Opinion
C. A. 9:23-cv-01516-DCC-MHC
04-19-2024
Sandchase Cody, Petitioner, v. S. Janson, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Petitioner Sandchase Cody (“Petitioner”), a federal inmate currently incarcerated at Federal Correctional Institution (“FCI”) Edgefield, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. Respondent S. Janson (“Respondent”), the Warden of FCI Edgefield, filed a Motion to Dismiss or, in the alternative, a Motion for Summary Judgment (“Motion”). ECF No. 12. Petitioner filed a Response in Opposition, ECF No. 15, and the time for Respondent to file a Reply has now expired. The Motion is ripe for review.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), all pretrial proceedings in this matter have been assigned to the undersigned. Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends that Respondent's Motion be granted in part and denied in part.
I. BACKGROUND
Petitioner filed this action pursuant to 28 U.S.C. § 2241, challenging the disciplinary action taken against him at FCI Edgefield on May 30, 2022, which charged him with violation of Code 205, Engaging in Sexual Acts. ECF No. 1. Specifically, he asserts his due process rights were violated while he was going through the BOP's disciplinary process.
A. Overview of the BOP Inmate Disciplinary Process
The BOP has administrative and rulemaking authority over federal prisons pursuant to Congressional delegation. See 18 U.S.C. § 4001 et. seq. Among the BOP's statutory duties is to “provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States[.]” 18 U.S.C. § 4042(a)(3). The BOP's Inmate Discipline Program and its associated administrative appeal process are set out in the Code of Federal Regulations. See 28 C.F.R. §§ 541.1 et. seq., 542.10 et. seq.
When BOP staff have a reasonable belief that an inmate has violated the BOP disciplinary code, they prepare an incident report and provide a copy to the inmate, usually within twenty-four hours of the incident. 28 C.F.R. § 541.5(a). The incident report contains a written description of the charges against the inmate. Id. A staff member then investigates the incident and forwards all relevant information to the Unit Disciplinary Committee (“UDC”) for an initial hearing. 28 C.F.R. §§ 541.5(b), 541.7.
The UDC reviews any evidence presented at the hearing, either by prison staff or the inmate. The UDC can (1) find that the inmate committed the prohibited act as charged or a similar act if reflected in the incident report; (2) find that the inmate did not commit the prohibited act as charged; or (3) refer the incident report to the Discipline Hearing Officer (“DHO”) based on the severity of the charged acts. 28 C.F.R. § 541.7.
If the UDC refers the incident report to the DHO, the inmate is advised of his or her rights and provided an opportunity to designate a staff representative for assistance at the hearing. 28 C.F.R. § 541.8. Inmates may also provide the names of witnesses they wish to have called and what testimony they expect the witnesses to provide. 28 C.F.R. § 541.8(f). At the hearing, inmates are entitled to make statements and present documentary evidence on their own behalf. 28 C.F.R. § 541.8(e). The DHO considers all the evidence presented and determines whether the inmate committed the charged prohibited act. 28 C.F.R. § 541.8
The DHO then prepares a written report of his or her decision after the hearing. By regulation, the report need not be a verbatim record of the hearing but must include: (1) whether the inmate was advised of his or her rights during the DHO process; (2) the evidence the DHO relied on; (3) the DHO's determination; (4) the sanction imposed; and (5) the reasons for the sanction imposed. 28 C.F.R. § 541.8(h). Inmates are also advised of their right to appeal through the Administrative Remedy Program. 28 C.F.R. § 541.8(i). The Code of Federal Regulations does not specify a time limit for delivery of the DHO report to the inmate; rather, it states inmates will receive a copy “following the hearing.” 28 C.F.R. § 541.8(h).
B. Factual Background
Petitioner and Respondent submitted various materials to the Court, including affidavits, incident reports, and other documents related to the DHO hearing at issue. In addition, Petitioner submitted a verified Petition and Response, along with an affidavit from another inmate. See ECF No. 1 at 15; ECF No. 15 at 9; ECF No. 1-6.
A pro se litigant's verified submission must be considered as an affidavit and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge. See Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021) (“[A] verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge.”); see also Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991); Valindv. Wright, No. 05-C-0702, 2007 WL 9734863, at *5-6 (E.D. Wis. Jan. 30, 2007) (finding Plaintiff's verified response should be considered an affidavit for summary judgment purposes and rejecting Defendant's arguments to the contrary).
