Opinion
Civil Action 6:21-2282-HMH-KFM
11-16-2021
Difankh Asar, Petitioner, v. N. Barnes, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This matter is before the court on the petitioner's motion for summary judgment (doc. 10) and the respondent's motion for summary judgment (doc. 11). The petitioner, a federal prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district court.
The petitioner labeled a document attached to his petition as both a "memorandum of law in support of writ of habeas corpus" and as a motion for summary judgment (doc. 1-1). The undersigned has considered the petitioner's arguments presented in that document and the arguments he presented in his motion for summary judgment, which the petitioner captioned as a "motion to amend motion for summary judgment in favor for petitioner" (doc. 10).
I. PROCEDURAL HISTORY
The petitioner is currently incarcerated by the Bureau of Prisons ("BOP") at Federal Correctional Institution ("FCI") Bennettsville, South Carolina (doc. 1 at 1). On December 14, 2019, a reporting employee completed an incident report regarding the petitioner for violating Prohibited Act Code 104, Possession of a Weapon (doc. 11-2 at 2). The reporting officer stated as follows in the incident report:
On December 14, 2019 at approximately 11:25 pm while assigned as the C-3 Unit Officer and conducting a search cell #221, solely occupied by inmate Asar, Difankh, Reg. No.20694-171, I discovered two homemade weapons, hidden in a false compartment of the wall, concealed with caulking, at the base of the outer wall of the cell where the wall meets the floor. The first homemade weapon was blue toothbrush, sharpened to a point, approximately 7 inches in length, with a white cloth utilized as a handle. The second homemade weapon was a red toothbrush, sharpened to a point, approximately 5 inches in length, with a white cloth utilized as a handle. The Operations Lieutenant was then notified of the incident. (Id.). The petitioner received a copy of the incident report on December 15, 2019 (id.). A lieutenant investigating the incident advised the petitioner of his rights on the same day (id. at 3). At that time, the petitioner was observed to have a poor attitude and stated, "They're (weapons) not mine. I don't know anything about those" (id.).
A Unit Discipline Committee ("UDC") hearing was held on December 16, 2019 (doc. 11-2 at 2). During the hearing, the petitioner stated, "I just moved into cell checked pad [and] locker but . . . am I required to check inside a wall?" (id.). The incident was then forwarded to a Disciplinary Hearing Officer ("DHO") for further processing (id.). On December 16, 2019, the petitioner was given a notice of discipline hearing before the DHO (id. at 7). The petitioner indicated that he wished to have a staff representative, but he did not wish to have witnesses (id.). The petitioner was also provided a form advising him of his rights at the DHO hearing (id. at 8).
A DHO hearing was held on January 3, 2021 (doc. 11-2 at 9). The DHO reviewed the petitioner's rights with him, and the petitioner confirmed that he understood his rights (id. at 9-10). The petitioner stated that he had no documentary evidence to present (id. at 10). Moreover, the petitioner waived his right to witnesses (id. at 9-10). The petitioner requested a staff representative, and Unit Manager M. Frazier appeared at the hearing (id. at 9). Additionally, the petitioner was given an opportunity to make a statement, and he stated, "Am I supposed to shake down my room before I move in" (id.). The DHO found that the petitioner committed the prohibited act as charged (id.). The DHO set out the specific evidence relied upon, including color photographs of the weapons and the written account from the reporting officer (id. at 10). The DHO also provided as follows:
The DHO considered your statements and defense, some facts, and the evidence presented. The DHO concludes; You were found to be in possession of two homemade weapons fashioned from tooth brushes that were sharpened at one end with a handle on the other. There are photographs of the weapons. You did not provide the DHO with any substantive evidence to support that you were not in possession of a weapon. Possessing a weapon is prohibited and will not be tolerated.(Id.). The DHO sanctioned the petitioner to loss of 41 days good conduct time ("GCT"), 30 days of disciplinary segregation, six months loss of commissary privileges, and six months loss of phone privileges (id.). The DHO iterated the reason for the sanctions as follows:
The action/behavior on the part of any inmate to possess a weapon can lead to serious injury to both parties, as well as staff. Having an item such as this has the potential to escalate a situation into a major confrontation between inmates and staff, thereby threatening the security and orderly running of the institution and makes it difficult to provide security for all concerned. The sanctions imposed by the DHO were taken to express that you will be held responsible for your actions/behavior at all times.
The disallowance of good conduct time was imposed to comply with the mandatory sentencing guidelines for PLRA inmates. Being placed in segregation was imposed as punishment for the act. The loss of commissary privilege was imposed to express the seriousness of the act. The loss of phone privileges was imposed to express the seriousness of the act.(Id.). The DHO report was completed on February 7, 2020, and the petitioner was provided a copy on the same day (id. at 10-11). The petitioner's current release date, with consideration of GCT, is July 14, 2023 (doc. 11-2, Carter decl. at 3).
