Opinion
Civil Action 2:23-02647-JDA-MGB
03-28-2024
Jacob Mosley, Petitioner, v. Warden Janson, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Petitioner Jacob Mosley (“Petitioner”) has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, challenging disciplinary action taken against him at FCI Oakdale 1. (Dkt. No. 101.) Currently before the Court is Respondent's Motion for Summary Judgment (Dkt. No. 15). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the petition and submit findings and recommendations to the United States District Judge. For the reasons set forth in greater detail below, the undersigned RECOMMENDS that Respondent's Motion for Summary Judgment be GRANTED.
FACTUAL SUMMARY
Petitioner is an inmate in the custody of the Federal Bureau of Prisons (“BOP”) at the Federal Correctional Institution in Edgefield, South Carolina (“FCI Edgefield”). Petitioner was previously held at a Federal Correctional Institution in Oakdale, Louisiana (“FCI Oakdale 1”). On September 15, 2023, Petitioner filed the instant petition challenging a disciplinary action taken against him at FCI Oakdale 1, arguing that his due process rights were violated. (Dkt. No. 1.)
On June 22, 2022, while incarcerated at FCI Oakdale 1, an FCI Oakdale 1 staff member purportedly found Suboxone, a prohibited substance, in an unsecured locker in Petitioner's cell. (Dkt. No. 15 at 5; Dkt. No. 15-1 at 4.) Incident Report Number 3643444, which charges Petitioner with violating Prohibited Act Code 113, Possessing Drugs/Alcohol, describes the offense as follows (verbatim):
This is a Re-Write:
On approximately June 22, 2022 at 3:10PM, I, Officer T. Welch conducted a random cell search in cell 226. While searching cell 226, I searched the unsecured locker that appeared to be Inmate Mosely, Jacob Reg. No. 14282-509 due to inmate mail being addressed to Inmate Mosley and prescription medication with Inmate Mosley's name and number addressed to him in the locker. I searched the spine of a red hard cover book that had an unknown object stuffed in the spine. After digging out the unknown object, it appeared to be orange strips with the letters “N8” on them. I immediately confiscated the book and sent the oranges strips to medical for testing. At approximately 1515 Pharmacist Jones identified the orange sublingual film marked N8 as suboxone. Cell 226 is assigned to Inmate Mosley, Jacob Reg. No. 14282-509 and Inmate **** in Sentry.(Dkt. 15-1 at 4.)
Respondent explains that “[t]he incident report underwent several rewrites to update information (for example, to add information concerning decisions of the Unit Disciplinary Committee, and to add information concerning the subsequent identification of the drugs by a pharmacist) and correct information (such as correcting the time of the incident).” (Dkt. No. 15 at 5.)
Petitioner received a copy of the final incident report on July 3, 2022. (Id.) A staff member advised Petitioner of his rights on that same day. (Id. at 5-6.) At that time, Petitioner stated that “the locker with the book was his locker and he had recently obtained the book from the library and had no idea there was contraband inside of it.” (Id.) A Unit Discipline Committee (“UDC”) hearing was held on July 6, 2022, at which time Petitioner was afforded an opportunity to make a statement but declined to do so. (Id.) The UDC referred the charges to the Inmate Discipline Hearing Officer (“DHO”) for further consideration. (Id.)
Petitioner was given a “Notice of Discipline Hearing Before the (DHO)” on July 6, 2022. (Id. at 8.) Petitioner indicated that he did not wish to have a staff representative and did not wish to have witnesses at his DHO hearing, and he signed the Notice. (Id.) Petitioner was also given a form detailing his rights at the DHO hearing, which he signed on July 6, 2022. (Id. at 10)
Petitioner's DHO hearing was held on July 12, 2022. (Id. at 12.) With respect to the timing of Petitioner's DHO hearing, the DHO Report explains that “the incident report was served late due to a rewrite” and that “[t]he UDC obtained an approved UDC extension memo signed by the Warden,” but “[the] delay did not affect [Petitioner's] ability to present a defense.” (Id. at 12-13.) The DHO Report also explains that the DHO attempted to hold Petitioner's hearing on July 7, 2022, but could not because Petitioner “requested video footage be reviewed in reference to the time staff entered the cell.” (Id.) According to the DHO Report, the hearing was postponed and “SIS Beaubouef reviewed the footage and provided the DHO with the findings.” (Id.)
