Opinion
C/A No. 4:19-2818-RMG-TER
04-14-2020
DEXTER TYSON, Petitioner, v. W. E. MACKLEBURG, WARDEN Respondent.
REPORT AND RECOMMENDATION
The Petitioner, Dexter Tyson, ("Petitioner"), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on October 3, 2019. On December 11, 2019, the Respondent filed a motion to dismiss or, in the alternative, a motion for summary judgment along with a return containing supporting memorandum and exhibits. (ECF Nos. 13 and 14). The undersigned issued an order filed December 12, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences if he failed to respond adequately. (ECF No.15). On January 14, 2020, Petitioner filed a response in opposition. (ECF No. 17).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
STANDARD FOR SUMMARY JUDGMENT
As the parties submitted evidence outside of the pleadings, the Motion to Dismiss or, in the alternative, Motion for Summary Judgment, will be treated as a Motion for Summary Judgment.
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any." Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
ARGUMENTS
Petitioner is currently incarcerated at the Federal Correctional Institution Estill (FCI Estill) in Estill, South Carolina. Petitioner filed his petition pursuant to 28 U.S.C. § 2241, challenging two different hearings on two different charges before a disciplinary hearing officer ("DHO") which resulted in a loss of good conduct time credits as one of the sanctions. In the petition, Petitioner requests that this court find that the "some evidence" standard was not met by the DHO on both claims and order the BOP to restore the fifty-four days of good conduct time credits. (ECF No. 1-1 at 11 of 11). Incident Report 2970268
In his petition, Petitioner states that he was charged with a Code 219 violation alleging that he stole thirty raw eggs from the Food Service on April 3, 2017, valued at $1.80. Petitioner received a disciplinary hearing and was found guilty. The disciplinary hearing officer (DHO) disallowed twenty-seven days good conduct time based on the finding. Petitioner argues that his due process rights were violated and that the DHO showed favoritism and was not impartial. Specifically, Petitioner alleges that two weeks prior to this incident, another inmate was charged with trying to leave Food Service with food items wrapped to his body with a value of $29.80 but received an Incident Report charging him with a violation Code 305, Possession of Anything Not Authorized, and Code 307, Refusing to Obey an Order of a Staff Member instead of a charge for Stealing. Even though the items the other inmate was charged with taking were worth more than the eggs Petitioner was charged with taking, Petitioner contends that the DHO did not impose a sanction of a loss of good conduct time against the other inmate. Additionally, Petitioner argues that he was caught with the raw eggs but was not charged as the person who stole them only the person that was in "possession" of them. Therefore, Petitioner argues that the "is impossible for the DHO to meet the 'some evidence' standard regarding Tyson as the actual person that stole the 30 eggs. 'Some evidence' only indicates that Tyson was in 'possession' of 30 stolen eggs." (ECF No. 1-1 at 8 of 11).
To the extent Petitioner is attempting to raise an equal protection or discrimination claim, it fails. In order to establish an equal protection claim, the inmate must show that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985); Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). See Cook v. Babbitt, 819 F.Supp. 1, 9 (D.D.C.1993). Petitioner has failed to allege or show that the alleged unequal treatment was the result of intentional or purposeful discrimination by the defendants. There is no evidence other than Petitioner's conclusory claim that another inmate who stole different items from Food Service on a different date was charged with a different prohibited act code. This bald assertion without evidentiary value, even if true, fails to create an issue of fact to support a claim for equal protection or discrimination. Therefore, it is recommended that any claim as to equal protection or discrimination be denied.