II. FEDERAL PETITION
On July 26, 2021, the petitioner filed a § 2241 petition alleging that his right to appeal his disciplinary hearing was denied, his remedy process was not honored, the regional office did not meet their response date of March 15, 2020, and did not return his BP-10 appeal, and the central office did not meet their response date of June 7, 2021 (doc. 1 at 6). The petitioner seeks to have his disciplinary record expunged and his GCT restored (id. at 7). As noted above, the petitioner also filed an attachment to his petition, labeled a motion for summary judgment (doc. 1-1). Further, on August 26, 2021, the petitioner filed a motion to amend his motion for summary judgment (doc. 10 at 1-3).
On September 9, 2021, the respondent filed a motion for summary judgment and response to the petitioner's petition and motion for summary judgment (doc. 11). On September 10, 2021, by order filed pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately (doc. 15). The petitioner filed a document indicating that he received the Roseboro order but had not received the respondent's motion. The respondent's certificate of service indicated that the motion was mailed to the petitioner on September 13, 2021 (doc. 12). However, out of an abundance of caution, the undersigned directed the Clerk of Court to mail the petitioner a copy of the respondent's motion for summary judgment and attachments and extended the deadline for the petitioner to respond until October 26, 2021 (doc. 20). On October 1, 2021, the petitioner filed a response (doc. 24). The respondent filed a reply on October 7, 2021 (doc. 26). These matters are now ripe for review.
III. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
The petitioner and the respondent have both moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Rule 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id.
B. Due Process
As set out above, the DHO imposed sanctions on the petitioner that included loss of GCT. A prisoner has due process rights regarding his GCT credits, which implicate a protected liberty interest. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). In disciplinary proceedings that may result in the loss of GCT credit, an inmate has a right to advance written notice of charges at least 24 hours before the hearing; to a fair and impartial tribunal; to call witnesses and to present documentary evidence in his defense; to receive a written statement explaining the tribunal's findings; and, “[w]here an illiterate inmate is involved. . . or . . . the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, ” to seek the aid of a fellow inmate or prison staff. Id. at 563-70. In addition, a disciplinary decision implicating a prisoner's liberty interest must be supported by at least “some evidence.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454-55 (1985).
A review of the disciplinary record reveals that the petitioner received all of the due process safeguards afforded to him by Wolff. The petitioner received written notice of the charges at least 24 hours in advance of the DHO hearing. Specifically, the petitioner received written notice of the charge on December 15, 2019, and the DHO hearing was held on January 3, 2021 (doc. 11-2 at 2, 9). The petitioner was advised of his rights, including his right to a staff representative, his right to present and call witnesses, his right to make statements in his defense, and his right to appeal the decision of the DHO (id. at 3, 8-10). The petitioner selected a staff representative who participated in the hearing, and he waived his right to call witnesses (id. at 7, 9-10). Moreover, the petitioner made statements in his defense (id. at 2, 9). Further, as shown by the DHO report, it appears that the petitioner had a neutral and detached hearing. The DHO report indicates the basis for the DHO's finding that the petitioner committed the Prohibited Act Code 104, Possession of a Weapon, the evidence relied upon, the action taken by the DHO, and the reasons for the action (id. at 10). Further, the petitioner was given a written record of the DHO report (id. at 11).
The petitioner challenges his ability to present documentary evidence, arguing that the staff representative did not include certain pieces of evidence he requested (doc. 10 at 3). Specifically, the petitioner contends that the staff representative did not present evidence that the petitioner's cell was left open and unsecured for three hours before the reporting officer found the weapons in his cell, as he had been placed in the special housing unit (“SHU”) at that time for refusing a breathalyzer test (docs. 1 at 2; 10 at 3).
The Court of Appeals for the Fourth Circuit has explained that the procedural requirements set forth in Wolff are subject to harmless error analysis, which requires that the court determine whether allegedly excluded evidence could have “aided the inmate's defense.” Lennear v. Wilson, 937 F.3d 257, 276-77 (4th Cir. 2019). Applying that standard here, the undersigned finds that evidence of the plaintiff's absence from his cell prior to the weapons being found would not have aided his defense. As an initial matter, the petitioner does not identify the source of this evidence, such as if it was testimonial or documentary in nature. Moreover, the petitioner fails to explain or argue in any way how this evidence would have aided his defense, and thus, he has not stated a claim of a procedural due process violation. See, e.g., Allen v. Mitchell, C/A No. 5:16-CT-3113-FL, 2020 WL 1443456, at *5 (E.D. N.C. Mar. 19, 2020) (granting the defendants' motion for summary judgment when the plaintiff did not explain who he would have called as a witness or how the testimony would have aided his defense and therefore failed to state a due process claim based on his disciplinary proceeding); Jones v. Bolster, C/A No. 1:19-cv-479-LO-MSN, 2020 WL 809375, at *4 (E.D. Va. Feb. 14, 2020) (noting that a petitioner failed to explain how six various pieces of evidence would have aided his defense and thus, the petitioner did not meet his burden at the summary judgment stage and the court could not conclude that he was harmed by the due process error). To the extent that the petitioner is insinuating that the weapons were somehow planted during this three-hour window, he has not explicitly made this argument or presented any evidence of weapons being planted. In addition, the petitioner could have raised this argument at his DHO hearing, but he did not do so. Therefore, the undersigned finds that any evidence of the petitioner's brief absence from his cell prior to the weapons being found would not have aided his defense, and thus, the staff representative's failure to present this evidence is harmless error.
