Opinion
Civil Action 6:21-620-CMC-KFM
09-13-2021
Basil I. Buie, Petitioner, v. Barry Wingfield[1], Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This matter is before the court on the respondent's motion to dismiss or, in the alternative, for summary judgment (doc. 12). 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.
I. FACTS PRESENTED
The petitioner is currently incarcerated by the Bureau of Prisons (“BOP”) at Federal Correctional Institution (“FCI”) Williamsburg, South Carolina (doc. 1 at 1). On June 28, 2019, the petitioner received an incident report at FCI Fort Dix, New Jersey, for violating Prohibited Act Code 108, Possession of a Hazardous Tool (doc. 12-2 at 1). The reporting officer stated as follows in the incident report:
On 06/28/2019 at approximately 2:30 am, I, Senior Officer De Jesus conducted a random round on the second floor of unit 5752 with Senior Officer Struble. While utilizing the YORKIE cell phone detector serial #181364; I received a positive signal
that a cell phone was being used in room 248. I utilized a flashlight through the window of room 248 and observed inmate Buie, Basil #69538-066 laying in his assigned bed quickly placing an item in a photo album by his feet and a SAMSUNG battery inside of the back of his boxers. I walked inside of room 248 and gave inmate Buie a direct order to get off of his bed and step outside of room 248. Inmate Buie complied and handed over a SAMSUNG battery from the back of his boxers. Senior Officer Struble located a gray SAMSUNG cell phone inside a photo album at the foot of inmate Buie's assigned bed 248 6L. Inmate Buie complied with no further incidents.(Id.). The petitioner received a copy of the incident report on June 28, 2019 (id.). The lieutenant tasked with conducting an investigation into the incident advised the petitioner of his rights on the same day (doc. 12-2 at 4). At that time, the petitioner declined to provide a statement (id.).
A Unit Discipline Committee (“UDC”) hearing was held on July 1, 2019 (doc. 12-2 at 1). During the hearing, the petitioner again declined to make a statement (id. at 1, 3). The incident was then forwarded to the Disciplinary Hearing Officer (“DHO”) for further processing (id. at 3). On July 1, 2019, the petitioner was given a notice of discipline hearing before the DHO (doc. 12-3 at 1). The petitioner indicated that he did not wish to have a staff representative or witnesses (id.). The petitioner was also provided a form advising him of his rights at the DHO hearing (doc. 12-4 at 1).
On August 14, 2019, a DHO hearing was held (doc. 12-5 at 1). The DHO reviewed the petitioner's rights with him, and the petitioner confirmed that he understood his rights (id. at 2). The petitioner stated that he had no documentary evidence to present (id.). Moreover, the petitioner waived his right to have a staff representative and his right to call witnesses (id. at 1). The petitioner was given an opportunity to make a statement at the DHO hearing, but he declined to comment (id.). The DHO found that the petitioner committed the prohibited act as charged (id.). The DHO set out the specific evidence relied upon, including the reporting officer's written report, the photograph of the cell phone, and the fact that the petitioner presented no evidence or statement to dispute the reporting officer's statement (id. at 1-2). The DHO sanctioned the petitioner to loss of 41 days good conduct time (“GCT”), a monetary fine of $250, and 365 days loss of commissary privileges (id. at 2). The DHO iterated the reason for the sanction as follows:
The action/behavior on the part of Possession of a Hazardous Tool (Cell Phone) significantly threatens the health, safety, and welfare of not only himself, but of all persons, whether another inmate or any other person, who are involved in the act. This will not be tolerated. Past evidence has shown that disruptive conduct has led to serious damage to the institution, as well as serious injury to staff and inmates involved and not involved in the disruptive conduct. The sanctions imposed by the DHO were taken to inform the inmate that he will be held responsible for his actions/behaviors at all times.(Id.). The petitioner's current release date, with consideration of GCT, is October 14, 2028 (doc. 12-1 at ¶ 3).
II. FEDERAL PETITION
On March 3, 2021, the petitioner filed a § 2241 petition alleging that his due process rights were violated because (1) he was not provided a copy of the DHO report in a timely fashion, and (2) there was insufficient evidence to find him guilty due to a mistaken identity (docs. 1 at 1; 1-1 at 1-4). The petitioner seeks to have his disciplinary record expunged, GCT restored, and $250 monetary fine reimbursed (doc. 1 at 7).
