCT for the Code 328 violation. [Docs. 15-12 at 3 ¶ 10; 34-1 at 8.] The DHO prepared a written report detailing his decision, the evidence relied upon, and the reasons for the sanctions imposed, and he signed the report on May 4, 2016. [Docs. 15-12 at 3 ¶ 12; 34-1 at 6-9.] A copy of the DHO decision was delivered to Petitioner on June 9, 2016, at 10:45 a.m. [Docs. 15-12 at 3 ¶ 12; 34-1 at 9.]
Analysis
Exhaustion of Administrative Remedies
As an initial matter, Respondent contends that Petitioner failed to exhaust his administrative remedies pursuant to the BOP's Administrative Remedy Process. [Docs. 15 at 6; 15-3 ¶ 6.] As required by the BOP's Administrative Remedy Process, when appealing the actions of a DHO, an inmate must submit an initial appeal to the Regional Director for the region where the inmate is located. 28 C.F.R. § 542.14(d)(2). If the inmate is dissatisfied with the regional level response, he may file an appeal with the BOP Central Office, in Washington, D.C. 28 C.F.R. § 542.15(a), (b). The Central Office appeal is the final level of administrative review in the BOP administrative remedy process. Id.
Here, Petitioner initiated the Administrative Remedy Process by appealing the DHO's decision to the Mid-Atlantic Regional Office ("Regional Office"), via a BP-10, which was received by the Regional Office on July 20, 2016. [Docs. 15-3 ¶ 7; 15-4.] The Regional Office rejected Petitioner's appeal because he filed it with the wrong office. [Docs. 1 at 4 ¶ 6; 15-3 ¶ 7; 15-4.] Petitioner was directed to re-file his appeal in the proper regional office where he is attached. [Docs. 15-3 ¶ 7; 15-4.] Respondent contends Petitioner should have filed his BP-10 appeal with the Southeast Regional Office ("SERO"), which covers FCI Williamsburg, where Petitioner was incarcerated at the time he filed his appeal. [Docs. 15-3 ¶ 7; 15-1.]
The Court notes that the proper identification numbers for Petitioner's administrative remedy appeals are not clear from the record. In the Petition, Petitioner identifies his appeal to the Mid-Atlantic Regional Office as remedy No. 875884-RI, filed on June 24, 2016, and his appeal to the Central Office as remedy No. 875884-A1, filed on October 6, 2016. [Doc. 1 at 4 ¶ 6-7.] In the Administrative Remedy Update reports attached to Respondent's motion for summary judgment, Petitioner's appeal to the Regional Office bears the remedy identification No. 869662-R2, received on July 20, 2016 [Doc. 15-4], and Petitioner's appeal to the Central Office bears the remedy identification No. 869662-A1, received on August 2, 2016 [Doc. 15-6]. In Petitioner's affidavit filed in response to the motion for summary judgment, Petitioner avers that he "did exhaust admin. remedies by filing an appeal" to both the Regional Office and Central Office, listing the identification numbers as No. 869662-R1 and 869662-A1, which are consistent with Respondent's remedy identification numbers. [Doc. 27-1 at 1.] The Court also notes that the dates cited by the parties are inconsistent. It appears to the Court that Petitioner filed numerous appeals to both the Regional and Central Office regarding the Incident Report No. 2816994 and the subsequent DHO report.
According to Respondent, instead of filing an appeal with the SERO, the proper regional office, Petitioner appealed the Regional Office's rejection of his BP-10 to the Central Office, where it was received on August 2, 2016. [Docs. 15-3 ¶ 8; 15-6.] On August 23, 2016, the Central Office rejected Petitioner's appeal, again instructing Petitioner to follow the directions provided on the prior Regional Office rejection notice and to resubmit his appeal to the SERO. [Docs. 15-3 ¶ 8; 15-6.] According to Respondent, Petitioner never attempted to submit his BP-10 to the SERO. [Doc. 15-3 ¶ 9.]
Petitioner contends he filed his appeal to the Central Office on October 6, 2016 at Administrative Remedy number 875884-A1, and that it was rejected on November 1, 2016. [Doc. 1 at 4 ¶ 7.]
Petitioner, on the other hand, has filed an affidavit stating that he "did exhaust admin. remedies by filing an appeal" to both the Regional Office and the Central Office. [Doc. 27-1 at 1 ¶ 1.] Petitioner admits that his initial appeals at "both levels were rejected" with the reason given that they were filed at the "wrong level" and "untimely." [Id. at 1 ¶ 2.] However, Petitioner contends that he "did resubmit my appeal to the (SERO)" but that he "did not receive a response from the (SERO) for the appeal." [Id. at 2 ¶¶ 3-4.]
