Opinion
C. A. 8:23-cv-04677-MGL-JDA
10-12-2023
Christopher L. Victoria, Petitioner, v. Warden Palmer, Respondent.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
Christopher L. Victoria (“Petitioner”), proceeding pro se and in forma pauperis, brings this habeas corpus action under 28 U.S.C. § 2254. Petitioner is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently confined at the McCormick Correctional Institution (“McCormick”). [Doc. 1 at 1.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge. For the reasons below, this action is subject to summary dismissal.
BACKGROUND
Petitioner commenced this action by filing a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on the standard court form (the “Petition”). [Doc. 1.] The claims in the Petition arise from an inmate disciplinary conviction against Petitioner while he was incarcerated at McCormick. [Id. at 1.] Specifically, Petitioner was convicted on July 17, 2023, after pleading guilty to a code 857 violation for assault and/or battery of an inmate with means and/or intent to kill or injure. [Id.] As a result, Petitioner was sentenced to 60 days of disciplinary detention and the loss of 180 days of visitation, phone, and canteen privileges. [Id.]
Petitioner asserts the following grounds in his Petition:
GROUND ONE: Violation of “Stand Your Ground” law/rights.
Supporting Facts: I was falsely charged with assault. Alleged victim came out of place, into my cell/living area, and attacked me.
GROUND TWO: Violation of Due Process.
Supporting Facts: Incident[] reports filed did not fully present facts underlying the offense. Extension report was not filed prior to expiration of 21 day calendar period. Hearing Officer was not fair and impartial. RHU Classification Committee were not fair and impartial.
GROUND THREE: Violation of Eighth Amendment right to be free from cruel and unusual punishment.
Supporting Facts: Inmate was let out of place, which led to attack. Found guilty in violation of due process rights. Had release date pushed. Placed in RHU and on S.D. custody.
GROUND FOUR: Suffering actual prejudice from violation of rights.
Supporting Facts: Placed in lock-up; had canteen, visitation and phone privileges [taken] away; placed on Security Detention; lost institutional job; barely getting rec[reation].[Id. at 5, 7, 8, 10.] For his relief, Petitioner requests that the Court invalidate the disciplinary conviction, restore all of his privileges, correct his release date, and release him from lockup and security detention custody to general population. [Id. at 15.]
Finally, as to the exhaustion of his institutional/administrative remedies, Petitioner makes the following allegations. Petitioner contends he attempted to appeal his conviction through the SCDC grievance system, but the result of that grievance at the “IGC” level was “unprocessed.” [Id. at 2.] Additionally, the “Grievance Branch Chief” affirmed the “unprocessed grievance.” [Id.] By way of further explanation, Petitioner notes that he pleaded guilty to the assault charge and guilty pleas “are non-grievable pursuant to SCDC policy.” [Id. at 5.] Petitioner contends that he filed an informal resolution (the IGC “unprocessed grievance”), asked if he “could file a step 2 on [the] unprocessed grievance and was told no . . . but was directed to try to send [a] grievance to Branch Chief but to no avail [because that] was also denied.” [Id.] According to Petitioner, without a “final decision[, the] Admin[istrative] Law Court does not hear appeal not fully processed.” [Id.] Petitioner contends that, although the Administrative Law Court has jurisdiction, they will not hear an appeal unless he first exhausts his remedies; however, because he cannot get his Step 1 grievance resolved, he cannot proceed to the Administrative Law Court. [Id. at 12.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Petitioner filed this action in forma pauperis under 28 U.S.C. § 1915. This statute authorizes the Court to dismiss a case if it is satisfied that the action fails to state a claim on which relief may be granted, is frivolous or malicious, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Further, this Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012). Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
Because Petitioner is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, even under this less stringent standard, the Petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
DISCUSSION
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). Under § 2254, a federal court may issue a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Here, the Petition is subject to dismissal because it is premature as Petitioner has not exhausted his state court remedies. To exhaust state court remedies when attacking the execution of a sentence, a petitioner must follow the procedure set out in Al-Shabazz v. State, 527 S.E.2d 742, 750 (S.C. 2000). See Slezak v. S.C. Dep't of Corrs., 605 S.E.2d 506, 507 (S.C. 2004). The South Carolina Supreme Court has explained that a state prisoner's claim attacking the execution of his sentence is properly exhausted when it has been grieved at each step of the prison grievance system followed by an appeal to the South Carolina Administrative Law Court (“SCALC”). See Brown v. Warden of Kirkland Corr. Inst., No. 4:18-cv-00369-HMH-TER, 2018 WL 4211999, at *3 (D.S.C. Aug. 15, 2018), Report and Recommendation adopted by 2018 WL 4205477 (D.S.C. Sept. 4, 2018). Under the South Carolina Administrative Procedures Act (“SCAPA”) and the South Carolina Appellate Court Rules, an inmate dissatisfied with a decision by the SCALC may seek judicial review in the South Carolina Court of Appeals, with an appeal of an undesirable Court of Appeals decision to the South Carolina Supreme Court. Id. Thus, under Al-Shabazz, a petitioner must exhaust his administrative remedies through the SCDC grievance process, the SCALC, and the South Carolina appellate courts before he brings a petition for federal habeas review. Id.
