Opinion
C. A. 4:23-2473-HMH-TER
03-26-2024
JAMES C. WHALEY, Petitioner, v. NICK GALLUM, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
The Petitioner, James C. Whaley, (“Petitioner/Whaley”), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on June 5, 2023. Petitioner filed an amended petition on August 23, 2023. (ECF No. 22). On October 27, 2023, the Respondent filed a motion for summary judgment. (ECF No. 43). The undersigned issued an order filed October 30, 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. 44). On November 9, 2023, Petitioner filed a response. (ECF No. 47). On November 16, 2023, Respondent filed a reply. (ECF No. 48). Petitioner continued to file sur-replies and supplements. (ECF Nos. 49-52).
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.
A Report and Recommendation was entered in this case on July 13, 2023, recommending that the petition be dismissed without prejudice and without requiring the respondent to file a return. The district judge declined to adopt the report and recommendation and remanded the matter back to the undersigned. (ECF Nos. 9 and 13).
Neither the Federal Rules of Civil Procedure nor the Local Rules provide for the ability to file a sur-reply as a matter of right. Therefore, the sur-replies will not be addressed.
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 confined at the Aiken County Detention Center (“ACDC”) pursuant to order of the Honorable Courtney Clyburn-Pope, Chief Administrative Judge for the 2nd Judicial Circuit, pending an evaluation of Petitioner pursuant to the Sexually Violent Predator Act (S.C. Code §§ 44-48-60, et seq.). (See “Order For New Evaluation”, ECF No. 42-1 at 1). On August 23, 2023, Petitioner filed his amended petition pursuant to 28 U.S.C. § 2241, challenging disciplinary treatment consisting of disciplinary confinement and loss of certain privileges from two disciplinary hearings at the ACDC. In his amended petition, Petitioner asserts that he was not given advanced written notice of his charged misconducts and not provided with proper explanation of the evidence against him, as to two disciplinary hearings. As to one charge, Petitioner argues that he did not receive a hearing. Therefore, Petitioner alleges a violation of his due process rights based on his disciplinary detention and/or the loss of certain privileges for a set time. Specifically, Petitioner sets forth the following grounds in his amended petition, quoted verbatim:
This Court has held that a civilly committed individual under the Sexually Violent Predator's Act, SC Code §§ 44-48-60, et seq., most closely resemble the custody status of pretrial detainees. Martin v. Correct Care Recovery Sols., No. 4:22-CV-2042-HMH-TER, 2023 WL 5782339, at *10 (D.S.C. July 17, 2023), report and recommendation adopted, No. CV 4:22-2042-HMH-TER, 2023 WL 5199718 (D.S.C. Aug. 14, 2023), appeal dismissed sub nom. Martin v. Gaffney, No. 23-6870, 2024 WL 909853 (4th Cir. Jan. 2, 2024) quoting Treece v. McGill, 2010 WL 3781695, at *4 (D.S.C. 2010); see also Lasure v. Doby, 2007 WL 1377694, at *5 (D.S.C. 2007).
GROUND ONE: Amdt. V, XIV; S.C. 2002(b); Guide p. 10, Due Process.
SUPPORTING FACTS: Neither Buggs, White, nor proxy provided “Ze” an advance written notice of the charge/misconduct. Circa 5-minutes prior to the hearing White gave Ze (verbal) first knowledge of a misconduct, but not what this misconduct was alleged to be. Ze could not prepare a defense. Self-evidence, (ECF No. 17-1 p. 7) Buggs nor White made a written statement as to the evidence relied on nor reasons for the disciplinary action; nor what Ze was found guilty of. Stark forwarded the appeal of this DRBF (submission is made as a grievance) which was denied sub silentio and due to the manner in which Stark responded, the appeal option was unavailable. Notable; during the hearing, Ze showed both Buggs and White how severe Ze's eczema was and informing them medical staff is being sued for inadequate/nontreatment; there were only two DRB members “DRBM” there slots show on the DRBF form - the quorum was not met; Buggs stated that Disciplinary Detention “D/D” time had started prior to the hearing; and is evident by “review date' which inter-alia is the end of sanctions. The aggregate of 30 days D/D was served. MR# 23DS-1595
GROUND ONE; Amdt. V, XIV; S.C. 2002 (b); Guide p. 10, Due process.
SUPPORTING FACTS: Neither Buggs, Martinez [sic], (or more properly, Martinez), nor proxy provided Ze an advance written notice of the charge/misconduct. First knowledge of a misconduct occurred
circa 1.5 hours prior to the hearing; (noting that only circa 5-minutes notice was given that the hearing would occur). While escorting Ze; Ze stated that to Martinez “[y]'all don't believe in due process huh?” Martinez replied, “[d]ue process - what's that?” though later he claimed “[p]hsyic - I know what it is.” Ze could not prepare a defense. During the hearing, responding to Ze, Buggs stated that they do not give out copies of misconduct anymore. Incorporate by reference, ECF No. 17-1 p. 4, paragraphs 3 and 4. With a modification; incorporate by reference, ibid. paragraph 5 Removing: “(see in supra Sec. III. Part (B))” and inserting three at, ((See Part III., 2.1) above).