Respondent asserts that on April 3, 2017, Petitioner received an incident report at the FCI in Jesup, Georgia, for violating Prohibited Act Code 219, Stealing. (See the declaration of Amy Williams along with exhibits, ECF No. 14-1 ). Petitioner received a copy of the Incident Report on April 3, 2017, at 8:06 p.m. (Id. at 3 of 20). A lieutenant in charge of conducting an investigation into the incident advised Petitioner of his rights that same date. (Id. at 4). Petitioner stated that he understood his rights and admitted to taking the eggs from Food Service, that he was going to take them back to his unit to sell, and that he was willing to pay for the eggs. (Id.).The Investigator determined that Petitioner had been properly charged with stealing. (Id.).Petitioner requested no witnesses. (Id.).A Unit Disciplinary Committee (UDC) hearing was held on April 5, 2017, at which time Petitioner had no comment. (Id.).The incident report was forwarded to the DHO for further processing. (Id.).Petitioner was provided a Notice of Discipline Hearing before the DHO form on April 5, 2017, and waived his right to a staff representative and right to call witnesses. (ECF No. 14-1 at 6). Petitioner was provided with a form advising him of his rights at the DHO hearing. (Id. at 7). A DHO hearing was conducted on April 11, 2017, at which time Petitioner admitted that he was in possession of thirty eggs from the Food Service. (Id. at 8-9).The DHO noted that Petitioner waived his right to a staff representative and that Petitioner waived his right to call a witness. (Id.). The DHO noted that Petitioner's due process rights were reviewed with him at the time of the hearing, and Petitioner indicated he understood his rights, had no documentary evidence to present, did not request a staff representative, and did not request a witness. (Id. at 8-9).The DHO found that Petitioner committed the prohibited act as charged and relied upon the written statement of the reporting officer, the photograph of the eggs, and Petitioner's admission.(Id. at 9). The DHO imposed sanctions including disallowance of twenty-seven days of good conduct time and loss of commissary privileges for six months. (Id. at 9).The DHO documented that the sanctions were imposed because stealing creates the potential for conflict which interferes with the effective operation of the institution. (Id.).The DHO explained that the sanctions were imposed to convey the seriousness and inappropriateness of Mr. Tyson's actions and to deter him and others from committing similar acts in the future. (Id.). Petitioner was advised of his appeal rights and was provided a copy of the final DHO report on April 14, 2017. (Id. at 10). Incident Report 2975819
On April 16, 2017, Petitioner received an incident report at FCI Jesup, Georgia, for violating Prohibited Act Code 2019, Stealing, and Code 203, Threatening another with bodily harm. (Id. at 11 of 20). Based on the incident report, Petitioner was seen with something under his clothes exiting the Food Service area and he was ordered back and searched. (Id.). Petitioner was found to have a black body wrap with twenty-four pies wrapped around his body. (Id.). Petitioner began taking the pies out of the body wrap and throwing them into the trash. (Id.). Petitioner refused to stop throwing the pies away and walking back into the Food Service door with the pies and wrap. Petitioner was ordered to stop and go to the Lieutenant's office but he continued to walk inside Food Service while stating to the staff member "[y]ou are lying". (Id.). The staff member followed Petitioner noting that he was attempting to trash the pies and the body wrap. (Id.). The report stated that Petitioner turned toward the staff member's direction, stepped close to her face, and gave her a very mean expression making her feel threatened with physical harm. (Id.). The supervisor called for assistance in Food Service over the radio, and Petitioner was taken to the Lieutenant's office. (Id.). The pies had to be discarded in the trash due to being in contact with Petitioner's body and leaving the Food Service. (Id.). There were twenty-four pies valued at $9.75. (Id.). Petitioner received a copy of the Incident Report on April 17, 2017 at 12:00 p.m. (Id.). The Investigator advised Petitioner of his rights on April 17, 2017, which Petitioner stated he understood. (Id.). Petitioner stated that it was a total fabrication of the truth because he only had seven pies in his black body wrap and never stole them. (Id.). Petitioner alleges that they were given to him by a lady who had a box of pies in her hand when she came to get him and, when she falsely accused him of stealing the pies, it caused him to have an upset look on his my face. (Id.). Petitioner requested no witnesses at the time. (Id.).The investigator noted in his conclusion as follows:
Upon inmate Tyson's request that I look at the cameras, I observed inmate Tyson walk out the Chapel side exit door. Ms. Windham followed him out the door. Ms Windham was carrying a box as she walked toward Tyson. A few seconds later, I observed Ms. Windham and Tyson enter the Chapel side door. Inmate Tyson was now holding the box and Ms. Windham was following him. Tyson and Ms.