As a general rule, the exhaustion of administrative remedies is not waivable. Jeter, 1998 WL 482781, at *2. However, although the Fourth Circuit does not appear to have addressed the issue, some courts have held that the judicial exhaustion requirement of § 2241 may be excused by courts for discretionary reasons, such as where requiring exhaustion would be futile. See, e.g., Dunkley v. Hamidullah, No. 6:06-cv-2139-JFA-WMC, 2007 WL 2572256, at *2 (D.S.C. Aug. 31, 2007). Further, courts have emphasized a petitioner's failure to exhaust administrative remedies may only be excused upon a showing of cause and prejudice. McClung, 90 F. App'x at 445 (citing Carmona, 243 F.3d at 634-35).
Based on the parties' submissions, as detailed above, it is unclear from the record before the Court whether Petitioner exhausted his administrative remedies pursuant to the BOP Administrative Remedy Process prior to filing his habeas Petition. As noted, Respondent contends that Petitioner has not exhausted his administrative remedies because he filed his original appeal with the incorrect regional office and he failed to file his appeal with the proper regional office, despite being directed to do so. Respondent has presented affidavits and BOP records to support this contention. However, Petitioner argues that he has exhausted his administrative remedies, claiming that he filed his appeal in the proper regional office when directed to do so, but received no response. Petitioner has submitted an affidavit to support his contention, but presents no other evidence. Petitioner also argues that any failure to exhaust should be excused because the Administrative Remedy Process is "cumbersome" and because the BOP has intentionally confused the issues concerning Petitioner's appeal in this case.
Because there remains an issue of fact as to whether Petitioner timely exhausted his administrative remedies through the BOP's Administrative Remedy Process, the Court denies Respondent's motion for summary judgment on this basis and will now address the merits of Petitioner's claims.
Merits of Petitioner's Claims
Turning to the merits of the Petition, the Court finds that Respondent is entitled to summary judgment. Petitioner asserts that he is entitled to an expungement of the charges from his disciplinary record and recalculation of the disallowed GCT. The Court disagrees.
Petitioner is a federal inmate, whose sentence is governed by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997, et seq. Federal statute governs the release of a prisoner:
A prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment,
less any time credited toward the service of the prisoner's sentence as provided in subsection (b).18 U.S.C.A. § 3624. Among other things, subsection (b) provides the calculation of credit toward service of sentence for satisfactory behavior as follows:
(1) Subject to paragraph (2), a prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. Subject to paragraph (2), if the Bureau determines that, during that year, the prisoner has not satisfactorily complied with such institutional regulations, the prisoner shall receive no such credit toward service of the prisoner's sentence or shall receive such lesser credit as the Bureau determines to be appropriate. In awarding credit under this section, the Bureau shall consider whether the prisoner, during the relevant period, has earned, or is making satisfactory progress toward earning, a high school diploma or an equivalent degree. Credit that has not been earned may not later be granted. Subject to paragraph (2), credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.18 U.S.C.A. § 3624(b). Thus, the statute provides that a prisoner may earn 54 days GCT credit per year. Id. However, GCT credits do not vest until the date of the prisoner's release. Id. Disallowance of GCT reduces the amount of good conduct time that a prisoner may earn in a particular year. See 28 C.F.R. § 541.3(b). The DHO may only disallow the amount of GCT that is available to a prisoner in a given year, which, in this case, would be a maximum of 54 days. Id.
(2) Notwithstanding any other law, credit awarded under this subsection after the date of enactment of the Prison Litigation Reform Act shall vest on the date the prisoner is released from custody.
Petitioner appears to argue the disallowance of GCT violated prison policy and constitutional due process. Certain procedural safeguards apply when loss of statutory GCT 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;Id. at 563-76. Additionally, DHO findings revoking a prisoner's GCT must be supported by "some evidence in the record." Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985). In Hill, the Supreme Court declined to adopt a more stringent evidentiary standard as a constitutional requirement, stating:
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.
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. 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; see also 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 noted in Hill:
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 shows that the due process requirements stated in Wolff were observed in this case. Petitioner was provided with written notice of the charges more than 24 hours before a hearing on the charges [Docs. 34-1 at 6, 10 (indicating Petitioner was advised of the charges on the same day the incident report was issued); 15-9], and he was provided with a copy of the DHO report that includes information about the evidence the DHO relied on and the reasons for the disciplinary action [Doc. 34-1 at 6-9]. 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, however, refused to sign the form to indicate he had been advised of his rights. [Docs. 15-10; 15-9.] At the DHO hearing, Petitioner waived his right to have a staff representative present, and he provided a written statement by his only requested witness. [Doc. 34-1 at 6.] As to the fifth requirement stated in Wolff, Petitioner has not alleged and has failed to provide any evidence that the DHO was not impartial. Rather, the record establishes the DHO conducted a hearing and examined the record, including the evidence put forth by Petitioner. [Doc. 34-1 at 6-7 (indicating the DHO considered the reporting officer's written statement and Incident Report, the approval memo signed by the Warden, the TRUFONE document, the TRUWEB document, and the hand written statement of Petitioner's requested witness).] Accordingly, Petitioner was afforded all due process required under Wolff.
