Opinion
Civil Action 6:22-2177-DCC-KFM
12-12-2022
Jose A. Irizarry-Corchado, Petitioner, v. Warden Janson, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the respondent's motion for summary judgment (doc. 16). The petitioner, a federal prisoner proceeding pro se and in forma pauperis, 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. BACKGROUND AND FACTUAL ALLEGATIONS
On April 4, 2019, while incarcerated at Federal Correctional Institution Estill ("FCI Estill"), the petitioner received an incident report for allegedly violating Prohibited Act Code 111a, Attempted Drug Introduction, and Code 196, Use of Mail to Further Criminal Activity (doc. 16-2 at 3). In the incident report, which is redacted to remove individuals' names, nicknames, phone numbers, and addresses, the reporting officer stated as follows:
On Thursday, April 04, 2019, at approximately 12:00 p.m., it was determined that inmate Irizarry-Corchado, Jose #21824-069, did attempt to introduce Suboxone (narcotics) into FCI Estill. On Thursday, March 14, 2019, at approximately 4:00 a.m., staff intercepted several stamped letters that were leaving the institution with an inmate who was to be released. The letters appeared to be suspicious because they were from several different people with apparent different handwritings. Two of the letters were in Spanish and needed to be translated. After review of the translated letters it was determined that
Irizarry-Corchado sent both letters. The first letter was addressed to a [C.Z.] and the return address was [address redacted], which is the address to [M.R.] (AKA [I.]). [M.R.] also known as [I.] is listed on Irizarry-Corchado['s] inmate contact list as his spouse, she is also his codefendant on his case (instant offense) and she was a former federal inmate. The letter was to be mailed to her and she would give it to [C.Z.]. The letter starts with To: [C.Z.] From: Che (Irizarry-Corchado['s] nick name). In the letter Irizarry-Corchado tells [C.Z.], that he needs him to get him some "N8" (Suboxone) for him so he can make some money. Irizarry-Corchado also writes that he has the money and can get it from [M.R.]. Irizarry-Corchado also makes mention of buying a cell phone but it is expensive, if he had one he could make lots of money. The second letter is to [F.], who is also one of Irizarry-Corchado['s] codefendants on his instant offense, by the name of [J.R.] (also a former inmate). Irizarry-Corchado is telling [F.] in code that he needs to get some drugs and that he has $500 to spend. Irizarry-Corchado give[s] the phone number [number redacted], and writes [I.]. The number is listed to [M.R.]. Irizarry-Corchado signs the letter "Chewy." which is another one of Irizarry-Corchado['s] nick names. It should also be noted that Irizarry-Corchado is on the SIS required monitoring list and all of his correspondences must be monitored. In order to further criminal activity and circumvent the mail monitoring procedures, Irizarry-Corchado sent the letters out by another inmate who was to mail them upon release. Both letters make mention for neither party to worry because the letters were not sent from inside the prison. He was put on this list because he attempted to introduce narcotics Suboxone in January of 2017.(Id.).
The incident report reflects that Lieutenant B. Talley delivered the report to the petitioner on April 4, 2019, and advised the petitioner of his rights on the same day (id. at 3, 5). The incident report further reflects that the petitioner stated that he understood his rights and made the following statement:
I don't know anything about the letters. I don't know who the inmate is. I don't know if someone is trying to get back at me, I have sent a[]lot of people to the SHU because I'm the shot caller for my car. Anyone could get my name and number and send out letters to set me up. I don't know how they would get my wife's address, because she used to live in Jersey but now lives in Massachusetts.(Id. at 5).
A Unit Discipline Committee ("UDC") hearing was held on April 9, 2019 (doc. 16-2 at 4). During the UDC hearing, the petitioner stated, "It's not me. Somebody trying to set me up. Anybody could have done this. There is no label in the label mail machine. Anybody could've take my label" (id. at 3). The incident was ultimately forwarded to the Disciplinary Hearing Officer ("DHO") for further processing (id.). On April 9, 2019, the petitioner received and signed a "Notice of Disciplinary Hearing Before the (DHO)" form (doc. 16-2 at 11). The form reflects that the petitioner wished to have a staff representative, "CMC Mrs. Brown," but did not wish to call any witnesses (id.). The petitioner was also given a form advising him of his rights at the DHO hearing, which he acknowledged with his signature on April 9, 2019 (id. at 12).