On May 30, 2022, an FCI Edgefield staff member wrote an incident report about Petitioner's violation of the Prohibited Act Code 205, Engaging in Sexual Acts. ECF No. 12-1 at 4. The reporting officer indicated in the incident report as follows:
While in route to conduct pill line in Bravo 2 I, Nurse Nott, saw an inmate standing in front of Bravo 1 (which was locked). I offered to let him in when I saw Inmate CODY, SANDCHASE, #51447-018 standing on the outdoor middle stairwell starring [sic] at me with his right hand down his pants. After I was leaving Bravo 1 Inmate Sandchase was still standing on the outdoor Bravo 3 middle stairwell but had moved to the side overlooking Bravo 1. Inmate Sandchase immediately pulled his left hand out of his pants but I, Nott, could see his erect penis through his gray sweatpants. I immediately gave a direct order to go to his unit for count, in which he immediately pulled up his pants and continued up the stairs. I notified Operations Lieutenant to review tape to confirm this was inmate Sandchase. After confirmed inmate was screened and escorted to SHU. End of Report.ECF No. 12-1 at 4.
Also on May 30, 2022, Petitioner received a copy of the incident report. ECF No. 12-1 at 4. A staff member advised Petitioner of his rights on the same day. ECF No. 12-1 at 6. At that time, Petitioner stated “the lady [is] lying.” ECF No. 12-1 at 6. A Lieutenant tasked with investigating the incident determined Petitioner was properly charged. ECF No. 12-1 at 6.
On June 3, 2022, a UDC hearing was held. ECF No. 12-1 at 5. During the UDC hearing, Petitioner stated, “[T]his is a false accusation. I would never do something that is so disrespectful.” ECF No. 12-1 at 5. The incident report was referred to the DHO for further processing. ECF No. 12-1 at 5.
Also on June 3, 2022, Petitioner was provided a “Notice of Discipline Hearing Before the DHO” form. ECF No. 12-1 at 8. Petitioner signed the form on the same day, requesting to have Recreation Supervisor Ellison (“Mr. Ellison”) as a Staff Representative. ECF No. 12-1 at 8. Additionally, Petitioner indicated on the form that he wanted to have witnesses; however, he did not list any names (instead, he put a question mark on the line where the name was supposed to be). ECF No. 12-1 at 8. Petitioner was also provided a form advising him of his rights at the DHO hearing, which he acknowledged with his signature on June 3, 2022. ECF No. 12-1 at 10. Mr. Ellison signed the Duties of Staff Representative form on June 28, 2022. ECF No. 12-1 at 12.
On June 28, 2022, a DHO hearing was held at FCI Edgefield. ECF No. 12-1 at 14. The DHO read and reviewed Petitioner's due process rights with Petitioner at the time of the hearing, and Petitioner stated that he understood his rights before the DHO. ECF No. 12-1 at 15. Petitioner requested that Mr. Ellison serve as his staff representative. ECF No. 12-1 at 14. Mr. Ellison appeared at the DHO hearing and assisted Petitioner throughout the hearing. ECF No. 12-1 at 14.
Mr. Ellison averred that he met with Petitioner before the hearing and discussed the incident. ECF No. 12-2. According to the DHO Report and Mr. Ellison's affidavit, Mr. Ellison reviewed the camera footage and stated he could not directly see Petitioner engaging in a sexual act, but he also said that the way Petitioner was moving did appear to show that Petitioner was engaging in a sexual act. ECF No. 12-1 at 14; ECF No. 12-2. Mr. Ellison further averred that Petitioner did not ask him to investigate the identity of any inmates who may have witnessed the incident. ECF No. 12-2.
According to Petitioner, Mr. Ellison failed to meet with Petitioner, failed to collect witness statements, and “stood mute” at the DHO hearing. ECF No. 1 at 13. Petitioner averred that the reason he did not identify witnesses on the Notice of Disciplinary Hearing form was because he did not know the name of the other inmate who was present at the incident. ECF No. 15 at 4. Petitioner submitted an affidavit from this inmate-now identified as Cheston Philpot-which Petitioner maintains “exonerates him.” ECF No. 15 at 5; ECF No. 1-6.
Although Petitioner had previously indicated he wished to have witnesses, he waived his right at the hearing. ECF No. 12-1 at 15. Petitioner denied the charge and was provided an opportunity to make a statement at the DHO hearing. At the hearing, Petitioner stated that the report was not true and that he “did not do that.” ECF No. 12-1 at 14. In addition to the incident report and investigation, the DHO indicated that he considered CCTV footage and the written account of the reporting staff. ECF No. 12-1 at 15.
The DHO found Petitioner committed the prohibited act as charged. ECF No. 12-1 at 15. The DHO set out the specific evidence relied upon. ECF No. 12-1 at 15-16. The DHO sanctioned Petitioner to the disallowance of 27 days of good conduct time, 30 days of disciplinary segregation, and 100 days loss of commissary privileges. ECF No. 12-1 at 16. The DHO explained the reason for the sanctions imposed. ECF No. 12-1 at 16. The DHO report was completed on July 1, 2022, and a copy was provided to Petitioner by a staff member on July 6, 2022. ECF No. 12-1 at 17; ECF No. 12-1 at 1.