Windham walked to the back of Food Service to the dish area. Tyson put the box down and Ms. Windham picked it up. Tyson walked away. Ms. Windham approached Tyson and Tyson walked around her in a circle. At this point, I observed Tyson walking away from Ms. Windham and several staff responded to the immediate area. Tyson was escorted to the Lieutenant's Office.(ECF No. 14-1 at 12). The Investigator concluded that the Incident Report was warranted and would be referred to the UDC. (Id.).
A UDC hearing was held on April 18, 2017. During the UDC hearing, Petitioner stated that the whole incident was a total fabrication and that the Food Service's supervisor had it in for him. The Incident report was forwarded to the DHO for further processing. (Id.). Petitioner was provided with a Notice of Discipline Hearing before the DHO form on April 18, 2017. (Id. at 14). He requested a staff representative and one inmate witness. (Id.). Petitioner was also provided a form advising him of his rights at the DHO hearing. (Id. at 15). His staff representative signed the Duties of Staff Representative form. (Id. at 16). A DHO hearing was conducted on May 2, 2017. (Id. at 17-19). Petitioner denied that he stole anything and denied threatening the staff member with bodily harm or any other offense because he was never close to her. (Id.). Petitioner requested that the DHO review the video. (Id.). The DHO noted that Petitioner's staff representative appeared and stated that he reviewed the video and observed that Petitioner never approached the staff member and that she was the one following the inmate. (Id.). Petitioner waived his right to a witness.(Id. at 17). The DHO considered the Incident Report and Investigation and the documentary evidence consisting of video footage of the incident, a waiver form, and a photograph of the stolen pies. (Id. at 17-19). The decision revealed that Petitioner's due process rights were reviewed with him at the time of the hearing and that he indicated that he understood his rights, requested a staff representative, but did not request a witness. (Id. at 18).The hearing started on April 25, 2017, but Petitioner requested the DHO to review the video of the incident, so the hearing was stopped and resumed on May 2, 2017, after the DHO reviewed the video as requested by Petitioner. (Id.).The DHO found that Petitioner committed the Prohibited Act Code 203, Threatening Another With Bodily Harm. (Id.).The DHO relied on the reporting officer's account, the video of the incident , and gave greater weight to the reporting officer's account. (Id.). The charge of Prohibited Act Code 219, Stealing was expunged as the DHO felt that this charge was not necessary to pursue due to the finding of Code 203. (Id. at 19). The DHO imposed sanctions including disallowance of twenty-seven days good conduct time, disciplinary segregation for thirty days, and loss of commissary privileges for twelve months. (Id.). The DHO documented that the sanctions were imposed because the threat poses a serious threat to the health, safety, and welfare of the person involved as well as other inmates and staff. (Id.).The DHO explained that the sanctions were imposed to convey the seriousness of Mr. Tyson's actions, to deter him from committing similar acts in the further, and as punishment. (Id.). Petitioner was advised of his appeal rights. (Id.). Petitioner was provided a copy of the final DHO report on May 9, 2017. (Id. at 20).
In response to summary judgment, Petitioner asserts with regard to incident 2970268 that there is no evidence that he stole the eggs only evidence that he was in possession of thirty raw eggs. (Id.). Therefore, Petitioner argues that he should have been charged with an Act of Possession of Anything not Authorized instead of a charge for stealing for which no evidence existed. Petitioner asserts that "Mere possession of an object does not necessarily mean that the person in possession of the object, stole the object." (ECF No. 17 at 6 of 9).
As to Incident 2975819, Petitioner argues that his actions toward staff only consisted of a facial expression not a verbal or physical threat, and a facial expression cannot imply an intent to inflict physical harm to someone. (Id. at 6-8).Petitioner asserts that the reporting staff member had "an ax to grind" with him because it was the same reporting officer in the first incident with the eggs who did not want him assigned to return to Food Service.(Id. at 7).