The DHO hearing was held on April 17, 2019 (doc. 16-2 at 13-17). The DHO report reflects that the DHO reviewed the petitioner's rights with him, and the petitioner stated that he understood his rights (doc. 16-2 at 13). The petitioner provided a copy of his "current phone list to document the number listed in the report was not on [his] current phone list" (id.). Moreover, Ms. Brown appeared as the petitioner's staff representative and "stated she only wanted to make sure the phone number in the report was on his list before" (id.). The DHO report further reflects that the petitioner waived his right to witnesses (id.). The petitioner was given an opportunity to make a statement, and he stated as follows:
I am not guilty. That is my address. I can't lie on that. She moved February 20 to that address. The label machine was out of paper in recreation, so when they added more paper, the labels printed. Someone else was able to get my address. Those letters don't have my name and number on them. I don't know the guy who released and had them. I knew [name redacted] in 2006, but I have not talked to him, because he told on me. My wife and I write, but I didn't send that letter. The phone number is not on my list. I am not lying to you. You can see my contacts, the number is not there.(Id.).
The DHO found that the greater weight of the evidence supported finding that the petitioner committed the prohibited acts (doc. 16-2 at 14-17). The DHO set out the specific evidence relied upon, including the reporting's officer's statement, as well as the following:
N8 Pill Images- used to show N8 stood for Suboxone Letter to [name redacted] you Spanish/English version used to show letters found as reported.
Letter to [name redacted] Spanish/English version used to show letters found as reported.
PreSentence Investigation Report for IRIZARRY-CORCHADO to show nick-names and codefendants
TRUVIEW Report for IRIZARRY-CORCHADO to show [name redacted] is listed as your spouse
TRUVIEW Report for [name redacted] to show the number was on your phone list in the past
Inmate Names- was used to verify your nicknames are: Chewy, Che, Chewy F., and Chewy Flamboyan
Inmate Discipline Record for IRIZARRY-CORCHADO 21824-069 used to determine you attempted to introduce Suboxone into a federal prison in September 2016.(Id. at 14). As discussed below, the DHO also explained the reasons for the decision in detail (id. at 14-16). For violation of Prohibited Act Code 111a, the DHO sanctioned the petitioner to 41 days disallowance of good conduct time ("GCT"), 100 days forfeiture of non-GCT, 30 days of disciplinary segregation, one year loss of commissary, one year loss of visitation privileges, another year loss of visitation privileges with the exception of immediate family, and a monetary fine of $12 (id. at 16). For violation of Prohibited Act Code 196, the DHO sanctioned the petitioner to 41 days disallowance of GCT, 28 days forfeiture of non-GCT, 30 days of disciplinary segregation, and six months loss of phone privileges (id.).
The DHO iterated the reason for the sanction as follows:
The action/behavior on the part of any inmate to use/possess / introduce drugs or alcohol threatens not only the health, safety and welfare of himself, but that of all other inmates and staff within the institution. The mere presence of drugs/alcohol in a correctional facility creates an environment conduc[ive] to
violence. In the past, inmates under the influence of drugs/alcohol have become violent towards others, which cannot and will not be tolerated. The sanctions imposed by the DHO were taken to let the inmate know that he, and he alone, will be held responsible for his actions/behavior at all times.
By using the telephone/mail for an illegal purpose or to commit another Greatest Severity prohibited act, you not only disrupted the security and orderly operation of the institution, but demonstrated the inability to use the mail/telephone in a highly responsible manner as well. When used properly as intended by the Bureau of Prisons, telephones/mail allows inmates the opportunity to maintain relationships with family and the community.
Disallowance of Good Conduct Time and forfeiture of Non Vested Good Conduct Time was sanctioned because of the severity of the offense and to deter this activity in the future. It is apparent your conduct reflects poor institution adjustment and does not warrant the same consideration for good conduct time as those inmates following the rules and regulations of the Bureau of Prisons. This is also a mandatory sanction for your sentencing guidelines.