GROUND TWO: Admission to violating Amdt. XIV due process, equal protection and S.C. minimum standards.
SUPPORTING FACTS: Ze has entered against Buggs nil dicit default in which she has admitted wrongdoing. Her admissions are: incorporate by reference, Whaley v. Kudron, No. 4:22-cv-4469-JFA-TER, ECF No. 19-4 pp. 4-5 Part V. “CLAIM MED-3”; (Noting for the purposes of this habeas; declaratory judgement against all named persons apply - Buggs, White, Martinez, Gallam or Arthurs). DRBF CIRCA 05/31/2023 6
GROUND ONE: Amdt. V. XIV; S.C. 2002 (b); Guide p. 10, Due Process
SUPPORTING FACTS: Neither Baker, Bradley, nor proxy provided Ze an advance written notice of the charge/misconduct Ze was asked via proxy how does Ze plead (to no specific rule violation stated) and a hearing occurred circa 20 minutes later. Ze could not prepare a defense. Self-evidence, (ECF No. 17-1 p. 25) Baker nor Bradley made a written statement as to the evidence relied on nor reasons for the disciplinary action; nor what Ze was found guilty of. Circa a few hours after the hearing, Deputy Prince told Ze that he does not know why they have DRB hearings, that the DRB always believes anything officer(s) say; and, that it is pointless to grieve/appeal and useless to go to court... because “you're in jail.” The DRBF shows three slots for DRBM -the quorum was not met. Consistent with how the DRBF review date is applied; punishment began prior to the hearing. Bradley was not present mind during the hearing. Despite the fact that he DRBF shows sanction soley of “30D/D” Baker and Bradley did effect the continued deprivation of Ze's ability to purchase medicines, e.g. hydrocortisone, and food/candy/coffee.
The medicine category in particular had no bearing on any valid governmental interest whatsoever. Ze did attempt an appeal -which goes through a grievance; Butler, whom is asserted as unauthorized, denied the ability to appeal and Ze could not utilize the grievance, appeal button, because
dispute policy (The ACSO ACDC Inmate Guide attached herewith as Exhibit A) allowing two business days to appeal, the ACDC Kiosk system allows only 24-hours. (noting that the “GUIDE” (Exhibit A) is posted electronically on the Kiosk- English only; the Spanish version is a different policy).
Neither Baker nor Bradley bothered with filing out a case number on the DRBF. Baker has done this on more than one occurrence, e.g., on 06-072023 (Baker and Hill v. Inmate Keith Jeno, DRBF is on all fours - save the he had 15 D/D). ZE'S REC. CIRCA 07/24/2023
GROUNDS: Art. IV s. 2, Amdt. V, XIV due process, equal protection; abuse of power.
SUPPORTING FACTS: The late night of 07/23/2023 early morning of 07/24/2023 Deputy Nicholson told Ze that he had taken Ze's recreation for “two days” which indeed occurred despite the fact that during the day of 07/24/2023 Ze told Cpl. Potts via intercom that Ze wanted to speak to the shift supervisor about Ze's rec. being taken, (no supervisor came). Nicholson did not provide Ze with an advance written notice of a charge nor did a hearing occur. Ze lost 2-days of out of cell recreation/exercise, exercise of Amdt. 1. Ze finished rec. long before these occurrences. Ze has been on administrative segregation or
separation circa 08/04/2021 - hereto ongoing. Ze's conditions of confinement are substantially similar or identical to persons on D/D. (Solely based on that classification or status, Ze has been deprived of privileges e.g., a tablet, hair cuts). Inter-alia Ze is a constate state of punishment. Nicholson erred and over reached his power by taking Ze's rec. for 2 days and in addition to the other violations.(ECF No. 22 at 1-7)(errors in original).
Petitioner requests that the court “order the expungement of all records of the above events at 120 days or (the conclusion of civil action(s) on these issues that are currently active or not filed within the 120 days, whichever comes last.” (Quoted verbatim) (ECF No. 22 at 7). Petitioner also requests cost and fees for this action. Id.
In the motion for summary judgment, Respondent argues that “Petitioner's claims are not the type permissibly alleged in seeking federal habeas relief. Petitioner's claims concerning disciplinary rulings of the detention center and the resulting conditions of confinement fail to assert cognizable grounds for relief under §2241. Moreover, his Petition fails to demand habeas relief, and instead impermissibly seeks expungement and monetary damages. Petitioner's action is akin to a 42 U.S.C. §1983 claim, which Petitioner has already separately filed, and this action should therefore be denied.” (ECF No. 42 at 11). Further, Respondent asserts that Petitioner's claims of violations of due process concerning disciplinary proceedings represent internal detention center rules that have not impacted the existence or duration of Petitioner's confinement. Therefore, Respondent argues that federal habeas due process does not attach in absence of an impact upon good time credits or the duration of incarceration. Respondent contends that Petitioner's claims do not suggest that he has suffered any consequence as it relates to his liberty interests and his current confinement is related to his sexually violent predator evaluation, not his prior completed sentence. Respondent asserts that “[f]ederal habeas relief, whether it be through §2241 or §2254, can only rectify the unlawful custody of a petitioner, but Petitioner's claims do not challenge the basis for his custody, nor does he even seek relief from state custody. His Petition is simply not a federal habeas action and should be dismissed.” (ECF No. 42 at 13).