On June 10, 2021, the respondent filed a motion to dismiss or, in the alternative, for summary judgment (doc. 12). On June 11, 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. 13). After receiving one extension of time, the petitioner filed a response on August 10, 2021 (doc. 18).
III. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
The respondent has moved to dismiss the petition pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (doc. 12 a 7-8). Alternatively, the respondent has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. As matters outside the pleadings have been presented to and not excluded by the court (see docs. 1-2; 1-3; 12-1; 12-2; 12-3; 12-4; 12-5; 12-6), the motion to dismiss will be treated as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(d). 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).
In the Roseboro order issued on June 11, 2021, the petitioner was placed on notice that if the court considers materials outside of the pleadings, a motion to dismiss is converted to a motion for summary judgment under Rule 56 (doc. 13 at 1-2).
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 (doc. 12-5 at 2). 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).
1. DHO Report
First, the plaintiff argues that his due process rights were violated because he was not provided with a copy of the DHO report in a timely fashion (doc. 1-1 at 1-4). However, a review of the disciplinary record reveals that the plaintiff 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 a copy of the incident report on June 28, 2019, and the DHO hearing was held on August 14, 2019 (docs. 12-2 at 1; 12-5 at 1). Moreover, the petitioner signed the notice of discipline hearing form on July 1, 2019 (doc. 12-3 at 1). 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 (doc. 12-4 at 1). The petitioner waived his right to a staff representative and his right to call witnesses (docs. 12-3 at 1; 12-5 at 1). Additionally, the petitioner was provided an opportunity to make a statement on his own behalf at the DHO hearing, and he declined to comment (doc. 12-5 at 1). Further, as shown by the DHO report, it appears that the petitioner had a neutral and detached hearing. The DHO report indicated the basis for the DHO's finding that the petitioner committed the prohibited act, the evidence relied upon, the action taken by the DHO, and the reasons for the action (doc. 12-5 at 1-2).
The plaintiff received a copy of the DHO report on May 15, 2020, about nine months after the DHO hearing. BOP policy states that the DHO provides an inmate with a copy of the DHO report “ordinarily within 15 work days of the decision.” BOP Program Statement 5270.09 § 541.8(h) (available at https://www.bop.gov/PublicInfo/execute/policysearch?todo=query#). Although it is undisputed that the petitioner received the DHO report beyond this 15-day time period, such delay does not equate to a violation of the petitioner's due process rights. Bauer v. Warden FCI Williamsburg, C. A. No. 6:16-cv-304-RMG, 2017 WL 318683, at *2 (D.S.C. Jan. 23, 2017) (“[T]he BOP's violations of its own policies do not amount to a due process violation.”). Further, while it is well-settled that the petitioner has a due process right to receive a copy of the DHO report, this right does not extend to receiving the DHO report within 15 days. See Wolff, 418 U.S. at 563-76 (noting that due process requires a written statement setting out the decision and the reasons therefore); Reid v. Mansukhani, C. A. No. 5:16-cv-3280-RMG, 2017 WL 2378850, at *3 (D.S.C. June 1, 2017) (“Petitioner has no constitutional right to receive the DHO report within the 15-day period outlined in the BOP's regulations.”), aff'd, 697 Fed.Appx. 154 (4th Cir. 2017); Huang v. Mahsukhani, C. A. No. 4:16-1269-BHH, 2016 WL 6694530, at *3 (D.S.C. Nov. 15, 2016) (noting that the BOP's time limits are not mandatory and that “Wolff did not set any specific time limits for a prisoner to receive an administrative detention order or a written report”). Moreover, courts in this circuit have found that due process claims based on a failure to receive a DHO report are moot once the inmate has received the report. 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) (“[D]ue process claims based on a failure to receive the DHO report are moot once the inmate has received the report.”), R&R adopted by 2020 WL 7384731 (D.S.C. Dec. 16, 2020); Patterson v. Bolster, C. A. No. 3:18CV854-HEH, 2020 WL 520588, at *5-6 (E.D. Va. Jan. 31, 2020) (finding that petitioner's claim regarding a failure to receive his DHO reports was moot because, after filing his federal petition, he received the reports); Shahan v. Ormond, C. A. No. 3:18CV200-HEH, 2018 WL 6681210, at *4 (E.D. Va. Dec. 19, 2018) (concluding that an inmate's claim regarding his failure to receive the DHO report was moot because, after initiating the action, the inmate receive the DHO report), aff'd, 778 Fed.Appx. 217 (4th Cir. 2019).
