Opinion
C. A. 1:19-3364-SAL-SVH
01-24-2020
Tyrone Perry, #307793, Petitioner, v. Scott Lewis, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Tyrone Perry (“Petitioner”), proceeding pro se and in forma pauperis, filed this petition pursuant to 28 U.S.C. § 2254 against Perry Correctional Institution's Warden, Scott Lewis (“Respondent”). Pursuant to the provisions of 28 U.S.C. § 636(b)(i)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the amended petition with prejudice and without requiring Respondent to file a return.
I. Factual and Procedural Background
Petitioner is a state prisoner currently incarcerated at Broad River Correctional Institution. [ECF No. 9-2]. He brings this petition for a writ of habeas corpus challenging a September 20, 20i8 prison disciplinary proceeding whereby he was convicted of fighting without a weapon. [ECF No. 9 at 1].
Petitioner alleges he is entitled to additional due process safeguards because he is a mentally-ill inmate. Id. at 5. He specifically maintains he was not seen by a qualified mental health professional within three days of the issuance of the incident report in the disciplinary proceeding. Id. He claims South Carolina Department of Corrections (“SCDC”) officials engaged in fraud and obtained a conviction through violations of policy, statute, and the Constitution. Id. at 5.
Petitioner further maintains his case was not tried by an impartial hearing officer. Id. at 7. He claims the hearing officer refused without explanation to call witnesses on his behalf and concluded without sufficient evidence that he provoked the incident. Id. He maintains the other individual assaulted him. Id. at 8. He claims he was discriminated against based on his race. Id. at 10.
Petitioner claims he filed an institutional grievance alleging violations of due process and equal protection and appeals in the South Carolina Administrative Law Court, the South Carolina Court of Appeals, and the South Carolina Supreme Court that were all dismissed. Id. at 2-5. He alleges he was denied the ability to participate in appellate proceedings because of his indigent status. Id. at 5, 7, 9, 10.
Petitioner states he had no prior violent disciplinary infractions prior to the conviction for fighting without a weapon. Id. at 8. He requests the court “vacate and overturn this violent charge of fighting without a weapon.” Id. at 15.
Petitioner states “SCDC is about to enforce a new classification policy and in 15 years I have no violent disciplinaries, ” but he provides no further explanation as to how the alleged new policy would affect him. See ECF No. 9 at 8.
Petitioner filed a petition for writ of habeas corpus on December 2, 2019. [ECF No. 1]. On December 3, 2019, the undersigned issued a proper form order notifying Petitioner that he had neglected to sign the petition and permitting him until December 24, 2019, to sign and return it. [ECF No. 5]. Petitioner filed an amended petition on December 11, 2019. [ECF No. 9]. In light of Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619, 623 (4th Cir. 2015), and its progeny, the undersigned issued an order and notice on December 13, 2019, advising Petitioner of deficiencies in his petition and permitting him until January 3, 2020, to file an amended petition or complaint. [ECF No. 10]. Petitioner filed motions for extension of time and clarification on December 23, 2019. [ECF Nos. 12, 13]. The undersigned issued a text order providing clarification and granting Petitioner's motion for extension, making his amended petition or complaint due by January 20, 2020. [ECF No. 14]. Petitioner has failed to respond to the court's December 13, 2019 order.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, this petition has been carefully reviewed pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Failure to Prosecute
It is well established that a district court has authority to dismiss a case for failure to prosecute. “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630.
Based on Petitioner's failure to respond to the court's December 13, 2019 order, the undersigned concludes he does not intend to pursue the abovecaptioned matter. Accordingly, the undersigned recommends this case be dismissed for failure to prosecute pursuant to Fed.R.Civ.P. 41. The undersigned further recommends the court dismiss the amended petition for the additional reasons set forth below.
2. Lack of Jurisdiction Under 28 U.S.C. § 2254
Pursuant to 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”
Although Petitioner challenges the actions in his prison disciplinary proceedings as violating his Fourteenth Amendment rights to due process and equal protection of the laws, he has not alleged those actions resulted in or prolonged his period of incarceration. A review of Petitioner's disciplinary actions on SCDC's website reveals he received no reduction in good time credit as a result of the incident in question. See South Carolina Department of Corrections, Inmate Search, https://public.doc.state.sc.us/scdc-public/ (last visited January 24, 2020). It specifies Petitioner received loss of telephone privileges for 30 days for the August 22, 2018 offense of fighting without a weapon. See id. Petitioner also attached to his original petition an Order of Dismissal from the Administrative Law Court, which states “[t]he SCDC decision indicates that Appellant was not sanctioned any accrued good time.” [ECF No. 1-1 at 2].