Petitioner requests that this Court expunge the incident report from his record and restore his good conduct time credits. ECF No. 1 at 7. He also asks for an award of monetary damages for his “legal fees.” ECF No. 1 at 7.
II. LEGAL STANDARDS
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, 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 or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Habeas Corpus
Under established local procedure in this judicial district, a careful review has been made of this Petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
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). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attacking] the computation and execution of the sentence rather than the sentence itself.” United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (per curiam); see also Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations”). A § 2241 petition challenging the execution of a federal prisoner's sentence generally addresses “such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention[,] and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); see also Manigault v. Lamanna, No. 8:06-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.”). A § 2241 petition must be brought against the warden of the facility where the prisoner is being held, Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004), and “in the district of confinement rather than in the sentencing court,” Miller, 871 F.2d at 490. See also 28 U.S.C. § 2242.
III. DISCUSSION
Petitioner asserts his due process rights were violated when his good conduct time (“GCT”) was taken from him via the DHO hearing. It is well-established that a prisoner's GCT is a protected liberty interest under the Fifth Amendment. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Prisoners are therefore entitled to “those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the . . . right is not arbitrarily abrogated.” Id. Specifically, due process requires that a prisoner subject to a loss of GCT through disciplinary sanctions be afforded: (1) written notice of the disciplinary charges at least twenty-four hours in advance of the disciplinary hearing; (2) a neutral and detached hearing body; (3) the opportunity to call witnesses and present documentary evidence; (4) an opportunity for non-attorney representation if the inmate is illiterate or the disciplinary hearing is complex; and (5) a written statement provided by the fact finder(s) outlining the evidence relied upon and the reasons for the chosen course of disciplinary action. Id. at 563-67; see also Crawley v. Wilson, No. 2:11-cv-542, 2012 WL 2505118, at *4 (E.D. Va. May 16, 2012). In addition, the BOP's findings must be “supported by some evidence in the record.” Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).
At first glance, a review of the record appears to show the Wolff requirements were met. Petitioner received written notice of the charges at least twenty-four hours in advance of the DHO hearing, as Petitioner received a copy of the incident report on May 30, 2022, and the DHO hearing was held on June 28, 2022. ECF No. 12-1 at 4, 14. During the DHO hearing on June 28, 2022, Petitioner was provided the opportunity to make a statement on his own behalf, and he made a statement denying the charge. ECF No. 12-1 at 14. Although Petitioner had previously indicated that he wanted to have witnesses, he never identified any specific witnesses, and he waived his right to call witnesses at the hearing. ECF No. 12-1 at 8, 15. Petitioner requested Mr. Ellison to be his staff representative, and Mr. Ellison appeared before the DHO. ECF No. 12-1 at 8, 14. According to Mr. Ellison and the DHO report, Mr. Ellison appeared at the DHO hearing and assisted Petitioner throughout the hearing. ECF No. 12-1 at 14. Based on the evidence, the DHO found that the act was committed as charged. ECF No. 12-1 at 15-16. Documented in the DHO report is the specific evidence relied upon, the basis for the DHO's finding, the action taken by the DHO, and the reasons for the action. ECF No. 12-1 at 15-16. Additionally, although Petitioner claims otherwise, there is no indication that there was not a neutral and detached hearing body. See generally ECF No. 12-1 at 14-17; ECF No. 12-3.
Petitioner concedes that he received advanced written notice of the charges and that he received a written statement explaining the tribunal's findings (i.e., the first and fifth prongs of Wolf were met). ECF No. 1 at 11. Nevertheless, Petitioner asserts the other prongs were not met; specifically, he was not allowed to present documentary evidence, he was denied “meaningful” staff representation, and he was not subject to a neutral and detached DHO. See ECF No. 1.
For the reasons that follow, the undersigned finds that Petitioner has not shown his due process rights were violated with respect to his access to documentary evidence in the form of video evidence, his staff representation, or the DHO's alleged impartiality. However, there is a genuine dispute of material fact as to whether Petitioner was afforded his due process right to present documentary evidence in the form of witness testimony. The Court addresses each issue in turn.
A. Documentary evidence
Petitioner maintains that he was not allowed to present documentary evidence in two ways: (1) he was not allowed to see the video evidence; and (2) inmate witness testimony was not considered. The Court finds no merit to the first issue but finds a genuine dispute of material fact as to the second issue.