The DHO's order with regard to Incident 2970268 states that he relied on the reporting officer's report, photographs of the food service items, and the fact that Petitioner admitted the charge to the DHO. (ECF No. 14-1 at 8). With regard to Incident 2975819, the DHO stated in the order that he relied on the reporting officer's report, and a review of the video footage revealing that Petitioner turned in her direction, stepped close, and "walked around the staff member in a circle face to face in which it is obviously the officer felt threaten to her safety." (Id. at 18).The DHO informed Petitioner that his behavior was considered "very hostile, aggressive and there is never a good reason for an inmate to even consider the possibility of attacking a staff member, or getting into a physical altercation with a staff member." (Id. at 18).
DISCUSSION ON MERITS
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 is affected. Inmates have a protected liberty interest in the accumulation of good time credits. See Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Therefore, in prison disciplinary proceedings where a prisoner faces the possible loss of good conduct credits, he is entitled to certain due process protections. Id. These include advance written notice of the charges against him, a hearing, the right to call witnesses and present evidence when doing so is not inconsistent with institutional safety and correctional concerns, and a written decision. Wolff, 418 U.S. at 564-571. Furthermore, substantive due process is satisfied if the disciplinary hearing decision was based upon "some evidence." Superintendent, Mass. Correctional Institute v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
Here, Petitioner has not shown a violation of due process under Wolff, supra. Petitioner received a copy of the Incident Report for each incident which advised Petitioner of the charges; Petitioner was given notice of each disciplinary hearing and assigned a staff representative as requested in the second hearing; a hearing was held on each charge; Petitioner received the DHO decisions outlining the evidence, the sanctions, the reason for the sanctions, and the appeal rights; and, Petitioner appealed the both decisions.
Petitioner does not contest that any of his rights were violated during the DHO hearings other than his challenge to the sufficiency of the evidence and failure to be impartial with regard to the first incident. There is nothing in this case history which shows a violation of Wolff and its progeny. To sustain a conviction in an institutional setting, the fact-finder need only show that some evidence existed to support the decision. See Irvin v. Federal Bureau of Prisons, 2009 WL 1811245 (D.S.C.2009) (citing Superintendent, Massachusetts Correction Institution v. Hill, 472 U.S. 445-456-457, 105 S.Ct. 2768, 86 L.Ed. 2d 356 (1985)); see also Chevron U.S.A. v. Natural Res. Def. Cil., Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (Agency's decisions are not to be second-guessed by federal courts unless they are arbitrary, capricious, or manifestly contrary to the statute). This standard was clearly met in this case. Here, the DHO decision was based on the statement of the reporting officers/staff member, Petitioner's admittance to having the eggs and at least seven pies on his body, photographs, and video footage with regard to the second incident. While Petitioner disagrees with the DHO's findings, there was "some evidence" to support the decision. Superintendent, Massachusetts Correction Institution v. Hill Superindedent, supra. Therefore, Petitioner's claim that he was denied due process is without merit and should be dismissed.
"[T]he Due Process Clause clearly requires a fair trial in a fair tribunal ..., before a judge with no actual bias against the defendant or an interest in the outcome of his particular case." Bracy v. Gramley, 520 U.S. 899, 905 (1997) (internal quotations and citations omitted). However, not all claims of judicial bias rise to a constitutional level. Rowsey v. Lee, 327 F.3d 335, 341 (4th Cir. 2003). Courts "[o]rdinarily ... presume that public officials have properly discharged their official duties." Bracy, 520 U.S. at 909 (citation omitted). "In order to prevail in a deprivation of due process claim, a [petitioner] must show a level of bias that made 'fair judgment impossible.' " Rowsey, 327 F.3d at 341 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Here, Petitioner offers no evidence, only conclusory allegations, that the DHO was not impartial. Petitioner has not shown a level of bias that made "fair judgment impossible". --------
In conclusion, there is no evidence of a due process violation in this action as Petitioner received all of the due process safeguards delineated in Wolff. Accordingly, it is recommended that Respondent's motion for summary judgment be granted and the petition dismissed.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 14) be GRANTED and this claim dismissed.
Respectfully Submitted,
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge April 14, 2020
Florence, South Carolina