Opinion
2:22-cv-04293-MGL-MGB
06-20-2023
Maurice Baum, Petitioner, v. Warden Jansen, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Maurice Baum (“Petitioner”) has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, challenging an administrative disciplinary action he received while incarcerated at the Federal Correctional Institution (“FCI”) Edgefield. (Dkt. No. 1.) Currently before the Court is Respondent's Motion for Summary Judgment. (Dkt. No. 12.) 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. The undersigned recommends that Respondent's Motion be granted.
BACKGROUND
On May 5, 2020, while incarcerated at FCI Edgefield, Petitioner allegedly had a tobacco product and a USB phone charger in his cell. Incident Report Number 3395174, which charges Petitioner with possessing a hazardous tool (phone charger) in violation of Code 108 and possessing a non-hazardous tool (tobacco) in violation of Code 331, describes the offenses as follows:
On 05-05-2020 at approximately 0830 Hours, I, CO J. READY, conducted a random pat search of an inmate BAUM, Maurice (REG#: 57082-056) outside of his cell, Unit B2 Cell 202, whom BAUM is the only inmate assigned to that cell. In his right pocket, I discovered a brown paper towel that appeared to have several
items wrapped inside of it. Inside of the brown paper towel were (7) individually wrapped white pieces paper of what appeared to be a partially cut cigarette in each that contained a brown leafy substance. There was also (1) partial loose cigarette inside of the brown paper towel. I confiscated the items and began a cell search of Unit B2 Cell 202. During the search, I also located a White USB Phone Charger inside of the light fixture that was plugged into a wall socket that was wired into the light fixture. A further search of the room revealed no further contraband. All items were later turned over to SIS. SIS advised that the brown leafy substance had tested negative for any drugs and was a tobacco product. No further action was taken at this time.(Dkt. 12-1 at 3.)
Petitioner received a copy of the incident report on May 5, 2020. (Id.) A staff member advised Petitioner of his rights on the same day. (Id. at 3-5.) At that time, Petitioner stated, “I don't have a phone nor a charger, but the tobacco is mine.” (Id. at 5.) A Unit Discipline Committee (“UDC”) hearing was held on May 7, 2020, at which time Petitioner was afforded an opportunity to make a statement and supply evidence on his behalf. (Id. at 4.) The UDC referred the charges to the Inmate Discipline Hearing Officer (“DHO”) for further consideration. (Id.)
According to the affidavit of Discipline Hearing Officer C. Nevils, Petitioner received a discipline hearing before the DHO on May 10, 2020. (Dkt. No. 12-2 at 1.) “After Petitioner filed an administrative remedy, I [C. Nevils] was instructed to conduct a new hearing.” (Id.) A second UDC hearing was held on October 6, 2020. (Dkt. No. 12-1 at 12.) At this hearing, Petitioner stated he had “no comment.” (Id.) The UDC referred the charges to the DHO for further consideration. (Id.)
On October 6, 2020, Petitioner received a copy of Notice of Discipline Hearing Before the DHO and Inmate Rights at Discipline Hearing. (Id. at 15, 17.) Petitioner indicated he did not wish to have a staff representative or any witnesses. (Id. at 15.) On October 20, 2020, Petitioner received a rehearing before the DHO. (Id. at 19.) The DHO Report identifies C. Nevils as the Disciplinary Hearing Officer and indicates that during this hearing, Petitioner was afforded the opportunity to make a statement, have a staff representative, provide evidence on his behalf, have witnesses appear, or present written statements of unavailable witnesses. (Id. at 19-22.) Petitioner waived his right to a staff representative and witnesses.(Id. at 19-20.) Petitioner spoke in his defense, stating that “the report is not true.” (Id. at 21.) He “denied the charge of code 108, stating it [the phone charger] must have been there when I moved into that cell,” and he “admit[ted] to the charge of code 331 [tobacco possession].” (Id.)
While the DHO Report specifically shows that Petitioner “waived [his] right to witnesses,” under “summary of inmate statement” it also states Petitioner “did request a witness to assist you in preparing for this hearing.” (Dkt. No. 12-1 at 19-20.) C. Nevils avers that “[t]his was in error, and at no time did Petitioner request a witness.” (Dkt. Nos. 12-1 at 19-20; 12-2 at 1.) C. Nevils further avers that “even if Petitioner had made this request, it would have been denied, as a witness may be called to present evidence at a hearing, but would not have been provided to assist in preparation for the hearing.” (Dkt. No. 12-2 at 1-2.) Petitioner does not dispute C. Nevils' account of this issue. Accordingly, the undersigned finds that the record indicates Petitioner waived his right to witnesses at the DHO rehearing.
In addition to the incident report and the investigation, the DHO considered Petitioner's statements and photos of the confiscated items. (Id. at 20-21.) The DHO found that the incident report
did not adequately support the prohibited act of possession of a hazardous tool, code 108. At the DHO's discretion, the code 108, was changed to Conduct which disrupts the security or orderly running of an institution, code 199 (Most likely possession) Possession of a hazardous tool, code 108. The DHO finds you committed the prohibited act of Conduct which disrupts the security or orderly running of an institution, code 199 (Most like) possession of a hazardous tool, code 108 and possession of a non-hazardous tool[,] code 331.(Id. at 20 (verbatim).)