1. Video evidence
The Fourth Circuit recently established that inmates at risk of being deprived of a liberty interest-like GCT-have “a qualified right to obtain and compel consideration of video surveillance evidence” as documentary evidence under Wof. Lennear v. Wilson, 937 F.3d 257, 273-74 (4th Cir. 2019) (emphasis in original). However, the Fourth Circuit recognized that “an inmate's right of access to video surveillance evidence-like any other form of documentary evidence-must give way if the government establishes that providing the inmate with access to the evidence would be ‘unduly hazardous to institutional safety or correctional goals.'” Id. at 270 (quoting Wolff, 418 U.S. at 566). The court identified “four overarching principles” for analyzing whether prison officials violate an inmate's rights by denying access to surveillance footage:
[(1)] the government bears the burden of establishing a legitimate penological justification for refusing to provide access to or consider the evidence; [(2)] decisions as to whether to provide access to or consider the evidence must be made on an individualized basis; [(3)] a decision to deny access to or consideration of such evidence must be made by a disinterested official; and, [(4)] before categorically refusing to provide access to or consider such evidence, prison officials must assess whether any alternative avenues exist to allow access to or consideration of the evidence.Id. at 274.
Here, Petitioner argues that he was not allowed access to the video and suggests the DHO “did not see the video in question, either.” ECF No. 1 at 12. With regard to Petitioner not being allowed to view the video himself, the DHO explained that allowing Petitioner to view the video would have provided him the precise location of the camera, its field of view, and the image resolution. ECF No. 12-3 at 1. As an alternative, Mr. Ellison, Petitioner's staff representative, was allowed to watch the video prior to the hearing. ECF No. 12-2. Additionally, contrary to Petitioner's assertions, the DHO reviewed and considered the video in making his determination. ECF No. 12-3 at 1.
These facts comport with the Fourth Circuit's instructions under Lennear, as Petitioner was not allowed to view the video himself because of a legitimate penological justification. See Lennear, 937 F.3d at 268-70 (noting due process protections require consideration of video surveillance evidence pertaining to prisoner's disciplinary hearing upon request unless “unduly hazardous to institutional safety or correctional goals”). Furthermore, prison officials took an alternative avenue to allow Petitioner's staff representative to view the video, and the DHO reviewed and considered the video.
In support of these facts, Respondent has produced contemporaneous business records and affidavit testimony from participants in the DHO hearing process to support the argument that Petitioner was given all that is mandated under Lennear. Although Petitioner's verified Petition and Response are treated as affidavits capable of defeating a motion for summary judgment, that only goes toward allegations that are based on personal knowledge. See Goodman, 986 F.3d at 498 (“[A] verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge.”). Respondent's documentary proof and the affidavits of Mr. Ellison and the DHO prevent Petitioner from relying solely on the unsupported allegations in his verified Petition and Response. Consequently, Petitioner cannot create a genuine dispute of material fact as to whether Mr. Ellison and/or the DHO reviewed the video, as it amounts to a merely speculative allegation that is not based on any personal knowledge. See id.; see also Lytle v. Warden, FCI-Bennettsville, No. 5:16-CV-02277-TMC-KDW, 2018 WL 4560573, at *10 (D.S.C. Mar. 30, 2018) (“Petitioner's self- serving, conclusory statement in both his verified Petition and his affidavit fail to create a genuine issue of material fact as to his receipt of due process in the face of Respondent's contrary business records and supporting affidavits from the participants in the process.”), report and recommendation adopted, No. CV 5:16-2277-TMC, 2018 WL 4178448 (D.S.C. Aug. 31, 2018). Accordingly, the Court finds that Petitioner's due process rights were not violated in this regard.
2. Inmate witness testimony
Respondent argues that Petitioner waived his right to call witnesses. ECF No. 12 at 10. Respondent acknowledges that Petitioner had previously indicated that he wanted to have a witness, but Petitioner never identified any specific witness. ECF No. 12 at 10. Further, Respondent argues that prison officials were “not obligated to discover the identities of unknown exculpatory witnesses for Petitioner's disciplinary hearing.” ECF No. 12 at 10 n.2.
In support of Respondent's position are the affidavits of the DHO and Mr. Ellison. The DHO averred that if “Petitioner told [him] before the hearing that an unknown inmate had witnessed the event and that [Petitioner] wanted that inmate to serve as a witness, and if [the DHO] knew the identity of that inmate, [the DHO] would have sought a statement from that inmate” and he would have noted it in the DHO Report. ECF No. 12-3 at 1. The DHO further attested that if Petitioner “had insisted there was an unknown witness and that he would not proceed without that witness, I would not have indicated that [Petitioner] waived his right to call witnesses.” ECF No. 12-3 at 2. Mr. Ellison further averred that Petitioner did not ask him to investigate the identity of any inmates who may have witnessed the incident. ECF No. 12-2.