The petitioner submits that the delay in receiving his DHO report impacted his ability to appeal because his regional appeal and central office appeal were denied as untimely (doc. 1-1 at 2). In support of this argument, the petitioner cites two cases in which courts in other district courts have noted that the BOP allowed the petitioners in those cases another chance to appeal after a delay in receiving their DHO reports (doc. 18 at 2 (citing Deroo v. Holinka, C. A. No. 09-cv-247-bbc, 2009 WL 3422785 (W.D. Wis. Oct. 22, 2009); Oladimu v. United States, C. A. No. 3:CV-11-1395, 2011 WL 5834937, at *5 (M.D. Pa. Oct. 24, 2011), R&R adopted by 2011 WL 5854665 (M.D. Pa. Nov. 21, 2011))). The petitioner also contends that BOP policy provides that inmates may extend the time allowed for appeals by submitting a staff memorandum indicating that there was a delay in receiving the DHO report, but that the staff at FCI Fort Dix would not provide him with such memorandum (doc. 1-1 at 2-3). However, the undersigned finds that the petitioner has failed to show that he was prejudiced by the delay in receiving the DHO report. 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). Despite the petitioner's appeals being denied as untimely, the petitioner has still had the opportunity to challenge his disciplinary action in this court. See, e.g., Lomas v. Vereen, C. A. No. 6:19-622-JMC-KFM, 2019 WL 8375933, at *5-6 (D.S.C. Oct. 17, 2019) (recommending granting summary judgment for respondent on petitioner's § 2241 petition despite a one-year delay in the petitioner receiving the DHO report, because the respondent did not argue that the petitioner failed to exhaust his administrative remedies and the petitioner was able to challenge the disciplinary action before the court), R&R adopted by 2020 WL 2447937 (D.S.C. Feb. 26, 2020); Calixto v. Masters, C. A. No. 1:15-cv-12778, 2016 WL 2600431, at *4 (S.D. W.Va. 2016) (noting that petitioner was not prejudiced by the delay in receiving his DHO report because, although his appeal was denied as untimely, petitioner was able to proceed with judicial review of the DHO's decision), R&R adopted by 2016 WL 2343890 (S.D. W.Va. May 3, 2016). Accordingly, the undersigned recommends that the district court find that the petitioner's due process rights were not violated by the delay in receiving the DHO report.
2. Sufficiency of the Evidence
Second, the plaintiff challenges the sufficiency of the evidence supporting the DHO's finding that he committed the prohibited act as charged (docs/ 1 at 6; 1-1 at 4). Specifically, the plaintiff contends that there was a “mistaken identity” and “‘no evidence' to justify the disciplinary actions” (id.).
As set out above, “revocation of good time does not comport with ‘the minimum requirements of procedural due process' unless the findings of the prison disciplinary board are supported by some evidence in the record.” Hill, 472 U.S. at 454 (quoting Wolff, 418 U.S. at 558). 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, “The 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, the undersigned finds that the DHO's decision is supported by some evidence in the record. As set out by the DHO, the reporting officer provided a statement indicating that he received a positive signal that a cell phone was being used in the petitioner's room (doc. 12-5 at 2). The reporting officer stated that he then utilized a flashlight through the window of the room and observed the petitioner laying on his bed and quickly placing an item in a photo album and another item inside of the back of his boxers (id.). The reporting officer stated that he then gave the petitioner a direct order to step outside of the room, and the petitioner handed over a cell phone battery from the back of his boxers (id.). Further, the reporting officer stated that another officer located a gray cell phone inside of the photo album on the petitioner's assigned bed (id.). The petitioner presented no evidence or statement to dispute the reporting officer's statement (id.). Based on the foregoing, the undersigned finds that there is “some evidence in the record” to support the DHO's finding. Accordingly, the undersigned recommends that the district court find that the petitioner received the due process safeguards outlined in Wolff.
IV. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the district court grant the respondent's motion for summary judgment (doc. 12).
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the next page.
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).