The sanction for disciplinary segregation was imposed due to the severity of your offense. It is apparent that your adjustment in the population has been poor up to this point. Hopefully, this sanction will influence your future decisions to commit an offense such as this. The time you spent in the special housing unit prior to the DHO decision was considered when determining the actual amount of time in disciplinary segregation.
The sanctions for loss of telephone and commissary privileges were imposed due to your poor institutional adjustment and behavior. Privileges are meant for those inmates who follow rules and regulations and do not present a management problem for staff or pose a threat to the security of the institution, self, or others. This sanction has been imposed to correct the present inappropriate behavior and deter future behavior of this type. The DHO hopes that the sanctions will motivate you toward more self-discipline in the future.
The sanction imposed involving the loss of visiting privilege[s] was taken to enforce the standard of inmates being held responsible for their actions. It is believed, and past evidence has supported, that drug contraband is introduced into the inmate population through the inmate visiting room. The DHO
found that drugs and other contraband are not given to inmates through authorized channels, and, therefore, must be introduced from outside elements such as inmate visitors.
The sanction for monetary fine was imposed to punish the offender financially, since he has displayed a continued disrespect for the rules and regulations. In the past, less sever[e] deterrents, such as loss of privileges, has failed to correct his behavior. Limiting the amount of money offenders has to spend, is hoped to deter future misconduct.(Doc. 16-2 at 16-17). The petitioner's current release date, with consideration of GCT, is January 5, 2032 (doc. 16-2, Carter decl. ¶ 3).
II. PROCEDURAL BACKGROUND
On December 6, 2021, the petitioner filed a complaint against an "unknown disciplinary officer" and an "unknown regional reviewer" regarding the disciplinary conviction at issue here, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Irizarry-Corchado v. Unknown Disciplinary Officer, C/A No. 6:21-cv-3937 (D.S.C.) ("Irizarry-Corchado I"). The petitioner alleged that his due process rights were violated during the disciplinary proceedings because he was not provided a translator and the defendants were not following the Bureau of Prison's ("BOP") policy (Irizarry-Corchado I, doc. 8 at 4). The undersigned filed a report and recommendation on January 27, 2022, recommending that the plaintiff's complaint be summarily dismissed without prejudice, which the district court adopted on May 2, 2022 (Irizarry-Corchado I, docs. 13, 16).
In Bivens, the Supreme Court of the United States established a cause of action against federal officials for the violation of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving Section 1983 claims is applicable in Bivens actions and vice versa. Id. See also Osabutey v. Welch, 857 F.2d 220, 221-23 (4th Cir. 1988).
See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record."); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'").
On July 8, 2022, the petitioner filed the instant Section 2241 petition, alleging that his due process rights were violated because (1) he was denied an opportunity to view all of the evidence used against him at his DHO hearing, (2) he was found guilty without any evidence, (3) he does not speak English and was denied an interpreter to inform him of what was happening during the DHO hearing, (4) he was denied the opportunity to have a handwriting specialist compare his handwriting to the handwriting in the letters in question, and (5) he did not receive proper or timely responses to his administrative remedy filings (doc. 1 at 6-7). The petitioner seeks to have his disciplinary record expunged or a rehearing on the incident report with a Spanish interpreter (id. at 7).
On October 7, 2022, the respondent filed a motion for summary judgment (doc. 16). On the same date, 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. 17). The petitioner filed a response on November 2, 2022 (doc. 19). On November 9, 2022, the respondent filed a reply (doc. 21), and on December 2, 2022, the petitioner filed a sur-reply (doc. 22). Accordingly, this matter is now ripe for review.
III. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 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. Administrative Exhaustion
The respondent argues that the petitioner has not properly exhausted his administrative remedies (doc. 16-1 at 10-13). Although Section 2241 does not contain a statutory exhaustion requirement, the Court of Appeals for the Fourth Circuit follows the well-established rule that a federal prisoner bringing a claim under Section 2241 must first exhaust administrative remedies before seeking review in federal court. See McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (per curiam) (citation omitted); Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (noting that courts require "exhaustion of alternative remedies before a prisoner can seek federal habeas relief.") (internal quotation marks omitted). "In practical terms, the law of habeas, like administrative law, requires proper exhaustion [of remedies]." Woodford v. Ngo, 548 U.S. 81, 92 (2006).
