Opinion
C. A. 5:20-3797-MGL-KDW
12-01-2021
Nuru Yakubu, Petitioner, v. Warden Phelps, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Nuru Yakubu (“Petitioner”), proceeding pro se, filed this action seeking habeas corpus relief under 28 U.S.C. § 2241. Respondent filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment on July 1, 2021. ECF No. 27. As Petitioner is proceeding pro se the court entered an order on July 2, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the importance of a motion for summary judgment and of the need for him to file an adequate response. ECF No. 28. On August 16, 2021, the court granted Petitioner an extension to respond to Respondent's motion, and Petitioner filed a timely Response in Opposition to Respondent's Motion to Dismiss and/or Motion for Summary Judgment on September 20, 2021. ECF Nos. 33, 35.
Because the court has considered matters outside of the pleadings, the undersigned considers the motion as one for summary judgment. The Roseboro order issued to Petitioner contained an explanation of the summary judgment procedures.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's motion for summary judgment.
I. Factual and Procedural Background
On July 12, 2020, Petitioner received a copy of an incident report charging him with phone abuse, disrupt monitoring. ECF No. 27-1 at 4. The report indicated Officer Screws reviewed a translation of a call placed by Petitioner on January 12, 2020, and during the phone call Petitioner asked the callee to call someone for him. Id. The report indicated the callee was heard speaking to another person on a second phone informing them that Petitioner was trying to reach them. Id. The report states Petitioner tells the callee to tell the third party to send him an address in the morning because his computer was not working. Id. The report indicated the callee relayed the message to the third party. Id. In response to the incident report, Petitioner stated his wife called someone on a second phone but he did not speak to the person. Id. at 5. The charge was referred to the Disciplinary Hearing Officer (“DHO”) for further handling. Id. Petitioner was given written notice of a disciplinary hearing and the inmate rights at a disciplinary hearing on January 13, 2020. Id. at 9-10. Petitioner indicated he wanted a staff representative to assist him during the hearing, but he did not wish to call any witnesses. Id. at 9.
The DHO hearing was held on January 23, 2020. Id. at 11-14. Petitioner was present and advised of his rights, which he indicated he understood. Id. at 11. Petitioner waived his right to a staff representative, did not request any witnesses, and stated he had no comment on the charges. Id. The DHO considered the incident report, the officer's written report, and the Trufone and Truview documents and determined Petitioner was guilty of phone abuse, disrupt monitoring. Id. at 12-13. The DHO sanctioned Petitioner to three months loss of phone privileges and 27 days disallowance of good conduct time. Id. at 13. A copy of the DHO's decision was delivered to Petitioner on July 9, 2020. Id. at 14. Petitioner appealed his January 23 disciplinary conviction to the Southeast Regional Office (“SERO”) noting he did not receive a copy of the DHO report until July 9, 2020. Id. at 27-28. The SERO remanded Petitioner's appeal back to his institution for a rehearing by the DHO. Id. at 30.
The DHO held a second hearing on November 6, 2020. Id. at 15. Petitioner was present and advised of his rights, and his requested staff representative Officer Bryant appeared on his behalf. Id. at 15. Petitioner waived his right to witnesses and he informed the DHO he waived his right to appear. Id. at 15-16. The DHO considered the incident report, the officer's written report, and the translation transcript, and found Petitioner guilty of phone abuse, disrupt monitoring. Id. at 16-17. The DHO sanctioned Petitioner to loss of phone privileges for three months and 27 days disallowance of good conduct time. Id. at 17. A copy of the DHO's decision was delivered to Petitioner on November 30, 2020. Id. at 18.
Petitioner argues his due process rights were violated when he did not receive a copy of the DHO report and he was therefore unable to appeal his conviction. ECF No. 1 at 3, 7-8. Petitioner seeks to expunge the disciplinary conviction from his record and to restore his lost good time. Id. at 9.
II. Discussion
A. Standard for Summary Judgment
Summary judgment is appropriate “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). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. 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.” Id. at 248. The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56.
B. Analysis
Petitioner claims his due process rights were violated when the DHO refused to provide him a written copy of his findings and failed to present in writing the evidence the DHO officer relied on as the basis for his decision. ECF No. 1 at 4-8.
Certain procedural safeguards apply when loss of statutory good time credit is at issue. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974). In Wolff, the Supreme Court set out the requirements for due process in prison disciplinary hearings:
1. Giving the prisoner written notice of the charges at least 24 hours before he appears for his disciplinary hearing;
2. Providing the prisoner a written statement by the fact finder(s) as to the evidence relied on and reasons for the disciplinary action;
3. Allowing the prisoner to call witnesses and present documentary evidence in his defense, when permitting him to do so will not be an undue hazard to institutional safety or correctional goals;
4. Permitting the prisoner the aid of a fellow prisoner, or if that is forbidden, aid from staff or a competent inmate designated by staff, if the prisoner is illiterate or the complexity of the issue makes it unlikely that the prisoner will be able to collect and present the evidence necessary for an adequate comprehension of the case; and
5. Providing impartial fact finders.Id. at 563-72. Additionally, the DHO findings revoking a prisoner's good time credit must be supported by “some evidence in the record.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985).
Respondent argues Petitioner's claims concerning his January 23, 2020 disciplinary hearing are moot because he was given a DHO rehearing on those charges on November 6, 2020. ECF No. 27 at 8-9. Respondent contends the rehearing cured any alleged procedural error from the first hearing. Id.
In response, Petitioner contends the DHO rehearing did not cure the violation of his due process rights. ECF No. 35 at 2-3. Petitioner argues he lost three months of phone privileges which could not be restored by the November 6 rehearing as he had already served the length of the sanction. Id.
The undersigned finds Petitioner has failed to show his due process rights were violated by the late receipt of the DHO report. The undersigned notes Petitioner was granted a rehearing of the phone abuse, disrupt monitoring charge on November 6, 2020, and received a copy of the DHO rehearing report on November 30, 2020. As such, Petitioner had the opportunity to appeal the loss of his good time credits and therefore cannot establish a violation of his due process rights from the late receipt of the January DHO report. Petitioner also argues his loss of telephone privileges violated his due process rights because he served this sanction prior to his rehearing. However, a loss of phone privileges is not a protected liberty interest under due process, and therefore constitutional due process rights are not at issue. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974); Lennear v. Wilson, 937 F.3d 257, 268 (4th Cir. 2019). See also, U.S. v. Alkire, 82 F.3d 411 (4th Cir. Apr. 10, 1996) (noting no constitutional right to the use of a telephone in prison); Chestnut v. Green, No. 3:10-1559-TLW, 2011 WL 2119306, at *4 (D.S.C. Apr. 5, 2011) (reviewing cases noting the brief suspension of telephone privilege does not amount to constitutional violation), report and recommendation adopted, 2011 WL 2133534 (D.S.C. May 27, 2011). The undersigned recommends Respondent's Motion for Summary Judgment be granted and the petition be dismissed with prejudice.
III. Conclusion
For the foregoing reasons, the undersigned recommends Respondent's Motion for Summary Judgment, ECF No. 27, be granted and the petition for writ of habeas corpus be denied and dismissed with prejudice.
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
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).