Opinion
C/A 4:23-4623-TMC-TER
04-10-2024
BURUDI FAISON, Petitioner, v. WARDEN, F.C.I. WILLIAMSBURG, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
The Petitioner, Burudi Faison, (“Petitioner/Faison”), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on September 13, 2023. On December 7, 2023, the Respondent filed a motion to dismiss or, in the alternative, a motion for summary judgment. (ECF No. 16). The undersigned issued an order filed December 8, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences if he failed to respond adequately. (ECF No. 17). On January 8, 2024, Petitioner filed a response. (ECF No. 19).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
STANDARD FOR SUMMARY JUDGMENT
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
ARGUMENTS
Petitioner is currently incarcerated at the Federal Correctional Institution Williamsburg (FCI Williamsburg) in Salters, South Carolina. Petitioner filed his petition pursuant to 28 U.S.C. § 2241, challenging a hearing before a disciplinary hearing officer (“DHO”) at FCI Talladega, Alabama, which resulted in a loss of forty-one days good conduct time, thirty days of disciplinary segregation, and sixty days loss of commissary privileges and telephone privileges. (ECF No. 1 at 5).
In his petition, Petitioner asserts the following:
Ground One: Petitioner was denied his substantive due process rights to be free from arbitrary and capricious government action that infringes on his liberty interest.
Supporting Facts: Inmate was sold through commissary a MP-3 player that contains a S.D. memory card. Inmate took apart a previously purchased but broken MP-3 player and the S.D. memory card from that player was found in his property and was alleged to be a hazard tool for being removed from the MP-3. No BOP rule exist making such action a violation of institutional rules.
Ground Two: The DHO's finding was not based on the at least some evidence standard, pointing to the guilt of the act alleged to have been violated to support the DHO's conclusions.
Supporting Facts: In the DHO report the fact finder stated her decision was based on the reporting officers report, adding that she was convinced that inmate committed the prohibited act of possessing a cell phone, further-stating that she found inmate guilty of possessing and having knowledge of a cell phone inside a correctional environment. The incident report did not mention a cell phone and did state that inmates possession of the S.D. card was a violation of institutional rules.(ECF No. 1-2 at 6)(quoted verbatim).
Petitioner requests that the court “declare that possession of an item purchased from the institution cannot be a hazard tool anytime staff arbitrarily declares it so unless dictated by some predetermined rule; and order that plaintiff's guilty finding from 12/21/2023 be expunged and his good time credit reinstituted.” (Id. at 7).
Respondent asserts that there was “some evidence” to support the decision of the DHO. Respondent sets forth that the Petitioner was written up in an incident report at FCI Talladega by a staff member for violating Prohibited Act Code 108/199, Disruptive Conduct-Greatest, Most Like 108, Possessing a Hazardous Tool. The reporting officer indicated in the incident report as follows:
Code 108 prohibits the “Possession, manufacture, introduction, or loss of a hazardous tool (tools most likely to be used in an escape or escape attempt or to serve as weapons capable of doing serious bodily harm to others; or those hazardous to institutional security or personal safety; e.g., hack-saw blade, body armor, maps, handmade rope, or other escape paraphernalia, portable telephone, pager, or other electronic device).” 28 C.F.R. § 541.3.
On December 16, 2022, while assigned as the Gamma-A unit officer, while inventorying Inmate Faison, Burdui, #35075-037 property one micro sd card was located in inmate Faison property. The black sd card was concealed in a clear baggy inside of a medication container. The sd card looks to have been tampered or altered by being removed from a sealed mp3 player. The Activities Lt. and compound was notified with no further issue.(ECF No. 16-1 at 4).
Petitioner filed a reply arguing that the “fact finders conclusions were based on facts that the writer of the incident report never alleged, making the finding arbitrary and capricious.” (ECF No. 19 at 2). Petitioner asserts that the S.D. card was “not alleged to have been hazardous for any reason other than it was tampered with or altered by being removed from the sealed MP-3 player.” (Id.). Petitioner argues that the BOP sells the mp3 player but its “possession is hazardous only after its removal from the original case. The question is how.” (Id. at 3).