Petitioner filed a response entitled “Response to Summary Judgment; Motion to Strike; Motion to Amend Relief(Amendment incorporated).” (ECF No. 47). In this response, Petitioner asserts that it is a proper §2241 because his disciplinary convictions are considered “punishment” to implicate a protected liberty interest.
Petitioner has not filed a motion to amend pursuant to the Federal Rules of Civil Procedure. Petitioner filed an amended petition on August 8, 2023. Therefore, any additional amended allegations raised in the response (ECF No. 47) will not be considered.
DISCUSSION
Respondent argues that the court should grant the motion for summary judgment on all claims raised in the Petition. (ECF No. 42). Specifically, Respondent contends that Petitioner's claims are not cognizable under § 2241 because they do not affect the fact or duration of his confinement. [Id. at 2-4.] The Court agrees.
In reviewing an inmate's petition for habeas relief under § 2241, a Court must consider whether the petitioner's custody “violates the Constitution, laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21 (1975). A § 2241 petition is the appropriate method for a prisoner to challenge the fact, or length, of his confinement, but is generally not appropriate for challenges to the conditions of that confinement. See Preiser v. Rodriguez, 411 U.S. 475, 498-500 (1973). Thus, as this Court has held: “[H]abeas petitions are only appropriate where success in [the habeas] action would necessarily demonstrate the invalidity of the confinement or its duration.” Pinkney v. U.S. Dept of Justice, 2009 WL 277551 (Feb. 9, 2009) at *2, citing Wilkinson v. Dotson, 544 U.S. 74 (2005). While a prisoner may seek “immediate release or a speedier release from” confinement through a habeas action, a § 2241 claim is properly raised only when a petitioner asserts the implication of a liberty interest. See Preiser, 411 U.S. at 498. In cases of disciplinary proceedings, when a petitioner challenges a sanction that results in the loss of good time credits, this type of action “at its core seeks to shorten the length of his confinement” and accordingly invokes a liberty interest and properly sounds in habeas. Royster v. Polk, 299 Fed.Appx. 250 (2008) quoting Preiser at 489. In cases where no liberty interest is implicated, relief is not available under § 2241.
Prison disciplinary proceedings are not criminal prosecutions, and the law is well established that prisoners therefore do not enjoy “the full panoply of due process rights [in prison disciplinary proceedings that are] due a defendant in ... [criminal] proceedings.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Only in cases where a disciplinary sanction impacts the duration of an inmate's sentence is a protected liberty interest in the inmate's release from confinement implicated, thereby triggering the minimal due process guarantees enumerated by the Supreme Court in Wolff. Significant, for purposes of the instant case, is the fact that the Supreme Court has not extended such procedural due process requirements to a disciplinary hearing where only the loss of minor privileges is at stake. See Wolff at n. 19. Sanctions that do not implicate a liberty interest because they do not impact the duration of confinement are therefore not properly raised in a § 2241 petition.
In this case, Petitioner challenges the process of his disciplinary conviction. Petitioner concedes that the duration of his sentence has not changed but argues that he was “punished” by the disciplinary convictions and lost privileges which implicates a liberty interest regardless of whether or not he lost good time credits or extended his sentence. The factual allegations contained in his Petition do not raise an issue that affects the duration of Petitioner's confinement. As such, it does not state a claim for relief under § 2241 but relates to conditions of confinement. See Thompson v. Entzel, No. 5:19-cv-11, 2019 WL 4794742, at *6 (N.D. W.Va. Sept. 6, 2019), Report and Recommendation adopted 2019 WL 4781873 (N.D. W.Va. Sept. 30, 2019), aff'd, 801 Fed.Appx. 139 (4th Cir. 2020). While Whaley's placement in disciplinary confinement and/or restricted privileges as a result of disciplinary proceedings implicate a protected liberty interest entitling him to due process as found by the district court, a §2241 habeas action is not the proper vehicle to bring these claims. As previously stated, a §2241 petition is appropriate where a prisoner challenges the fact or length of his confinement, it is not available to challenge the conditions of that confinement. See Preiser v. Rodriguez, 411 U.S. at 499-500. The factual allegations of this petition do not raise an issue that affects the duration of the petitioner's confinement, because the petitioner did not lose good time credit in the disciplinary process. A §1983 action would be the proper vehicle to bring these issues to determine if Whaley, as a pretrial detainee, was provided with the minimum due process requirements for prison disciplinary proceedings. See Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974)(establishing the minimum due process requirements for prison disciplinary proceedings). Accordingly, Petitioner's claims are not properly cognizable through a § 2241 petition.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 43) be GRANTED and this claim dismissed.
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 2317
Florence, South Carolina 29503
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).