Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rojas-Parra v. Warden, FCI Bennettsville

United States District Court, D. South Carolina, Aiken Division

May 7, 2014

Ramiro Rojas-Parra, Petitioner,
v.
Warden, FCI Bennettsville, Respondent.

REPORT AND RECOMMENDATION

SHIVA V. HODGES, Magistrate Judge.

Ramiro Rojas-Parra ("Petitioner"), proceeding pro se, filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the decision rendered during a disciplinary hearing. Petitioner is a federal prisoner at Federal Correctional Institution in Williamsburg, South Carolina, serving a 78-month sentence rendered by the United States District Court for the Middle District of Florida. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(1). [Entry #12]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [Entry #13]. Petitioner filed a response. [Entry #15].

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion be granted.

I. Factual and Procedural Background

Petitioner filed this petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging the decision rendered during a disciplinary hearing resulting from incident report No. 2254015 prepared on January 9, 2012 ("Incident Report"), which alleged possession of contraband in the form of a cellular phone and stolen food. [Entry #12-1 at 4-6]. Petitioner asserts he should not have been convicted of the prohibited acts because there was no evidence that he ever actually or constructively possessed the contraband found in his cell, but that the contraband belonged to his cellmate. Because Petitioner's discipline included loss of Good Conduct Time, which impacts the duration of his sentence, this court has jurisdiction over this matter. Petitioner asks the court to "grant him relief from the present conditions of his incarceration, vacate the disciplinary action taken against him and order that he be returned to the federal prison closest to his family." [Entry #1 at 3]. Defendant stipulates that Petitioner has exhausted his administrative remedies pursuant to the formal Administrative Remedy Program of the Bureau of Prisons ("BOP"). [Entry #12 at 3].

The Incident Report indicated that during a random search of Petitioner's cell, prison staff found a cellphone, several cellphone related accessories, and two pieces of turkey salami that had been removed from the institution's Food Services Department. [Entry #12-1 at 4, § 11]. As a result, Petitioner and his cellmate were charged with the prohibited acts of Possession, Manufacture, or Introduction of a Hazardous Tool (code 108) and Possession of Stolen Property (code 226). [ Id. at §§ 9-10]. The Incident Report was suspended pending referral for criminal prosecution, which was declined on February 16, 2012, and the Incident Report was thereafter released, thereby resuming the disciplinary process. [ Id. at 6, § 27].

On February 22, 2012, Petitioner received a copy of the incident report [ id. at 4, §§ 14-16] and an investigation into the charges was conducted [ id. at 6, §§ 23-26]. During the investigation, Petitioner was advised of his rights and was given the opportunity to make a statement in his defense. [ Id. at 6, §§ 23-24]. The investigating official determined there was sufficient evidence to support the charges and referred the Incident Report to the Unit Discipline Committee ("UDC") for further review. [ Id. at 6, § 26].

On February 24, 2012, the UDC conducted a hearing. [ Id. at 4-5, §§ 17-19]. Petitioner was given the opportunity to make a statement and present documentary evidence at the UDC hearing. [ Id. ] Petitioner elected to make a statement in which he denied any knowledge about the contraband found in his cell. [ Id., § 17]. The UDC referred the matter to the Discipline Hearing Officer ("DHO") for further review. [ Id. at 4, §§ 18-19].

On February 24, 2012, Petitioner was given written notice of the DHO hearing [Entry #12-1 at 7] and of his rights at the DHO hearing. [Entry #12-1 at 8]. On March 14, 2012, the DHO conducted a hearing. [Entry #12-1 at 9]. Petitioner was provided with the opportunity to provide documentary evidence, make a statement, provide witness statements, and receive staff representation. [Entry #12-1 at 9-10]. Petitioner denied the charges and submitted a written statement. [ Id. ] The DHO considered all of the evidence provided at the hearing and determined, that based upon the greater weight of the evidence, Petitioner had committed the prohibited acts as charged. [Entry #12-1 at 11-13]. The DHO sanctioned Petitioner to 68 days loss of Good Conduct Time, forfeiture of 20 days non-vested Good Conduct Time, 60 days disciplinary segregation, loss of telephone privileges for 180 days, and loss of commissary privileges for 180 days. [ Id. at 13].

On March 28, 2012, a copy of the DHO report was delivered to Petitioner and he was advised of his right to appeal the DHO's decision. [ Id. ].

After administratively exhausting his remedies, Petitioner filed this action on or about June 11, 2013. [Entry #1].

II. Discussion

A. Motion to Dismiss and Motion for Summary Judgment Standards

To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support" the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs. Inc. v. Makor Issues & Rights, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.