The BOP has an administrative grievance process that provides inmates with opportunities for informal and formal review of complaints related to their imprisonment. See 28 C.F.R. § 542.10, etseq. Initially, inmates may appeal DHO findings to the Regional Director. Id. § 542.14(d)(2). If dissatisfied with the response from the Regional Director, inmates may then appeal to the General Counsel, on a form designated for Central Office appeals, within 30 calendar days of the date the Regional Director signed the response. Id. § 542.15(a), (b). "Appeal to the General Counsel is the final administrative appeal." Id. "When the inmate demonstrates a valid reason for delay, these time limits may be extended." Id. § 542.15(a). "Once filed, response shall be made . . . by the Regional Director within 30 calendar days; and by the General Counsel within 40 calendar days." Id. § 542.18 ("[A] Request or Appeal is considered filed on the date it is logged into the Administrative Remedy Index as received."). If during this process, an inmate does not receive a response from the Regional Director or General Counsel within the allotted time frames including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. Id.
The respondent has provided a declaration from J. Carter ("Mr. Carter"), the legal assistant for the BOP, who attached to his declaration a copy of the "administrative remedy generalized retrieval" regarding the petitioner's filings from SENTRY, the BOP's record system (doc. 16-2 at 1-2, 18-30). These documents reflect that the Regional Director received the petitioner's appeal of the DHO's findings on May 11,2019 (id. at 22). The petitioner received a receipt from the Regional Director, dated June 26, 2019, providing that it had received his appeal (doc. 1-1 at 4). However, the petitioner submits that he never received a response from the Regional Director (doc. 19 at 3-5). While Mr. Carter submits that the petitioner's appeal to the Regional Director was denied on May 15, 2019, the respondent submits that it was denied in June 2019 (docs. 16-2, Carter decl. ¶ 4; 16-1 at 12). Both dates can be seen in the administrative remedy generalized retrieval documents, with May 15, 2019, as the apparent date that the denial was entered and June 4, 2019, under "STATUS DT" (doc. 16-2 at 22).
Regardless of whether the petitioner's appeal to the Regional Director was denied in May or June, the petitioner did not file an appeal to the Central Office until over one year later, on December 15, 2020 (id. at 25). The Central Office rejected the petitioner's appeal, explaining that he needed to attach a copy of his appeal to the Regional Director, the Regional Director's response, and a BOP staff memo explaining his delay in filing (id.). The petitioner then filed another appeal to the Regional Director on April 5, 2021 (id. at 27). The Regional Director rejected this appeal as duplicative and instructed the petitioner to send the Central Office documentation from his original Regional Director appeal and a BOP staff memo explaining the delay (id.). On May 19, 2021, the Central Office received another appeal from the petitioner (id. at 28). The petitioner submits that he attached a staff memo to this appeal, and he included the staff memo as an exhibit to his petition in this case (doc. 1-1 at 7). The staff memo is on letterhead, initialed, and states as follows:
I, Y. Gordon, C-3 Unit Secretary, confirm the fact Inmate Irizarry-Corchado, Jose, Reg. #21824-069[,] [r]eceived a receipt for Remedy #977612-R1, but never received a response as of the date of this memo.(Id.). The Central Office subsequently rejected the petitioner's appeal again because he failed to provide a copy of his appeal to the Regional Director and the Regional Director's response (doc. 16-2 at 28).
The record undoubtedly reflects that the petitioner's appeals to the Central Office were rejected for technical shortcomings. See e.g., Woodford, 548 U.S. at 92 ("To ... 'protect the integrity' of the federal exhaustion rule, we ask not only whether a prisoner has exhausted his . . . remedies, but also whether he has properly exhausted those remedies ...."); Hasan v. Phelps, C/A No. 9:20-cv-04271-JD-MHC, 2021 WL 3639997, at *4 (D.S.C. July 23, 2021) (finding that a petitioner failed to exhaust his administrative remedies prior to bringing his Section 2241 petition when his appeal to the Central Office was untimely and did not contain the requisite documentation), R&R adopted by 2021 WL 3639492 (D.S.C. Aug. 17, 2021). As set out above, the petitioner should have considered his appeal to the Regional Director denied as of 30 days after he filed it with the Regional Director and appealed to the Central Office. However, the petitioner did not file his appeal to the Central Office until over one year later, on December 15, 2020. Nevertheless, the Central Office rejected the petitioner's second appeal for failing to attach a copy of his appeal to the Regional Director and the Regional Director's response, despite the petitioner providing the Central Office with a staff memo explaining that he never received a response from the Regional Director. Out of an abundance of caution, the undersigned declines to find that no genuine issue of material fact exists regarding whether the petitioner exhausted his administrative remedies and will consider his grounds on the merits herein.