On the other hand, Petitioner argues he was denied the right to call witnesses. ECF No. 15 at 4. He acknowledges that in the Notice of Discipline Hearing Before the DHO form, there was only a “question mark” in the field where he was to include the name of the witness. See ECF No. 12-1 at 8. He explains in his Response that, at the time of the incident, he only knew the other inmate as “C.K.,” but he did know C.K.'s housing unit and the fact that they were both on video together at the time of the incident. ECF No. 15 at 4. Petitioner attests that he “passed this information verbally to Counselor Tolbert, [Mr.] Ellison, and DHO Nevils, but [he] was ignored” and no one tried to find and interview the potential witness. ECF No. 15 at 5.
However, Petitioner maintains that he “didn't fill out the form;” rather, a Counselor Tolbert did. ECF No. 15 at 5. He avers that he was only permitted to sign his name. Counselor Tolbert appears to be the staff member who advised Petitioner of his rights before the DHO. See ECF No. 12-1 at 8, 10, 14.
Additionally, in direct contradiction to Mr. Ellison's and the DHO's affidavits, Petitioner avers he “was never asked about witnesses at his DHO hearing, in contradiction to the statement of DHO Nevils.” ECF No. 15 at 3. Further, Petitioner “asked [Mr. Ellison] to view the video camera footage, and told him about the eyewitness.” ECF No. 15 at 2.
The sworn statements before the Court differ sharply on the issue of whether Petitioner was afforded his due process right to present documentary evidence in the form of witness testimony. See Goodman, 986 F.3d at 498 (“[A] verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge.”). Consequently, there is a genuine dispute of fact surrounding the circumstances of Petitioner's attempts to find, identify, and call the inmate witness that was on the surveillance footage. See Lennear, 937 F.3d at 275 (noting “when a prisoner who seeks a writ of habeas corpus provides competent evidence (such as an affidavit by someone with personal knowledge of the events) contradicting an assertion by the prison disciplinary board on a material question of fact pertinent to an issue of constitutional law, the district court must hold an evidentiary hearing to determine where the truth lies” (citation omitted)).
Nevertheless, Respondent argues that “some evidence” supported the DHO's decision, such that there was no due process violation. See ECF No. 12 at 11-12 (relying on Hill, 472 U.S. at 445). Respondent's argument fails for two reasons. First, the Fourth Circuit clearly explained in Lennear that the “some evidence” standard of Hill is inapplicable in the procedural due process context. See Lennear, 937 F.3d at 276-77. Rather, such a claim is reviewed for harmless error, and Hill's “some evidence” standard is irrelevant to that inquiry. See id.
Second, assuming Petitioner's version of events are true for purposes of a harmless error analysis, the undersigned is unable to conclude the error here was harmless. The determination of harmless error boils down to whether the testimony from C.K.-now identified as Cheston Philpot-could have aided Petitioner's defense. See id. at 277 (“[W]e hold that in evaluating whether prison officials' failure to disclose or consider evidence was harmless, courts must determine whether the excluded evidence could have aided the inmate's defense.”). On this point, Petitioner argues that the statement of Cheston Philpot was crucial to his defense because it “exonerates him.” ECF No. 15 at 5. In the affidavit Petitioner attached to his Petition, Mr. Philpot averred, in relevant part, that “I totally disagree with Nurse Nott's accusations because at no point upon Nurse Nott's arrival or approach did I witness [Petitioner] with either of his hands inside his pants.” ECF No. 1-6 at 2. Petitioner argues-and Respondent does not contest or argue otherwise-that this statement could have aided Petitioner's defense. See ECF No. 15 at 7-8. The Court agrees for two main reasons.
First, the DHO's decision was largely based on a credibility assessment. Here, the DHO determined Petitioner committed the prohibited act “[b]ased upon the staffs eyewitness account of the incident and the written report” of the incident. ECF No. 12-1 at 16. Although the DHO reviewed the video of the incident, the camera “could not directly see [Petitioner] engaging in a sexual act but [his] actions and movement suggest[ed] [he was] engaging in a sexual act.” ECF No. 12-1 at 16. Thus, the “DHO found the staff members statement and eye witness observations more credible and believable than that of [Petitioner's]” and further found no evidence indicating the staff member conspired to falsely accuse Petitioner of the misconduct. ECF No. 12-1 at 16.