DISCUSSION
In his petition, Faison challenges his disciplinary conviction which resulted in the loss of earned good time credits. Specifically, Petitioner argues that he was denied his substantive due process rights as the DHO's finding was not based on the some evidence standard. (ECF No. 1 at 2). Petitioner asserts that the mp3 player he purchased through the commissary contained a S.D. memory card. He states “Inmate took apart a previously purchased but broken MP-3 player and the S.D. memory card from that player was found in his property and was alleged to be a hazard tool for being removed from the MP-3. No BOP rule exists making such action a violation of institutional rules.” (ECF No. 1-2 at 6).
A hearing was conducted at FCI Talladega on December 21, 2022. Petitioner was read his due process rights and they were reviewed with him. (ECF No. 16-1 at 14-15). Petitioner stated that he understood his rights before the DHO. Petitioner requested Trust Fund Supervisor Hardy as staff representative. (Id.). Mr. Hardy appeared before the DHO and stated “I don't know what Hazelton sells. MP3 players were being sold with S.D. cards here at TDG.” (Id. at 14). Petitioner waived his right to have any witnesses at the hearing. Petitioner was aware he was charged with a Code 108 violation but denied the charge and was provided an opportunity to make a statement at the DHO hearing and made the statement “I'm not guilty of this charge. The card was sold in commissary.” (Id.).
Any claim of actual innocence is not a basis for federal habeas corpus relief in the prison disciplinary context. See Regassa v. Warden of FCI Williamsburg, No. 822CV00466SALJDA, 2022 WL 19404462, at *5 (D.S.C. Sept. 7, 2022), report and recommendation adopted, No. 8:22-CV-466-SAL, 2023 WL 2386515 (D.S.C. Mar. 7, 2023)
The DHO considered the Officer's incident report, the investigation, and the statement by the Staff representative in making the decision. (ECF No. 16-1 at 15-16). The DHO found Petitioner committed the prohibited act as charged and set out the specific evidence relied upon. The DHO sanctioned Petitioner to the disallowance of 41 days of good conduct time, 30 days of disciplinary segregation, 60 days loss of commissary privileges, and 60 days loss of telephone privileges. (Id. at 16). The DHO explained the reason for the sanctions imposed and the DHO report was completed on March 3, 2023. (Id. at 17).
The Supreme Court held that inmates are entitled to limited due process rights in prison disciplinary proceedings to the extent that a protected liberty interest is affected. Inmates have a protected liberty interest in the accumulation of good time credits. See Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Therefore, in prison disciplinary proceedings where a prisoner faces the possible loss of good conduct credits, he is entitled to certain due process protections. Id. In Wolff, the United States Supreme Court held that where a disciplinary hearing affects a liberty interest, inmates must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; (3) a written statement by the fact finders of the evidence relied on and the reasons for the disciplinary action; and (4) a fair and impartial tribunal. Wolff, 418 U.S. at 563-67. Petitioner does not allege that he was denied any of the procedural safeguards required by Wolff. However, even if Petitioner raised an argument pursuant to Wolfe, it would fail. Petitioner received a copy of the incident report on December 16, 2022, and was fully aware he was charged with a violation of Code 108 for removing the S.D. card from the sealed mp-3 player and hiding it in a prescription bottle. (ECF No. 16-1 at 4). A staff member advised Petitioner of his rights that same day. Petitioner made no statement at that time. A Lieutenant tasked with investigating the incident determined Petitioner was properly charged. (Id. at 5). A UDC committee hearing was held on December 18, 2022, during which Petitioner did not make a statement. The incident report was forwarded to the DHO for further processing. (Id. at 6). Petitioner was provided a “Notice of Discipline Hearing Before the DHO” form on December 18, 2022. (Id. at 8). Petitioner signed the form on the same day, indicating that he wished to have Trust Fund Supervisor Hardy as a Staff Representative but did not wish to call any witnesses. (Id.). Further, Petitioner was provided a form advising him of his rights at the DHO hearing, which he acknowledged with his signature on December 18, 2022. (Id. at 10). Mr. Hardy signed the Duties of Staff Representative form on December 19, 2022. (Id. at 12). A hearing was conducted at FCI Talladega on December 21, 2022. After considering the evidence, the DHO found Petitioner committed the prohibited act as charged and set out the specific evidence relied upon. Therefore, Petitioner received all the process he was due pursuant to Wolfe.