The petitioner further argues that he asked the staff representative to speak with Officer Hammond and other facility personnel, but she did not do so (doc. 24 at 5-6). As an initial matter, the petitioner raised this issue for the first time in his response to the respondent's motion for summary judgment, and therefore, the claim is not appropriately before the court. See White v. Roche Biomedical Labs., Inc., 807 F.Supp. 1212, 1216 (D.S.C.1992) (noting that “a party is generally not permitted to raise a new claim in response to a motion for summary judgment”); Miles v. Owen, C/A No. 4:12-998-MGL, 2013 WL 227766, at *2 (D.S.C. Jan. 22, 2013) (applying Roche in a § 2241 habeas corpus action). Nevertheless, in light of the petitioner's pro se status, the undersigned will consider this claim. The petitioner submits that Officer Hammond would have been able to verify that the hidden compartment was in the cell prior to the petitioner's arrival and that the facility sealed it with caulk and that other facility personnel would have been able to provide information that the petitioner did not have access to caulk (doc. 24 at 5). As set out above, the petitioner had the opportunity to call witnesses, but he waived his right to do so on multiple occasions (doc. 11-2 at 7, 9-10). Moreover, the petitioner again has failed to argue how this speculative evidence would have aided his defense, and thus, he has failed to meet his burden at the summary judgment stage. See, e.g., Allen, 2020 WL 1443456, at *5; Jones, 2020 WL 809375, at *4. Further, the undersigned finds that this evidence would not have aided the petitioner's defense and the staff representative's failure to present it is therefore harmless error. Further, the petitioner could have raised this argument at the DHO hearing, but he did not do so. This conclusory, after-the-fact allegation is insufficient to show a genuine issue of material fact at this stage of the litigation. See Chesnut v. Lue, C/A No. 7:19-cv-00430, 2020 WL 201056, at *3-4 (W.D. Va. Jan. 13, 2020) (denying a petitioner's claim of a procedural due process violation based on excluded evidence and noting that “many of his assertions are flatly contradicted by the record of the disciplinary hearing and other documents, and his after-the-fact statements to the contrary do not suffice to create a genuine dispute of material fact so as to survive summary judgment.”). Therefore, the undersigned finds that the staff representative's failure to present this evidence was harmless and the petitioner received all of the procedural safeguards set forth in Wolff.
The undersigned also finds that the DHO's decision is supported by “some evidence in the record, ” as required by Hill. 472 U.S. at 454. The Supreme Court of the United States has explained, “This standard is met if ‘there was some evidence from which the conclusions of the administrative tribunal could be deduced. . . .” Id. at 455 (quoting United States ex rel. Vajtauer v. Comm'r of Immigration, 273 U.S. 103, 106 (1927)). Ascertaining whether the standard has been satisfied, “does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56. Explaining the standard further, the Court provided, “[t]he Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board. Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing.” Id. at 457. Hill instructs that a reviewing court does not make an independent assessment of the credibility of the witnesses or weigh the evidence. Id. at 455-56.
Here, an officer reported finding two homemade weapons hidden in a false compartment in a cell, and the plaintiff was the sole occupant of that cell (doc. 11-2 at 2). Attached to the officer's incident report were two photographs of the weapons, as well as a chain of custody log (id. at 3-6). Prison records reflect that the petitioner had been housed in that cell for approximately one month when the weapons were discovered (docs. 11-2, Carter decl. at ¶ 4; 11-2 at 12). At the DHO hearing, the petitioner stated, “Am I supposed to shake down my room before I move in” (doc. 11-2 at 9). However, he also stated that he had no documentary evidence to present and did not request any witnesses (id. at 10). The DHO indicated that he considered the photographs, the reporting officer's statement in the incident report, the petitioner's statements and defense, and the fact that the petitioner did not provide him with any substantive evidence to support that he was not in possession of a weapon to ultimately conclude that the greater weight of the evidence supported finding that the petitioner committed the prohibited act (id.). Therefore, based on the same reasons as those set forth by the DHO, the undersigned finds that the DHO's finding was supported by some evidence in the record. Based on the foregoing, the undersigned finds that the petitioner has failed to show a genuine issue of material fact on his due process claims and recommends that the district court enter summary judgment for the respondent on these claims.