After consideration of all the evidence, the DHO found that “the greater weight of the evidence” shows that Petitioner had committed the prohibited acts. (Id. at 20-21.) In support, the DHO noted, inter alia, that the inmate handbook provides that inmates will be held responsible for all contents of their locker, room, and area.” (Id. at 21.) The DHO outlined the sanctions to be imposed and the reasons for the sanctions imposed. (Id. at 21-22.) Specifically, the DHO sanctioned Petitioner to the disallowance of 41 days of good conduct time, 30 days of disciplinary segregation, and 60 days loss of commissary and email privileges. (Id. at 21.) The DHO gave Petitioner a copy of the DHO Report on February 1, 2023. (Id. at 22.)
C. Nevils avers that “DHO reports are maintained in a computer system called DARTS.... The Amended Report that was originally scanned did not include the date of service of the report. Therefore, out of an abundance of caution, the report was re-served on February 1, 2023.” (Dkt. No. 1-2 at 2.) Petitioner does not mention the service date of the DHO Report in any of his briefings, and he does not seek habeas relief on this issue. Regardless, there is no evidence Petitioner has been prejudiced from any delay in his receipt of the DHO Report-Respondent does not assert exhaustion of administrative remedies as a defense to this action. And, as discussed, within, Petitioner has received the due process required under Wolff v. McDonnell, 418 U.S. 539 (1974). Accordingly, Petitioner cannot bring any due process claim on basis. See Patterson v. Bolster, No. 3:18-cv-854-HEH, 2020 WL 520588, at *7 (E.D. Va. Jan. 31, 2020) (rejecting due process claim based on “delayed receipt of the DHO reports”; “It is not the mere fact of the government's delay that violates due process, but rather the prejudice resulting from such delay.”); see also Griffin v. Ebbert, 640 Fed.Appx. 181, 184 (3d Cir. 2016) (concluding that there was no due process violation when an inmate first received the DHO's report during the litigation of his habeas petition, eighteen months after his hearing, “because [the inmate] had not demonstrated that he suffered any prejudice as a result of the eighteen-month delay, [and] he had received the process he was due under Wolff”).
On November 29, 2022, Petitioner filed the instant § 2241 petition. (Dkt. No. 1.) On February 16, 2023 Respondent filed a Motion for Summary Judgment. (Dkt. No. 12.) By order of this Court filed on February 16, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the possible consequences if he failed to respond adequately to the motion for summary judgment. (Dkt. No. 14) On March 2, 2023, Petitioner filed his response in opposition to Respondent's motion (Dkt. No. 15), and Respondent did not file a reply brief. The motion is ready for review.
STANDARDS
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 82 S.Ct. 993, 8 L.Ed.2d 176 (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, 92 S.Ct. 1079, 1080, 31 L.Ed.2d 263 (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 Petitioner cannot establish that his due process rights were violated through the decision rendered by the DHO. (Dkt. No. 12.) In response, Petitioner claims that his petition should survive dismissal because there was insufficient evidence to support the DHO's findings. (Dkt. No. 15.)
A. Due Process in Prison Disciplinary Proceedings
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 in regards 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 and 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 so as 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 DHO rehearing. Petitioner was offered the opportunity to present evidence in the form of documents or witnesses and to have the assistance of a staff representative-Petitioner chose not to exercise those rights at the hearing. He also made a statement denying that the phone charger was his and admitting to the tobacco. 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. 12-1 at 19-22.)
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 his response brief, Petitioner argues that Respondent “did not prove petitioner was in ‘possession' of a hazardous tool.” (Dkt. No. 15 at 2.) According to Petitioner, he “stated to the DHO that the inmate who was in that same cell was caught with a cellphone 108-possession of a hazardous tool.” (Id.) Petitioner claims “[i]t is very capable that if he [the other inmate] had a cellphone, a cellphone charger is a necessary compatible tool to have with it. There are no official documents stating the cell had been searched.” (Id.)
Petitioner's disagreement with the DHO's findings here does not warrant habeas relief. Indeed, the “mere fact that Petitioner has some evidence with which he could craft a defense to the disciplinary charges is wholly irrelevant in a § 2241 petition.” 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 by, 2018 WL 321549 (D.S.C. Jan. 8, 2018). Rather, the Court's focus here 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. CA 1:13-3347-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 records of the disciplinary action establish that there was “some evidence” to support the DHO's decision. Hill, 472 U.S. at 455-56. The DHO expressly considered Petitioner's claim that the cell phone charger “must have been there when [Petitioner] moved into that cell,” and noted that Petitioner's
inmate handbook states under the Searches heading; You will be held responsible for all contents of your locker, room, area, and found in your possession. If any
unauthorized items, or "CONTRABAND, are found during any of the searches, they will be confiscated and you will be subject to disciplinary action.(Dkt. No. 12-1 at 21.) The DHO concluded that Petitioner committed the prohibited acts as charged “base[d] on the greater weight of the evidence in the officer's written account of the incident and [p]hotos.” (Id.) Based on the foregoing, the undersigned 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 Ali v. Hooks, No. 5:17-HC-2171-FL, 2019 WL 1244703, at *4 (E.D. N.C. Mar. 18, 2019) (noting “the DHO considered and rejected petitioner's argument that the cell phone was planted in his cell or belongings” and finding “some evidence” supported DHO's findings).
In sum, Petitioner's constitutional rights were not violated because he received all the process due him under the standards established in Wolff, 418 U.S. at 564-66, and Hill, 472 U.S. at 455-56. Therefore, it is recommended that the DHO's decision be upheld.
CONCLUSION
Accordingly, the undersigned Magistrate Judge RECOMMENDS that the Motion for Summary Judgment (Dkt. No. 12) 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).