C. Due Process
As set out above, the DHO imposed sanctions on the petitioner that included loss of GCT (doc. 16-2 at 16). 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). The determination of whether the standard is satisfied requires inquiry into "whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56.
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 charges on April 9, 2019, and the DHO hearing was held on April 17, 2019 (doc. 16-2 at 11, 13-17). 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 12). The DHO report and the "Notice of Disciplinary Hearing Before the (DHO)" form reflect that the petitioner selected a staff representative who participated in the hearing but waived his right to call witnesses (id. at 11, 13). Moreover, nothing in the DHO report shows that the petitioner was not provided a neutral and detached hearing. The DHO report indicates the basis for the DHO's finding that the petitioner committed Prohibited Act Code 111a and Code 196, the evidence relied upon, the action taken by the DHO, and the reasons for the action (id. at 13-17). Further, the petitioner was given a written record of the DHO report on April 23, 2019 (id. at 17). Therefore, the undersigned finds that the petitioner received the due process safeguards outlined in Wolff.
Nevertheless, the petitioner argues that his due process rights were violated because he does not speak English and was denied an interpreter to inform him of what was happening during the DHO hearing (docs. 1 at 6; 19 at 10). However, "[c]ourts have not interpreted Wolff to require the presence of an interpreter especially where, as here, the record does not support a finding that an interpreter was necessary for [the petitioner] to understand the proceedings or provide a defense on his behalf." Garcia-Garcia v. Rickard, C/A No. 1:15-11697, 2018 WL 1973280, at *2 (S.D. W.Va. Apr. 26, 2018) (collecting cases). The petitioner was informed of his rights at the DHO hearing and stated that he understood his rights, communicated with prison officials in English, and articulated many statements in English throughout the investigation and hearing in his defense. Furthermore, the petitioner's prison education records show that he has completed his GED and is "English Proficient since 2008" (doc. 16-2, Carter decl. ¶ 5; 16-2 at 31). As a result, the undersigned finds that the petitioner has failed to carry his burden of showing that a genuine issue of material fact exists for trial regarding his lack of an interpreter. See, e.g., Garcia-Garcia, 2018 WL 1873280, at *2 ("There is no evidence in the record that Garcia-Garcia ever requested an interpreter. Furthermore, during his hearing, Garcia-Garcia indicated that he was advised of his rights and understood them. . . . Indeed, Garcia-Garcia communicated in English with prison officials throughout the disciplinary proceedings . . . . Furthermore, the fact that Garcia-Garcia had completed a 40-hour English Proficiency course more than a year earlier is further evidence that the language barrier was not such that an interpreter was required."); Herrera v. Masters, C/A No. 1:15-09028, 2016 WL 3951321, at *4 (S.D. W.Va. Feb. 2, 2016) (finding that not providing a petitioner with an interpreter did not violate his rights when there was no indication that he requested an interpreter during the DHO hearing and evidence in the record reflected that he understood English); Marin v. Owens, C/A No. 4:08-1644-TLW-TER, 2008 WL 5235866, at *5 (D.S.C. Dec. 12, 2008) (finding that dismissal was proper on a petitioner's claim that his due process rights were violated when he was not provided an interpreter because there was no evidence that he requested an interpreter, he waived his right to a staff representative when he could have requested a Spanish-speaking staff representative, and his education records reflected that he completed his GED and was "English Proficient").
