Opinion
C/A 4:23-2473-HMH-TER
07-28-2023
James C. Whaley, #1001117, a/k/a James C. Whaley, #357132, Petitioner, v. Nick Gallam, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Petitioner, proceeding pro se, brings this action as a state pretrial detainee requesting habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. The Petition is subject to summary dismissal.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings. The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). 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 currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
Furthermore, 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 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition should be summarily dismissed.
The Rules Governing Section 2254 Cases are also applicable to Section 2241 cases. See Rule 1(b) of Rules Governing Section 2254 Cases.
DISCUSSION
Petitioner has filed what is referred to as a local § 2241 Petition. A § 2241 Petition can be for a person who is in “state custody because of something other than a judgment of conviction (for example you are in pretrial detention).” Instructions for Filing a § 2241 Petition. Pretrial petitions for writ of habeas corpus are properly brought under § 2241 because that section “applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him.” United States v. Tootle, 65 F.3d 381, 383 (4th Cir. 1995). Petitioner is a pretrial detainee awaiting adjudication of his civil commitment proceedings. (ECF No. 1). Petitioner's request for relief is the expungement of two disciplinary judgments received at the county detention center. (ECF No. 1 at 5). Petitioner is not serving a sentence so any disciplinary adjudications do not operate to extend his stay. Petitioner also requests declaratory relief “that rule violation A-10 is overly broad, vague, ambiguous, and therefore unconstitutional.” (ECF No. 1 at 5). The gist of the first disciplinary charge is that Petitioner accessed the kiosk account of a different inmate. Petitioner alleges it was with permission because the other inmate had more funds but was not able to leave his cell to use them. (ECF No. 1). Petitioner alleges he bought himself over the counter cream and bought the other inmate some food with consent of the other inmate. Nonetheless, the detention center found it was against their rules. Petitioner was sentenced to 30 days disciplinary detention, a change in classification. (ECF No. 1). The second disciplinary charge was for using a different inmate's account for which Petitioner alleges he was at recreation at the time of the transaction and would not have been able to have used the other inmate's account. (ECF No. 1). Petitioner received another 30 days disciplinary detention, a change in classification/location.
In a 2017 District of South Carolina case, a detainee in a county detention center awaiting civil commitment proceedings under SVPA was found to have a custody status most resembling that of other pretrial detainees. Tyler v. Byrd, No. 4:16-cv-0400-MGL-BM, 2017 WL 875859, at *2 (D.S.C. Feb. 14, 2017), report and recommendation adopted, 2017 WL 839535 (D.S.C. Mar. 3, 2017), aff'd, 693 Fed.Appx. 247 (4th Cir. 2017)(collecting cases and analyzing claims under the due process clause of the Fourteenth Amendment).
Liberally construed, Petitioner is contesting how the two disciplinary proceedings were conducted by the detention center, alleging he was denied due process. (ECF No. 1). Constitutional due process rights are only at issue when one is deprived of a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974); Lennear v. Wilson, 937 F.3d 257, 268 (4th Cir. 2019). Petitioner's classification and cell confinement changed. This is not a protected liberty interest. Hewitt v. Helms, 459 U.S. 460, 468 (1983) (no constitutional right under the Due Process Clause to a particular security classification or prison placement). An inmate does not have a constitutional right to be confined in a particular location. See Olim v. Wakinekona, 461 U.S. 238, (1983); Meachum v. Fano, 427 U.S. 215 (1976).
Petitioner also mentions free speech and access to the court; however, Plaintiff's allegations regarding using another's account and resulting classification change do not factually relate to free speech or access to the court.
Thirty to sixty days in disciplinary confinement does not involve the kind of significant or atypical hardship necessary to invoke due process rights. See Jones v. Ozmint, 2011 WL 1671557, at *4 (D.S.C. Mar. 17, 2011), report and recommendation adopted, 2011 WL 1671565 (D.S.C. May 3, 2011), aff'd, 449 Fed.Appx. 281 (4th Cir. 2011); Sandin v. Conner, 515 U.S. 472 (1995). One of the factors in considering “atypical and significant hardship” is if the classification assignment was for an indefinite period or had collateral consequences on any sentence; neither is occurring here. Scott v. Ray, No. 4:17-3100-RBH-TER, 2019 WL 575960, at *3 (D.S.C. Jan. 24, 2019), report and recommendation adopted, 2019 WL 569565 (D.S.C. Feb. 12, 2019)(applying test to pretrial detainee and noting there are no collateral consequences on a sentence where only a detainee). Petitioner has not stated an actionable claim for habeas relief.
Further, to the extent Petitioner alleges the change in classification resulted in loss of canteen access, canteen access is also not a protected liberty interest. Bennett v. Cannon, C/A No. 2:05-2634-GR, 2006 WL 2345983, at *2 (D.S.C. Aug. 10, 2006); Starling v. Stirling, No. CV 4:15-3636-TLW-TER, 2016 WL 4697357, at *6 (D.S.C. Aug. 2, 2016), report and recommendation adopted, 2016 WL 4613396 (D.S.C. Sept. 6, 2016); see, e.g., Madison v. Parker, 104 F.3d 765, 768 (5th Cir.1997) (holding that commissary restrictions did not entitle inmate to due process protections during disciplinary proceeding); Moore v. Ozmint, No. CIV.A. 3:10-3041-RBH, 2012 WL 762460, at *10 (D.S.C. Feb. 16, 2012), report and recommendation adopted, 2012 WL 762439 (D.S.C. Mar. 6, 2012).
As discussed above, Petitioner has failed to state an actionable claim for habeas relief and his Petition should be dismissed.
RECOMMENDATION
Accordingly, it is recommended that the Petition be dismissed without prejudice and without requiring the respondent to file a return.
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The petitioner is advised that he may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge 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 & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005).
Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) & (e). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in the waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).