The DHO Report identifies A. Thomas as the Disciplinary Hearing Officer and indicates that during the hearing Petitioner was afforded the opportunity to make a statement, have a staff representative, provide evidence on his behalf, have witnesses appear, and/or present written statements of unavailable witnesses. (Id. at 12-14.) Petitioner waived his right to a staff representative and witnesses. (Id.) Petitioner did not admit or deny the charge against him and stated that he had no documentary evidence to present. (Id.) Petitioner stated only as follows: “It appears that was made in the book. If I would have known that I would have put the book back. I am the one who actually got the book. He came in the cell at 2:32 pm, he is saying he came in at 3:10 pm.” (Id.)
In addition to the incident report and the investigation, the DHO considered photographs, a memorandum from the Chief Pharmacist, and an email from Special Investigative Services Technician (“SIS”) Beaubouef noting that the video evidence showed an officer exiting Petitioner's cell at approximately 3:00 pm on the day of the incident. (Id.) After consideration of all the evidence, the DHO found that Petitioner committed the prohibited act of Possession of Drugs/Narcotics. (Id.) The DHO outlined the sanctions to be imposed and the reasons for the sanctions imposed. (Id. at 15.) Specifically, 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 65 days loss of email privileges. (Id.)
In support of the DHO's conclusion and chosen sanctions, the DHO Report describes (verbatim):
The DHO considered your statement and defense to the charge. Although you argued staff entered your cell at 2:32 pm, the DHO notes according to the video footage, staff exited your assigned cell at approximately 3:00 pm, however, the DHO notes the possibility of the video footage be slightly off due to natural occurrences such as weather. The DHO also notes the reporting staff member also stated in section 11 of the incident report, “approximately,” therefore, the DHO finds the staff member entered your assigned cell conducted a cell search at approximately 3:10 pm. You also argued if you would have known the suboxone was in the spine of the book, you would have put the book back, however, the DHO notes you admitted you were the inmate who “actually got the book.” Staff was clear in section 11 of the incident report, therefore, the DHO gives greater weight to the reporting staff member. The decision to find inmate Mosley guilty was based on the statement of the reporting staff member, the evidence presented, and your admission you were the inmate who obtained the book. When staff located the red book in your locker identified by mail addressed to you and your prescription bottles, you were considered in violation of possession of drugs/narcotics. The action/behavior on the part of any inmate to possess drugs 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 in a correctional facility creates an environment conduce to violence. In the past, inmates under the influence of drugs have become violent towards others, which cannot and will not be tolerated. Therefore, based on the evidence, the DHO finds you committed the prohibited act. 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.(Id. at 14.) The DHO Report was completed on July 22, 2022, and was delivered to Petitioner on July 29, 2022. (Id. at 15.)
Now, Petitioner challenges this disciplinary action, claiming that his due process rights were violated because he was not allowed to see video evidence that was used to support the disciplinary action imposed against him, and he was not allowed to call witnesses to testify on his behalf. (Dkt. Nos. 1, 10-1.) Petitioner further claims that he was in transit during the appeal period and was therefore unable to timely appeal the DHO's decision. (Dkt. Nos. 1, 10-1.) Petitioner also takes issue with the fact that the incident report underlying his disciplinary action was rewritten. (Dkt. Nos. 1, 10-1.) Petitioner therefore requests that the disciplinary charge be expunged, that his good conduct time be restored, and that his sanctions be reversed. (Dkt. Nos. 1, 10-1.)