A court may sua sponte dismiss a petition where an inmate's failure to exhaust his administrative remedies is apparent on the face of the petition. See Banks v. Marquez, 694 Fed.Appx. 159, 160 (4th Cir. 2017) (noting the petitioner “explicitly admitted in his petition that he failed to exhaust his administrative remedies”); Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017) (“A court may sua sponte dismiss a complaint when the alleged facts in the complaint, taken as true, prove that the inmate failed to exhaust his administrative remedies.”).
Here, the Petition is subject to summary dismissal because it is clear from the allegations in the Petition that Petitioner failed to exhaust his administrative remedies. First, Petitioner concedes he did not file a Step 2 grievance. [See, e.g., Doc. 1 at 5 (explaining he asked “if [he] could file a Step 2 on unprocessed grievance and was told no”), 12 (explaining he “can't get by Step 1 grievance”).] Even assuming that Petitioner had exhausted all of the required steps in the grievance process at SCDC, he also concedes that he did not file an action with the SCALC challenging the grievance determination. [Id. at 12.] Further, Petitioner acknowledges that he did not present his claims to the “highest state court having jurisdiction” [id.] and publicly available dockets for the South Carolina appellate courts show he did not make any attempt to challenge the claims raised in the present Petition by filing an appeal to the state appellate courts. See South Carolina Appellate Case Management System, https://ctrack.sccourts.org/ public/publicActorSearch.do (search by Petitioner's first and last name) (last visited Oct. 12, 2023). As such, Petitioner has failed to exhaust his remedies.
Petitioner's argument that he was unable to exhaust because a guilty plea is a non-grievable issue does not excuse the exhaustion requirement. The failure of an inmate under these circumstances to appeal SCDC's final decision to the SCALC or state courts of appeals bars a federal habeas action:
Petitioner may contend that, as he was told that his guilty plea was a non-grievable issue, he was not required to complete the prison grievance process before filing this federal habeas petition. However, even assuming for purposes of further discussion of Petitioner's claim that Petitioner is correct, his claim still fails. To exhaust state court remedies in South Carolina, an inmate must appeal the final decision of SCDC pursuant to the [SCAPA]. Under the [SCAPA], if an inmate is not satisfied with the agency's final decision, the prisoner must first file an appeal with the Administrative Law Judge.
...
Petitioner may contend that he has “cause” for failing to exhaust because the Respondent “obstructed” his access to the courts by dismissing his Step 1 grievance as unprocessed based on a finding that he had failed to present a viable grievable issue. However, even assuming arguendo that Petitioner was somehow “excused” from filing his Step 2 grievance appeal in this case because of his guilty plea being a non-grievable matter, he has offered no cause as to why he failed to file an appeal of the Administrative Law Court's decision.Moultrie v. Reynolds, No. 9:15-cv-0198-DCN, 2015 WL 5474471, at *4, 6 (D.S.C. Sept. 16, 2015) (citations omitted). For these reasons, the instant Petition is subject to summary dismissal without prejudice.
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed without prejudice and without requiring the Respondent to file an answer or return.
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).