However, Mr. Philpot's eyewitness testimony directly contradicts Nurse Nott's testimony, such that it could have aided Petitioner's defense. See Cook v. Shinn, No. CV-21-00538-PHX-ROS, 2022 WL 4591815, at *10 (D. Ariz. Sept. 30, 2022) (“Statements directly contradicting the factual premise for the disciplinary charge undoubtedly would have ‘aided' Petitioner's defense.” (citing Lennear, 937 F.3d at 277)). Indeed, the DHO specifically made a credibility determination as to the Nurse Nott's eyewitness observation, and further noted that Petitioner did not produce any evidence indicating that the staff member falsely accused Petitioner. Mr. Philpot's eyewitness testimony serves as both evidence contradicting the Nurse Nott's version of events and calls into question Nurse Nott's credibility. Thus, Petitioner has shown-and Respondent has not contested-that this testimony could have aided Petitioner's defense. Cf. Allen v. Mitchell, 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 procedural due process claim based on his disciplinary proceeding), affd, 841 Fed.Appx. 605 (4th Cir. 2021).
Second, this is not a situation where video evidence clearly shows Petitioner was guilty. Rather, as noted by the DHO, the video evidence did not clearly show Petitioner engaging in the act; instead, it only “suggested” he was. Cf. Ali v. Streeval, No. 7:22CV00200, 2023 WL 1822878, at *5 (W.D. Va. Feb. 7, 2023) (finding harmless error where “no reasonable jury could conclude that the testimony of Inmate A would have ‘aided' Ali's [defense] or caused the DHO to reach a different conclusion” because the DHO reviewed video evidence of the incident and reasoned it “showed that Ali was actively engaged in the physical altercation, which meets the elements of offense for Fighting”). Thus, although the DHO relied, in part, on the video evidence in coming to his decision, that video evidence was not determinative. Rather, the DHO's decision was largely based on a credibility assessment of Nurse Nott. See ECF No. 12-1 at 16. Because Mr. Philpot's eyewitness testimony could have served as both evidence contradicting Nurse Nott's version of events and called into question Nurse Nott's credibility, the undersigned finds that Mr. Philpot's testimony could have aided Petitioner's defense. Consequently, assuming Petitioner's version of events are true, for purposes of this analysis at the summary judgment stage only, the undersigned cannot conclude this error was harmless.
Under these circumstances, a genuine issue of material fact precludes granting Respondent's Motion for Summary Judgment on this issue. See Lennear, 937 F.3d at 275 (noting “when a prisoner who seeks a writ of habeas corpus provides competent evidence (such as an affidavit by someone with personal knowledge of the events) contradicting an assertion by the prison disciplinary board on a material question of fact pertinent to an issue of constitutional law, the district court must hold an evidentiary hearing to determine where the truth lies” (citation omitted)).
B. Staff representative
Petitioner maintains his due process rights were violated because he was denied “meaningful” staff representation. ECF No. 1 at 7. Petitioner alleges his staff representative, Mr. Ellison, failed to meet with Petitioner, failed to collect witness statements, and stood mute at the DHO hearing. ECF No. 1 at 13. Petitioner argues this violated the duties of a staff representative, which are outlined in the BOP's “Duties of Staff Representatives” that prison officials use when representing an inmate during the disciplinary hearing process. See ECF No. 1-8 at 1.
In contrast, Mr. Ellison averred that he met with Petitioner before the hearing and discussed the incident. ECF No. 12-2. According to the DHO Report and Mr. Ellison's affidavit, Mr. Ellison reviewed the camera footage and stated he could not directly see Petitioner engaging in a sexual act, but he also said that the way Petitioner was moving did appear to show that Petitioner was engaging in a sexual act. ECF No. 12-1 at 14; ECF No. 12-2. Mr. Ellison further averred that Petitioner did not ask him to investigate the identity of any inmates who may have witnessed the incident. ECF No. 12-2.
Under Woff, an inmate has a constitutional right to seek the aid of a fellow inmate or a staff member to assist in the prison disciplinary process when the inmate is illiterate or where “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.” Woff, 418 U.S. at 570. However, “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Id. at 556.
Here, Petitioner has failed to show a due process violation for three reasons. First, Petitioner does not allege he is illiterate, nor does he assert that the disciplinary charge against him was so complex that he needed a staff member to help him comprehend the case. Thus, due process did not require Petitioner to be afforded assistance at ajj. See, e.g., Ajjee v. Streevaj, No. 7:21-CV-00594, 2022 WL 3969945, at *9 (W.D. Va. Aug. 30, 2022) (“Here, Allee does not claim to be illiterate. Nor does he assert that the disciplinary charge against him was so complex that he required the appointment of a staff representative. Therefore, the faijure to appoint[] a staff representative did not deprive Allee of due process.” (emphasis added)); Jones v. Bojster, No. 1:19CV479 (LO/MSN), 2020 WL 809375, at *4 (E.D. Va. Feb. 14, 2020) (“But due process requires a lay advocate, like a staff assistant, only if the inmate is illiterate 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.'” (emphasis added) (quoting Wolf, 418 U.S. at 570)).