PROCEDURAL HISTORY
On October 6, 2023, Respondent filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment, asserting that the instant Petition should be dismissed because Petitioner failed to exhaust his administrative remedies before filing in this Court, and that Petitioner received all due process to which he was entitled. (Dkt. No. 15.) On October 10, 2023, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 16.) After requesting and receiving an extension of time to file a response, Petitioner responded on November 8, 2023. (Dkt. No. 22.) Respondent declined to reply by the November 15, 2023 deadline. (Id.) Accordingly, the motion before the Court has been fully briefed and is ripe for habeas review.
LEGAL STANDARD
As matters outside the pleadings have been considered by this Court, Respondent's Motion will be treated as one for summary judgment. Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56....”). 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, this 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). However, “[o]nly 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. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 321 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the Court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
DISCUSSION
Respondent argues that the § 2241 Petition should be dismissed because: (1) Petitioner failed to exhaust his administrative remedies before filing the Petition; and (2) Petitioner has received all due process safeguards afforded to him by Wolff v. McDonnell, 418 U.S. 539 (1974). (Dkt. No. 15.) The undersigned considers these arguments, below.
I. Exhaustion of Administrative Remedies
Respondent first argues that Petitioner failed to exhaust his administrative remedies and his Petition should therefore be dismissed. (Dkt. No. 15.) In response, Petitioner claims that he “made an attempt to appeal” but that “the appeal was undermined through [machinations] of transferring and withholding timely service of relevant documents.” (Dkt. No. 22 at 7.) For the reasons set forth below, the undersigned agrees with Respondent and recommends that the instant Petition be dismissed.
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts have required prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in a § 2241 matter); Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (noting courts require “exhaustion of alternative remedies before a prisoner can seek federal habeas relief” (internal quotation marks omitted)). A court may excuse an inmate's failure to exhaust upon a showing of cause and prejudice. McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004).
The BOP has an administrative grievance process. See 28 C.F.R. § 542.12 et seq. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request within 20 days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director. Appeals to the Regional Director must be submitted within 20 days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel within 30 days of the date the Regional Director signed his response. Id. If, during this process, the inmate does not receive a response in the allotted time frame (including any extensions), the inmate may consider the request denied and appeal to the next level. Id. § 542.18.
In support of his motion, Respondent presents an affidavit from J. Carter, a paralegal for the Federal Bureau of Prisons' (“BOP”) South Carolina Consolidated Legal Center, located at the Federal Correctional Institution in Edgefield, South Carolina. (Dkt. No. 15-1 at 2.) Carter's affidavit asserts that “Petitioner did not exhaust administrative remedies” related to the disciplinary action underlying the instant habeas petition. (Id.) Attached to the affidavit are excerpts from SENTRY, the BOP's recordkeeping system, confirming Carter's assertion that Petitioner failed to exhaust his administrative remedies with respect to the relevant disciplinary action. (Id. at 17-19.)
These excerpts show that Petitioner began the administrative remedy process by filing an administrative grievance on October 24, 2022 with the South Central Regional (“SCR”) office. (Id. at 18.) This initial grievance was rejected on November 9, 2022 because it was filed more than 20 days from the date Petitioner received his DHO Report. (Id.) Petitioner was instructed that his grievance was now assigned to the Southeast Regional (“SER”) office. (Id.)
Petitioner then escalated his grievance to the SER office on February 2, 2023. (Id.) On February 10, 2023, it was rejected for purportedly the same reason as his grievance to the SCR office. (Id.) Petitioner escalated his grievance to the national level on April 10, 2023, but it was rejected again on May 15, 2023. (Id. at 19.) Based on the record before the Court, Petitioner did not resubmit his grievance or file any additional ones relating to the DHO report.
Respondent asserts that Petitioner failed to exhaust his administrative remedies in this instance because Petitioner was required to file his DHO appeal with the regional office where he was located within 20 days of his receipt of the DHO report, per BOP's administrative grievance policy. (Dkt. No. 15 at 9, 11.) Here, the record indicates that Petitioner received the DHO report on July 29, 2022, but did not file his grievance until October 24, 2022. (Id.; see also Dkt. No. 151 at 15, 18.) As such, Petitioner did not properly exhaust his administrative remedies.