The petitioner also argues that he was denied the opportunity to have a handwriting specialist compare his handwriting to the handwriting in the letters in question (docs. 1 at 6; 19 at 10). 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." Wolff, 418 U.S. at 556 (citation omitted). Moreover, the standard set forth in Wolff does not entitle federal prisoners to outside scientific or forensic testing to rebut evidence used against them in disciplinary hearings. See id. at 563-70. Accordingly, the undersigned finds that the petitioner's argument is without merit. See, e.g., Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (holding that prison officials were not required to provide additional urinalysis by impartial laboratory to satisfy the Due Process Clause); Cato v. Ives, No. 12-193-GFVT, 2013 WL 1856101, at *5 (E. D. Ky. Apr. 30, 2013) (noting that "[a] prisoner . . . has no protected due process right in obtaining outside scientific or laboratory testing of evidence to be used against him . . . or requiring the prison to find, retain, and present an expert witness on his behalf in the disciplinary proceeding" and rejecting a petitioner's assertion that a letter should have been analyzed by handwriting and fingerprint experts) (citation omitted); Rivas v. Cross, C/A No. 2:10-cv-98, 2011 WL 1601289 at *7-8 (N.D. W.Va. Apr. 1, 2011) (stating that "Wolff does not . . . guarantee prisoners the unfettered right to call any witness or present any evidence they wish regardless of its relevance or necessity" and rejecting a petitioner's argument that his due process rights were violated when the BOP did not allow him to obtain additional testing by a certified or independent and qualified outside laboratory) (internal citations and quotation marks omitted); Outlaw v. Wilson, C/A No. 3:07-cv-54, 2007 WL 1295815, at *2 (N. D. Ind. Apr. 30, 2007) (finding that an inmate was not constitutionally entitled to handwriting analysis and a lie detector test as part of a disciplinary hearing).
The petitioner further argues that he was denied an opportunity to view all of the evidence used against him at his DHO hearing (docs. 1 at 6; 19 at 2). Specifically, the petitioner submits that he was unable to see any of the letters (doc. 19 at 7). However, nothing in the petitioner's disciplinary records reflects that he requested to view the letters but was denied the opportunity. See BOP P.S. 5270.09, Inmate Discipline Program. p. 21 (available at https://www.bop.gov/PublicInfo/execute/policysearch?todo=query & series=5000#) (providing that the DHO "must give a copy of the investigation and other relevant materials to the inmate's staff representative, if requested, for use on the inmate's behalf.") (emphasis added). Rather, the DHO report reflects that the petitioner was "given the opportunity to view all the documents used as evidence" (doc. 16-2 at 13). Further, even assuming that the petitioner was not provided an opportunity to view the letters, the undersigned finds that any such error is harmless. 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). The petitioner has failed to explain how this alleged denial in any way hindered his ability to present a defense. See Asar v. Barnes, C/A No. 6:21-2282-HMH-KFM, 2021 WL 6618275, at *4 (D.S.C. Nov. 16, 2021) ("[T]he 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.") (citations omitted); Jones v. Bolster, C/A No. 1:19-cv-479-LO-MSN, 2020 WL 809375, at *3-4 (E.D. Va. Feb. 14, 2020) (finding the denial of a petitioner's request for relevant documents was a due process violation but that such error was harmless because the petitioner did not explain how these documents would have aided his defense); 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).
Additionally, the petitioner alleges that he did not receive proper or timely responses to his administrative remedy filings (docs. 1 at 7; 19 at 3-5, 11). To the extent that the petitioner is submitting this argument as a ground for habeas relief, as opposed to in response to his failure to exhaust, the undersigned also finds that this argument is without merit. As set out above, if an inmate does not receive a response from the Regional Director or the General Counsel within the allotted time frames, he may consider such response or appeal as denied and appeal to the next level. 28 C.F.R. § 542.18. Moreover, to the extent that the Regional or Central Offices violated any BOP policy, "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). Additionally, the petitioner has failed to show that he was prejudiced by any failure to respond, and he has been able to challenge his disciplinary action in this court. 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); 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 violation of its own policy was without merit because the petitioner was not prejudiced and still able to challenge his disciplinary conviction in federal court); Calixto v. Masters, C/A 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 Director or Central Office in failing to timely respond is harmless.