Second, Petitioner bases his argument on the assertion that Mr. Ellison violated BOP policies and procedures, pointing to the BOP's “Duties of Staff Representatives” that prison officials use when representing an inmate during the disciplinary hearing process. See ECF No. 18 at 1. However, the violation of BOP policies does not support a due process violation. See Bauer v. Warden FCI Williamsburg, 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.”); Thus, to the extent Petitioner argues his due process rights were violated because Mr. Ellison failed to adhere to the BOP's “Duties of Staff Representatives,” Plaintiff has not shown a due process violation.
Third, Petitioner does not argue that he was denied a staff representative; rather, he complains that the staff representative-who he chose-was ineffective in defending him. Petitioner is not entitled to constitutionally effective assistance in a prison disciplinary proceeding. See Woff, 418 U.S. at 556 (“Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.”); Brown v. Braxton, 373 F.3d 501, 504-05 (4th Cir. 2004) (noting, pursuant to Wof, “inmates are not entitled to confront the witnesses against them, nor are they guaranteed the right to retained or appointed counsel”); Richardson v. Williams, No. 3:14-CV-129, 2015 WL 3937004, at *5 (N.D. W.Va. June 26, 2015) (“It is well-established that ‘inmates do not have a right to counsel in prison disciplinary proceedings.'” (citation omitted)), aff'd, 627 Fed.Appx. 279 (4th Cir. 2016). Thus, even taking all of Petitioner's complaints about Mr. Ellison as true, Petitioner has not demonstrated his procedural due process rights under Wolf were violated. See Richardson, No. 3:14-CV-129, 2015 WL 3937004, at *5 (“McAdams' alleged deficiencies as a staff representative did not amount to a violation of the Petitioner's due process rights, because the Petitioner had no constitutional right to counsel during his disciplinary proceeding.”), aff'd, 627 Fed.Appx. 279; Payne v. Craig, No. 5:08-CV-00989, 2011 WL 4021320, at *4 (S.D. W.Va. Sept. 9, 2011) (“Finally, with respect to Petitioner's contention that his staff representative was ineffective, the Court finds that Petitioner's due process rights were not violated by the quality of his representation since he does not have a constitutional right to assistance of counsel during the disciplinary processes.”). Accordingly, the undersigned finds that Petitioner's due process rights were not violated in this regard.
The undersigned emphasizes that Petitioner has not shown a due process violation with respect to Mr. Ellison's representation of Petitioner during the DHO process. However, as noted above, whether Petitioner was denied his due process right to present documentary evidence in the form of witness testimony is materially in dispute. Any questions of fact as to Mr. Ellison's involvement with the procurement of witness testimony go to that due process question, not whether Mr. Ellison's representation was constitutionally defective.
C. Unfair tribunal
Petitioner argues he was given an unfair tribunal, alleging the DHO was not neutral and detached. Generally, Petitioner points to all of the alleged errors previously discussed as evidence of this unfairness. See ECF No. 1 at 14; ECF No. 15 at 7-9. He maintains, among other things, that no independent official reviewed video of the alleged sex act, that he was denied access to documentary evidence, and that his guilt was presupposed. ECF No. 1 at 14. Petitioner has not shown that the DHO was impartial.
An inmate has a right to an impartial decision-maker in disciplinary proceedings. See Wof, 418 U.S. at 571. “[D]ue process is satisfied as long as no member of the disciplinary board has been involved in the investigation or prosecution of the particular case, or has had any other form of personal involvement in the case.” Id. at 592 (Marshall, J., concurring). “While ‘a fair trial in a fair tribunal is a basic requirement of due process,' not all claims of bias rise to a constitutional level.” Rowsey v. Lee, 327 F.3d 335, 341 (4th Cir. 2003) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). “In order to prevail in a deprivation of due process claim, a defendant must show a level of bias that made ‘fair judgment impossible.'” Id. (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). “[B]ecause honesty and integrity are presumed on the part of a tribunal, there must be some substantial countervailing reason to conclude that a decisionmaker is actually biased with respect to factual issues being adjudicated.” Gwinn v. Awmiller, 354 F.3d 1211, 1220 (10th Cir. 2004) (citation and internal quotation marks omitted). Furthermore, “[d]ue process is violated only when the risk of unfairness is intolerably high under the circumstances of a particular case.” Id. (citation and internal quotation marks omitted).