Petitioner asks the Court to overlook his failure to exhaust, claiming that he was unable to timely file his administrative remedy because he was in transit to a new institution during the appeal period. (Dkt. No. 10-1 at 10.) However, Petitioner's claims are not sufficient to prove that his administrative remedies were unavailable to him. Indeed, the record reflects that Petitioner was transferred from FCI Oakdale 1 on August 17, 2022, which was 19 days after he received the DHO report on July 29, 2022. (Dkt. No. 15-1 at 21.) Further, he arrived at FCI Edgefield on September 1, 2022, but did not file his appeal of the DHO report until October 24, 2022. (Id. at 18, 21.) Petitioner provides no explanation as to why he did not file his appeal in the 19 days prior to his transfer, nor does he explain why he waited nearly two months to file after arriving at FCI Edgefield. (See generally Dkt. Nos. 10-1, 22.) Without more, the undersigned simply cannot conclude that Petitioner's claims regarding his transfer amount to “facts showing that he was prevented, through no fault of his own, from availing himself of [the BOP's administrative grievance] procedure.” Graham v. Gentry, 413 Fed. App'x 660, 663 (4th Cir. 2011). Petitioner makes no other arguments as to why this Court should excuse his failure to exhaust his administrative remedies. (See generally Dkt. Nos. 1, 10-1, 22.)
To the extent Petitioner attempts to argue that he could not exhaust his administrative remedies because he “was never given a Copy of the DHO report to allow him to appeal,” the record before the Court-including Petitioner's own filings-conclusively dispels this assertion. Indeed, the record shows that Petitioner received a copy of the DHO report on July 29, 2022. (See Dkt. No. 10-1 at 20, 22; see also Dkt. No. 15 at 15.)
Based on the foregoing, the undersigned finds that Petitioner failed to exhaust his administrative remedies prior to filing this Petition. The undersigned therefore recommends that Respondent's motion be granted, and that the Petition be dismissed.
II. Due Process Claims
Even if Petitioner had properly exhausted his administrative remedies, he is not entitled to relief. As noted, Petitioner alleges that his due process rights were violated during the disciplinary hearing process because he was not allowed to see video evidence that was used to support his charge and he was not allowed to call witnesses to testify on his behalf. (Dkt. Nos. 1, 10-1.) Petitioner also takes issue with the fact that the incident report at issue was rewritten, claiming that it was rewritten only to conceal the fact that the original report was not timely delivered to him and to allow an opportunity to cure that defect. (Dkt. Nos. 1, 10-1.) Respondent counters that each of Petitioner's arguments fail because he “received all the due process safeguards afforded to him by Wolff v. McDonnell, 418 U.S. 539 (1974).” (Dkt. No. 15 at 13.) The undersigned considers these arguments, below.
A. Inmate Due Process Safeguards
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty or property without due process of law.” U.S. Constitutional Amendment XIV § 1. In Wolff v. McDonnell, 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, such as the good conduct time the petitioner lost in this case, is affected. 418 U.S. 539 (1974). The Supreme Court has outlined the due process protections inmates are entitled to with respect to prison disciplinary proceedings where the inmate's liberty interest is at stake. Due process is satisfied in prison discipline hearings when the inmate receives: a finding from an impartial decisionmaker; 24 hours advance written notice of the charges; an opportunity to appear at the hearing; a conditional opportunity to present documentary evidence and testimony from witnesses; and a written statement of the evidence relied on and the reasons for the disciplinary action. Wolff, 418 U.S. at 564-66; Baker v. Lyles, 904 F.2d 925, 929 (4th Cir. 1990). The BOP's rules embodying disciplinary procedures are codified at 28 C.F.R. § 541.1 et seq. These rules and regulations were written to comply with the constitutional requirements of due process in prison discipline matters.