Further, the petitioner contends that he was found guilty without any evidence to support the finding (docs. 1 at 6; 19 at 5-10, 11). However, the undersigned recommends that the district court find that the DHO's findings are supported by "some evidence in the record." Hill, 472 U.S. at 454 (holding that "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" (quoting Wolff, 418 U.S. at 558)). The Supreme Court of the United States has explained, "[t]his 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, the DHO found that the greater weight of the evidence supported finding that the petitioner committed the prohibited acts (doc. 16-2 at 14-17). As discussed above, the DHO expressly relied on the reporting officer's statement; the N8 pill images showing that N8 stood for Suboxone; the letters; a presentence investigation report for the petitioner showing the petitioner's nicknames and co-defendants; a TRUVIEW report naming the petitioner's spouse; a TRUVIEW report showing that the number was on the petitioner's phone list in the past; an inmate names form showing that the petitioner's nicknames were Chewy, Che, Chewy F., and Chewy Flamboyan; and the petitioner's inmate disciplinary record showing that he had previously attempted to introduce Suboxone into a federal prison (id. at 14-15). Further, the DHO explained in the report as follows:
The DHO based the decision on the greater weight of the evidence provided by the officer and her report. The writer was specific when stating you were attempting to introduce drugs
and a cellphone into the institution by sending an unmonitored letter out of the institution via an inmate releasing. The letters were tied to you by the information in the letter, your nick names, and the letters were addressed to your wife and codefendant. All of the information was verified with documentation listed above. The DHO considered your denial you had anything to do with letter; your name and number was not on the letters; you did not know the inmate who had the letters; this was your wife, but you did not call the number in the letter, and it is not of your phone; someone else stole your labels from recreation; and you don't talk to your codefendant, because he told on you. The DHO also considered your staff representative's statement, she wanted to see if the phone number in the letter belonged to you, and it was provided. Finally, the DHO verified from your documentation the phone number is not currently on your list, and you have not called it this year; however, the Trueview report showed it was on your list in the past. The DHO does not believe you do not know the inmate releasing, but you could have easily arranged for him to take the letter out through another inmate. Consequently, this does not excuse you[r] behavior. The DHO does not believe someone simply took your label to get your wife's address. If that were the case, they would also have to know your codefendant's names, your nick names, and know the phone number which was removed from your current phone list. There are too many coincidences for these letters to be written and sent by another inmate. In addition, no one else would have anything to gain by writing and sending the letters but you. Even if your codefendant testified against you in the past, this does not exclude you from seeing if he was willing to assist you in introducing drugs or a cellphone in the future, since you also asked your wife/codefendant to do the same. Finally, you do have a history of introducing drugs into a federal correctional institution which shows would attempt to get them again. The Federal Bureau of Prisons has a zero tolerance against drugs and alcohol. In addition, Use of cellular telephones can allow an inmate to plan an escape without the chance of staff monitoring the call/text. You would also be able to make threats to civilians, or use the phone for other potential criminal acts in the local community, which could potentially harm civilians in the community. For all these reasons listed, it is not intended for inmates make telephone calls or send texts which are not monitored. Because you did try to introduce a cellphone (another 100 series prohibited act) into a correctional facility via the United States Postal Service the charge for code 196, Mail Abuse, is warranted. Furthermore, since you attempted to introduce Suboxone (a drug) into the prison, the
charge for code 111a, Attempted Introduction of Drugs, is appropriate.
...(Id. at 15-16). Based this evidence relied on by the DHO, the undersigned finds that the DHO's finding was supported by "some evidence in the record," as required by Hill.
The petitioner also raises additional grounds in his response to the motion for summary judgment that he did not raise in his petition, including that his staff representative did “NOTHING to assist [him] in any way” and he was given “NO OPPORTUNITY to call witnesses” (see doc. 19). The undersigned declines to consider these new grounds, as "it is well-settled in this district that new matters cannot be raised in a response to a motion for summary judgment." Monroe v. Louis, C/A No. 6:18-561-RBH, 2019 WL 1229746, at *3 (D.S.C. Mar. 15, 2019) (citations and internal quotation marks omitted). Accordingly, the undersigned recommends that the district court grant the respondent's motion for summary judgment (doc. 16).
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. 16).
IT IS SO RECOMMENDED.
The petitioner's attention 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 300 East Washington Street, Room 239 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).