As previously stated, judicial review of prison disciplinary actions is limited solely to a determination of whether there is some evidence in the record to support the DHO's decision. See Hill, 472 U.S. at 454-56. Here, there is some evidence in the record to support the DHO's decision that Petitioner committed the offenses of use of the telephone for abuses other than criminal activity in violation of Code 297 and giving money to another inmate without staff authorization in violation of Code 328. Therefore, the evidentiary standard of Hill is satisfied in this case.
Because Petitioner was afforded the due process required under Wolff and some evidence supports the DHO's decision as required under Hill, Petitioner's remaining assertions are without merit. However, the Court briefly addresses his claims.
Petitioner's first and fifth grounds assert violations of BOP policies. However, the case law is clear, "the BOP's violations of its own policies do not amount to a due process violation." Bauer v. Warden FCI Williamsburg, No. 6:16-cv-304-RMG, 2017 WL 318683, at *2 (D.S.C. Jan. 23, 2017); see also Jackson v. Cain, 864 F.2d 1235, 1251 (5th Cir. 1989) (failure to follow procedural regulations "does not establish a violation of due process, because constitutional minima may nevertheless have been met") (internal quotation and citation omitted); Agramonte v. Bragg, No. 0:13-cv-1956-MGL, 2013 WL 5530518, at *4 (D.S.C. Oct. 7, 2013) (finding no due process violation in not completing the UDC review within the suggested period in the regulations).
Petitioner's second and third grounds assert that Code 328 does not prohibit his charged conduct and that he did not commit the Code 297 violation. However, as explained above, some evidence supports the DHO's decision.
Petitioner's fourth ground asserts the DHO incorrectly calculated his GCT under BOP policy. A review of the record in this case, however, shows that the DHO properly disallowed a total of 41 days of GCT as a sanction for Petitioner's code violations, as recorded on the Sentence Monitoring Good Time Data sheet. [Doc. 15-14.] Petitioner has failed to present any evidence to rebut the data and calculations presented by Respondent.
Petitioner's sixth ground asserts the disciplinary write-up was retaliatory because Petitioner filed a Prisoner Rape Elimination Act ("PREA") report against two prison staff members. Other than this conclusory assertion, however, the record before the Court is devoid of any evidence whatsoever that the Incident Report was issued in retaliation for Petitioner's PREA report. Further, as noted above, some evidence supports the DHO's decision that Petitioner committed the charged offenses in violation of Code 297 and Code 328.
In light of all of the foregoing, even assuming that Petitioner has satisfied the exhaustion requirement, he has failed to state a cognizable claim for a habeas action pursuant to § 2241. The Court finds that there is no genuine dispute as to any material fact and that Respondent is entitled to judgment as a matter of law. Accordingly, dismissal of the habeas Petition is appropriate.
Motion for Injunction
Petitioner has filed a motion for injunction, asking the Court to order the Respondent and its agents and employees to return to Petitioner all of his "legal papers, documents and records; along with his pens, paper, envelopes taken from him on February 09, 2018." [Doc. 26 at 1.] Petitioner contends Respondent confiscated these items and that this conduct was a deliberate attempt by BOP officials to "hinder and interfere" with Petitioner's access to the Court in this and other cases. [Id.] Petitioner notes that, at the time he filed his motion, he had replies due to the Court and explained that he could not effectively reply without the needed materials. [Id.]
As an initial matter, to the extent Petitioner alleges claims in his motion for injunction unrelated to this action, he has failed to show that he is entitled to relief pursuant to Winter. "[A] party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint." Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). The purpose of interim equitable relief is to protect the movant, during the pendency of the action, from being harmed in the manner in which the movant contends it was or will be harmed through the illegality alleged in the complaint. Thus, a preliminary injunction may never issue to prevent an injury or harm which not even the moving party contends was caused by the wrong claimed in the underlying action. Here, because Petitioner asserts claims related to his disallowed GCT, and Petitioner's motion for injunction has nothing to do with the habeas Petition and instead seeks injunctive relief related to Petitioner's access to legal papers, documents, and records, the undersigned recommends that Petitioner's motion be denied.
Further, Petitioner's motion should be denied as moot and because he has failed to meet the requirements for an injunction because he has not made a showing to demonstrate that any of the four factors under Winter weigh in his favor. Importantly, the Court finds that, despite Petitioner's allegations, he has been able to communicate extensively and effectively with the Court; he has filed numerous motions, briefs, and letters in this case; and he has had a full opportunity to litigate his claims in this matter. Furthermore, the Court recommends summary judgment in favor of Respondent and dismissal of the Petition, thus rendering Petitioner's motion for injunction moot. Accordingly, Petitioner's motion for injunction should be denied.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment be GRANTED and the Petition be DENIED. It is further recommended that Petitioner's motion for injunction be DENIED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge July 13, 2018
Greenville, South Carolina