The record of Petitioner's hearing reflects that the BOP complied with the requirements of Wolff. See Wolff, 418 U.S. at 564-66. Petitioner was given advance written notice of the charges more than 24 hours before the UDC and DHO hearings. Petitioner was offered the opportunity to present evidence in the form of documents or witnesses and to have the assistance of a staff representative, but Petitioner chose not to exercise those rights. (Dkt. No. 15-1 at 8, 12-15.) Petitioner also made a statement denying that he knew the Suboxone was in the book but admitting that he was the person who “got the book.” The record of the hearing further reflects the decision of the DHO, the evidence relied upon, and the reasons for the decisions and the sanctions imposed. (Dkt. No. 15-1 at 12-15.) Thus, as Respondent asserts, Petitioner received all procedural due process protections required under Wolff.
In his response brief, Petitioner reiterates his belief that he was denied due process because he requested “review of the video footage and requested to call witnesses and he was refused both.” (Dkt. No. 22 at 5.) However, as noted above, the DHO expressly considered the video evidence Petitioner asked the DHO to review and provided Petitioner with the opportunity to call witnesses. (See supra at 1-4); see also Lennear v. Wilson, 937 F.3d 257, 272 (4th Cir. 2019) (noting that an inmate's right to have video surveillance evidence considered in disciplinary proceedings requires that “upon an inmate's request, the disciplinary hearing officer must review video surveillance unless the government establishes that consideration of such evidence would be, under the particular circumstances of the case, unduly hazardous to institutional safety or correctional goals.” (internal quotation marks omitted)). There is no evidence in the record to indicate that Petitioner ever requested to review any video footage himself,and, importantly, Petitioner repeatedly waived his right to have a staff representative at his hearing, to call witnesses, and to present documentary evidence. (See, e.g., Dkt. No. 15-1 at 13; see generally Dkt. Nos. 1, 10-1, 22.) Regardless, the video footage at issue here pertains only to the time the officer entered Petitioner's cell, not whether Petitioner committed the violation for which he was disciplined. (See generally Dkt. Nos. 1, 10-1, 15-1, 22.) In other words, the video footage would not be exculpatory and is not pertinent to the disciplinary action at issue, nor Petitioner's ability to mount his defense against it. See Lennear, 937 F.3d at 270.
Even if the record did contain evidence indicating that Petitioner requested to review this evidence himself, Respondent asserts this would not have been possible because “allowing Petitioner to view the video evidence would have provided him the precise location of the camera, its field of view, and the image resolution.” (Dkt. No. 15 at 15.) Thus, review from an impartial Special Investigative Services Technician was most appropriate. (Id.)
Petitioner's response brief also clarifies that he believes he was denied procedural due process because “[t]he incident report was not properly or timely served” and was “rewritten several times for no valid reason.” (Dkt. No. 22 at 5.) Petitioner claims that this was an attempt to conceal a “procedural default.” (See generally Dkt. Nos. 10-1, 22.) While Petitioner does not clarify what he means by “procedural default,” he seems to think he was entitled to receive a copy of the incident report at issue within 24 hours of the incident, pursuant to BOP policy. (See generally Dkt. Nos. 10-1, 22.) Though he is correct that these rules state that inmates “will ordinarily receive the incident report within 24 hours of staff becoming aware of [the inmate's involvement in the incident,” this is not a steadfast requirement and certainly does not amount to a constitutional violation. See BOP Program Statement 5270.09, Inmate Discipline Program, § 541.5(a); 28 C.F.R. § 541.5(a); see also Cherfils v. Dunbar, No. 8:22-cv-03241-JD-JDA, 2023 WL 6164353, at *7 (D.S.C. July 27, 2023) (noting “Wolff does not set forth a time limitation within which a prisoner must receive a written report following an incident that leads to disciplinary proceedings that involve the loss of GCT”), adopted, 2023 WL 6161994 (D.S.C. Sept. 21, 2023); Serrano v. Warden of FCI-Bennettsville, No. 9:21-cv-02927-DCC-MHC, 2022 WL 4227387, at *7 (D.S.C. July 19, 2022) (“[A] violation of BOP policies and procedures-to the extent this may be one-does not support a due process violation.”), adopted, 2022 WL 4182487 (D.S.C. Sept. 13, 2022); Bauer v. Warden FCI Williamsburg, No. 6:16-cv-304-RMG, 2017 WL 318683, at *2 (D.S.C. Jan. 23, 2017) (explaining that “the BOP's violations of its own policies do not amount to a due process violation”). Thus, Petitioner's arguments do little to persuade the Court that he was denied procedural due process.