Here, as an initial matter, Petitioner has not shown, or alleged, that the DHO was involved in the investigation, prosecution, or had any other form of personal involvement in the case. See Wolff, 418 U.S. at 592 (Marshall, J., concurring) (“Due process is satisfied as long as no member of the disciplinary board has been involved in the investigation or prosecution of the particular case, or had any other form of personal involvement in the case.”). Additionally, Plaintiff has not pointed to any irregularities or any countervailing substantial reasons that would give the Court a basis to conclude the risk of unfairness was so high that it violated due process. See Dunne v. Olson, 67 Fed.Appx. 939, 944 (7th Cir. 2003) (“[N]or has [the petitioner] pointed to any irregularities in the process to rebut the presumption that hearing officers act in good faith.”); see also DePaola v. Clarke, No. 7:17-CV-00028, 2019 WL 1370882, at *6 (W.D. Va. Mar. 26, 2019) (dismissing a petitioner's claim that the DHO displayed impartiality prior to a hearing where the claim was undermined by a record revealing a fair hearing).
Plaintiff has not shown that the DHO was so insufficiently impartial or was biased so as to present “a hazard of arbitrary decisionmaking.” See Wof 418 U.S. at 571. Petitioner's bald allegation that he was given an unfair tribunal does not raise a genuine dispute of material fact.Accordingly, on this record, Plaintiff has not demonstrated that the DHO in this instance was unconstitutionally biased against him. See Allen v. Young, No. 5:18-CV-01463, 2020 WL 2477939, at *14 (S.D. W.Va. Mar. 2, 2020) (noting “Disciplinary hearing officers are ‘entitled to a presumption of honesty and integrity,' and ‘the constitutional standard for impermissible bias is high.'” (citation omitted)), report and recommendation adopted, No. 5:18-CV-01463, 2020 WL 2475902 (S.D. W.Va. May 13, 2020), aff'd, 827 Fed.Appx. 354 (4th Cir. 2020). Thus, the Court finds that Petitioner's due process rights were not violated in this regard.
Nor has Petitioner shown a due process violation by virtue of the unsupported allegation that the DHO did not review the video evidence. See Lennear, 937 F.3d at 274 (noting inmates have a qualified procedural due process right to compel official consideration of video surveillance evidence). Indeed, to the contrary, the DHO stated in his report that the “CCTV footage” was documentary evidence that he relied on. ECF No. 12-1 at 15. Further, though the DHO does not specifically recall this incident, he averred that anytime he includes in his DHO Report that CCTV footage was relied on, that always means he personally reviewed the footage. See ECF No. 12-3 at 1. As noted above, Petitioner cannot create a genuine dispute of material fact as to whether the DHO reviewed the video, as it amounts to a merely speculative allegation that is not based on any personal knowledge. See Lytle, No. 5:16-CV-02277-TMC-KDW, 2018 WL 4560573, at *10 (“Petitioner's self-serving, conclusory statement in both his verified Petition and his affidavit fail to create a genuine issue of material fact as to his receipt of due process in the face of Respondent's contrary business records and supporting affidavits from the participants in the process.”), report and recommendation adopted, No. CV 5:16-2277-TMC, 2018 WL 4178448.
In sum, the undersigned agrees with Respondent that Petitioner has not shown his due process rights were violated with respect to his access to video evidence, his staff representation, or the DHO's alleged impartiality. However, there is a genuine dispute of material fact as to whether Petitioner was afforded his due process right to present documentary evidence in the form of witness testimony. Because the undersigned cannot resolve this factual question at this juncture, the undersigned recommends this matter be set for an evidentiary hearing. See Lennear, 937 F.3d at 275 (noting “when a prisoner who seeks a writ of habeas corpus provides competent evidence (such as an affidavit by someone with personal knowledge of the events) contradicting an assertion by the prison disciplinary board on a material question of fact pertinent to an issue of constitutional law, the district court must hold an evidentiary hearing to determine where the truth lies” (citation omitted)); see also Ali v. Hooks, No. 1:19CV481, 2020 WL 473626, at *9 (M.D. N.C. Jan. 29, 2020) (finding genuine disputes of material fact existed surrounding a DHO disciplinary proceeding and recommending the Respondent's Motion for Summary Judgement be denied and an evidentiary hearing on the matter be conducted), report and recommendation adopted, No. 1:19CV481, 2020 WL 2572359 (M.D. N.C. May 21, 2020).
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion (ECF No. 12) be GRANTED in part and DENIED in part. Specifically, Respondent's Motion should be granted with respect to the issues of Petitioner's access to video evidence, his staff representation, and the DHO's alleged impartiality.
However, as noted above, there is a genuine dispute of material fact as to whether Petitioner was afforded his due process right to present documentary evidence in the form of witness testimony. Thus, it is RECOMMENDED that Respondent's Motion for Summary Judgment be denied on that issue and that this matter be set for an evidentiary hearing, with counsel appointed for Petitioner pursuant to Rule 8(c) of the Rules Governing Section 2254 Cases.
The parties are 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
Post Office Box 835
Charleston, South Carolina 29402
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).