C. Administrative Exhaustion
The petitioner also argues that his right to appeal was denied because the regional and central offices failed to follow their own procedure, which interfered with his ability to properly exhaust (docs. 1 at 6; 1-1 at 2-3; 10 at 1-3). Specifically, the petitioner claims that the regional and central offices did not respond to his appeals by their deadline, the regional office did not return his BP-10 appeal to him, the regional and central offices did not respond to his BP-11 appeal, and the central office kept documentation and evidence from him (id.). Despite this, the petitioner claims that he followed all of the required steps in an attempt to properly exhaust (doc. 10 at 2).
First, the petitioner appears to be attempting to defend against an affirmative defense of failure to exhaust. The petitioner also appears to contend that he should not be responsible for failing to exhaust, as the court is obligated to ensure that any defects in the administrative exhaustion were not procured from the action or inaction of prison officials (doc. 24 at 3 (citing Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006))). However, the respondent has not pursued this affirmative defense and specifically noted that the petitioner properly exhausted his administrative remedies (doc. 11-1 at 2, 8).
Second, as to the petitioner's argument that he was prevented from effectively appealing his disciplinary conviction, he has failed to show that he was prejudiced by any of the regional or central offices' actions. See Brown v. Braxton, 373 F.3d 501, 508 (4th Cir. 2004) (stating that even if a prison official's actions create a potential due process violation, a habeas petitioner must demonstrate that he was harmed by the violation in order to obtain relief) (citations omitted). The petitioner was able to appeal to the regional and central offices, and both offices upheld his disciplinary conviction (docs. 11-2, Carter decl. at 4; 11-2 at 15). Additionally, the petitioner has had the opportunity to challenge his disciplinary action in this court. See, e.g., Bivins v. Warden, FCI Edgefield, C/A No. 6:20-1065-SAL-KFM, 2020 WL 7389154, at *4 (D.S.C. Oct. 26, 2020), R&R adopted by 2020 WL 7384731 (D.S.C. Dec. 16, 2020) (finding that a petitioner's argument that he was prevented from effectively appealing due to the BOP's failure to provide him with his DHO report within the time frame set forth in the BOP's policy was without merit because the petitioner was not prejudiced and still able to challenge his disciplinary conviction in federal court); Calixto v. Masters, Case No. 1:15-cv-12778, 2016 WL 2600431, at *4 (S.D. W.Va. 2016) (same). Consequently, the petitioner's argument is without merit and any error by the regional or central offices is harmless.
Third, the petitioner appears to argue that he is entitled to expungement of his record and restoration of his GCT because the regional and central offices did not follow their procedure. However, "the BOP's violations of its own policies do not amount to a due process violation." Bauer v. Warden FCI Williamsburg, C. A. No. 6:16-cv-304-RMG, 2017 WL 318683, at *2 (D.S.C. Jan. 23, 2017). Moreover, Wolff does not hold that due process requires the opportunity to appeal disciplinary decisions. See Wolff, 418 U.S. at 563-70; Morales Mancia v. Elam, C/A No. 7:19-cv-00625, 2021 WL 4164686, at *5 n.4 (W.D. Va. Sept. 13, 2021) ("Because Wolff did not recognize a due process right for an appeal from a disciplinary action, I need not consider this additional evidence [submitted by the petitioner], because its effect, or lack thereof, on the outcome of the appeal proceedings did not implicate any constitutionally protected right."); Porter v. Warden of FCI Edgefield, C/A No. 9:20-cv-02002-DCC-MHC, 2020 WL 8271604, at *5 (D.S.C. Oct. 27, 2020) (noting that "a prisoner has no federal due process rights in the appeal process" and" Wolff does not mandate that prison officials provide inmates an opportunity to appeal disciplinary hearing findings" (D.S.C. Oct. 27, 2020), R&R adopted by 2021 WL 274309 (D.S.C. Jan. 27, 2021) (citations omitted). Further, as explained above, the petitioner was afforded the due process safeguards set forth in Wolff. Consequently, the undersigned recommends that the district court grant summary judgment in favor of the respondent on the petitioner's procedure and exhaustion claims.
IV. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the court recommends that the district court deny the petitioner's motion for summary judgment (doc. 10)and grant the respondent's motion for summary judgment (doc. 11).
As noted above, liberally construing the petitioner's pro se filings, the undersigned has considered both of the petitioner's summary judgment filings (docs. 1-1; 10) in conjunction as a motion for summary judgment.
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).