Petitioner argues that there was insufficient evidence to support the finding of the DHO. As previously discussed, in Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. at 455, the Supreme Court set out the constitutional evidentiary standard to be used when courts review prison discipline decisions. The Hill court held that due process is satisfied if there is “some” evidence to show that the inmate committed the offense. Id. at 455. The Court declined to adopt a more stringent evidentiary standard stating that “Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact.” Id. at 456.
To “comport with the minimum requirements of procedural due process,” a prison disciplinary decision leading to the loss of good time credits must be “supported by some evidence in the record.” Superintendent, Massachusetts Correction Institution v. Hill, supra. As the Fourth Circuit recently found, “[t]his is an exceedingly lenient standard, requiring only ‘a modicum of evidence' in order ‘to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens.'” Serrano v. Warden FCI Bennettsville, No. 22-7315, 2024 WL 1366552, at *2 (4th Cir. Apr. 1,2024) (unpublished)(quoting Hill, 472 U.S. at 455)(internal citations omitted).
Here, while Petitioner disagrees with the DHO's findings, there was “some evidence” to support the decision. Superintendent, Massachusetts Correction Institution v. Hill, supra. See also Johnson v. Wolfe, 2022 WL 1641280 at *1 (4th Cir. May 24, 2022), cert. denied, 143 S.Ct. 838, 215 L.Ed.2d 82 (2023). The hearing officer considered the Officer's written report, the statement of the staff representative, took the statement made by Petitioner into consideration, and noted that Petitioner did not want to call any witnesses and did not present any documentary evidence. (ECF No. 16-1 at 15-16). As such, the record before the court reflects that substantive due process was satisfied because there is “some evidence” to support the disciplinary hearing officer's finding thereby satisfying the standard in Superintendent, Mass. Corr. Inst., Walpole v. Hill, supra. Federal courts do not review the correctness of a disciplinary hearing officer's findings of fact. See Mahammend v. Green, 2023 WL 8777805, at *3 (D. Md. Dec. 19, 2023). The findings will only be disturbed when unsupported by any evidence, or when wholly arbitrary and capricious. See Hill, 472 U.S. at 456; Tyler v. Hooks, 945 F.3d 159, 171-72 (4th Cir. 2019). “Ascertaining whether this standard is 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.” Hill at 455-56 (citations omitted). “Judicial review of prison disciplinary actions is therefore limited solely to a determination as to whether there is evidence in the record to support the DHO's decision.” Kerr v. Rogers, 2016 WL 5109544, at * 4 (D.S.C. Sept. 12, 2016), report and recommendation adopted by 2016 WL 5076074 (D.S.C. Sept. 20, 2016) (citations omitted). Accordingly, Petitioner's claim that he was denied due process is without merit and should be dismissed.
As to any claim Petitioner may be attempting to raise that Code 108 is unconstitutionally vague, it fails. A federal court may consider whether a prison regulation is unconstitutionally vague. A prison rule must provide “fair notice of what conduct is prohibited before a sanction can be imposed.” Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (holding that a law violates due process if it “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits”). In Mathews v. Warden, 630 F.Supp.3d 755, 762 (W.D. Va. 2022), dismissed sub nom. Mathews v. Warden, USP Lee, No. 22-7193, 2023 WL 2965602 (4th Cir. Mar. 7, 2023), the court held that:
However, “the law requires less in the way of notice” on inmates who are subject to prison rules, and “places a greater burden on the individual to make inquiry or ask permission before acting” while in custody. Meyers v. Alldredge, 492 F.2d 296, 310-11 (3d Cir. 1974). “Because it is nearly impossible for prison authorities to anticipate, through a narrowly drawn regulation, every conceivable form of misconduct which threatens prison security, [the court] has reject[ed] the view that the degree of specificity required of [prison] regulations is as strict in every instance as that required of ordinary criminal sanctions.” Patel v. Zenk, 447 Fed.Appx. 337, 340 (3d Cir. 2011) (internal quotes omitted). Other courts have previously found that Code 108 and its non-exclusive list of prohibited devices does not violate due process.Matthews at 762, n.9.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 16) be GRANTED and this claim dismissed.
The parties' attention is directed to the important notice on the next page.