A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (finding that court may “properly take judicial notice of matters of public record”).
“Petitioner is not entitled to habeas relief from this Court under the facts presented because he did not lose any good time credits as a result of the disciplinary action imposed, and the conviction at issue has also not necessarily effected the duration of his sentence.” Smalls v. Warden, C/A No. 9:16-639-JMC-BM, 2016 WL 11200993, at *3 (D.S.C. Sept. 28, 2016), Report and Recommendation adopted by 2017 WL 892576 (D.S.C. Mar. 7, 2017); see also Slappy v. Bazzle, C/A No. 0:05-14-DCN, 2005 WL 6139235, at *2 (D.S.C. Nov. 21, 2005) (providing “even assuming Petitioner could set aside the alleged discriminatory disciplinary action complained about, it would have no effect on the duration of his sentence because he did not lose any good time credits as a result of the disciplinary action imposed) (citing Dixon v. Hastings, C/A No. 0440346, 117 Fed. App'x 371, 372 (5th Cir. 2005) (indicating where alleged acts of retaliation have not extended the duration of a petitioner's sentence, he is not entitled to habeas relief); Cannon v. Dretke, C/A No. 02-1864, 2005 WL 562678 (N.D. Tex. Mar. 9, 2005) (“Because Petitioner has alleged no loss of good-time credits or denial of eligibility for release on mandatory supervision, he has stated no due process violation cognizable under 28 U.S.C. § 2254.”), Report and Recommendation adopted by 2005 WL 724473 (N.D. Tex. Mar. 30, 2005)).
Because it appears the challenged disciplinary action had no effect on the duration of Petitioner's sentence, the undersigned recommends the amended petition be dismissed for lack of subject matter jurisdiction under 28 U.S.C. § 2254.
3. Insufficient Allegations Under 42 U.S.C. § 1983
Out of an abundance of caution and because Petitioner alleges violations of his rights to due process and equal protection under the Fourteenth Amendment, the undersigned has considered whether the case may properly be brought pursuant to 42 U.S.C. § 1983. A review of Petitioner's amended petition (ECF No. 9) shows no valid constitutional claim under 42 U.S.C. § 1983. Petitioner lost telephone privileges for 30 days as a result of the disciplinary action. See South Carolina Department of Corrections, Inmate Search, https://public.doc.state.sc.us/scdc-public/ (last visited Dec. 12, 2019). A loss of telephone privileges for 30 days does not rise to the level of a constitutional violation. See Mabe v. Berrios, C/A No. 6:15-2573-RBH, 2017 WL 1135267, at *2 (D.S.C. Mar. 27, 2017) (providing “the loss of telephone privileges for 45 days does not amount to a constitutional violation”) (citing U.S. v. Alkire, No. 95-7885, 1996 WL 166400, at *1 (4th Cir. Apr. 10, 1996) (no constitutional right to the use of a telephone in prison); Hadley v. Peters, No. 94-1267, 1995 WL 675990, at *8 (7th Cir. 1995) (“The denial of telephone privileges for ten days is not a matter of constitutional dimension.”); Joyner v. Ozmint, C/A No. 3:09-2524-DCN-JRM, 2010 WL 3783167, at *4 (D.S.C. Sept. 22, 2010) (no protected life, liberty, or property interest in using telephone); May v. Baldwin, 895 F.Supp. 1398, 1409 (D. Ore. 1995) (brief suspension of television and telephone privilege does not amount to constitutional violation)).
Therefore, to the extent the amended petition may be construed as a complaint for a violation of constitutional rights under 42 U.S.C. § 1983, the undersigned recommends it be dismissed, as the harm suffered by Petitioner does not rise to the level of a constitutional violation.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge dismiss the amended petition with prejudice and without requiring Respondent to file a return.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).