B. Sufficiency of Evidence in Prison Disciplinary Proceedings
Having found that Petitioner was afforded all of the procedural due process protections required by Wolff, the undersigned turns to the sufficiency of the evidence relied upon by the DHO in rendering his decision. In Superintendent, Massachusetts Correctional Institution v. Hill, the Supreme Court set out the constitutional evidentiary standard to be used when courts review prison discipline decisions. 472 U.S. 445 (1985). 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 as a constitutional requirement, stating:
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.
“The ‘some evidence' standard is a lenient one, requiring no more than ‘a modicum of evidence,' and is met if there is any evidence in the record that could support the board's decision.” Taylor v. Bauknecht, No. 6:06-cv-2268-DCN, 2007 WL 2021880 at *4 (D.S.C. July 6, 2007) (quoting Hill, 472 U.S. at 455-56). The “some evidence” standard is less exacting than the preponderance of the evidence standard, requiring only that the decision not be arbitrary or without support in the record. Hill, 472 U.S. at 457. In reviewing a decision for “some evidence,” courts “are not required to conduct an examination of the entire record, independently assess witness credibility, or weigh the evidence, but only determine whether the prison disciplinary board's decision to revoke good time credits has some factual basis.” Id. at 455-56; see also Baker v. Lyles, 904 F.2d 925, 932 (4th Cir. 1990). “This standard requires ‘only that the decision not be arbitrary or without support in the record.'” Taylor, 2007 WL 2021880 at *4 (quoting McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999)). In other words, the Court's focus is “limited solely to a determination of whether there is some evidence in the record to support the DHO's decision.” Johnson v. Warden, FCI Williamsburg, No. 1:13-cv-3347-JFA-SVH, 2014 WL 4825926, at *8 (D.S.C. Sept. 24, 2014) (noting that “Petitioner denies knowing that the contraband was in his locked locker”; finding no due process violation because “there is some evidence in the record to support the DHO's decision that Petitioner was in constructive possession of the marijuana found in his locked locker”), aff'd sub nom. Johnson v. Cruz, 597 Fed.Appx. 161 (4th Cir. 2015).
Upon review, the undersigned finds that the record shows there was “some evidence” to support the DHO's decision. Hill, 472 U.S. at 455-56. The DHO expressly considered Petitioner's statement that he “got the book,” as well as photographic evidence indicating that the book was in Petitioner's locker and had Suboxone hidden in the spine. (Dkt. No. 15-1 at 13-14.) The DHO also considered the video evidence that Petitioner asked the DHO to review, as well as the Chief
Pharmacist's opinion that the orange strips found in the book were, in fact, Suboxone. (Id.) Based on all of the evidence presented, the DHO concluded that Petitioner committed the prohibited acts as charged. (Id.) The undersigned therefore finds that there is “some evidence” to support the DHO's decision, and the decision should be upheld. Hill, 472 U.S. at 455-56; see also Belt v. Warden FCI Edgefield, No. 9:17-cv-0286-JFA-BM, 2017 WL 6820041, at *5 (D.S.C. Oct. 20, 2017) (dismissing § 2241 petition disputing DHO's findings based on claim that the Suboxone found in inmate's cell did not belong to him; noting DHO considered this argument at hearing and stated that handbook provides inmates are responsible for all contents in their room), adopted, 2018 WL 321549 (D.S.C. Jan. 8, 2018).
In sum, the undersigned cannot conclude that Petitioner's constitutional rights were violated because he received all the process due to him under the standards established in Wolff, 418 U.S. at 564-66, and Hill, 472 U.S. at 455-56. Accordingly, the undersigned RECOMMENDS that the DHO's decision should be upheld, and that Respondent's motion should be GRANTED.
CONCLUSION
Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the Motion for Summary Judgment (Dkt. No. 15) be GRANTED.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).