United States District Court, D. South Carolina
RICHARD M. GERGEL, District Judge.
This matter is before the Court on the Magistrate Judge's Report and Recommendation ("R&R"), (Dkt. No. 39), recommending that this court grant Respondent's motion for summary Judgment (Dkt. No. 33). For the reasons herein, the Court ADOPTS the R & R and GRANTS Respondent's motion for summary judgment.
A. Factual History
Petitioner has been incarcerated at the Federal Correctional Institution ("FCI") Williamsburg located in Salters, South Carolina, since August 27, 2008. While at FCI Williamsburg he was released on a federal writ to the Miami Federal Detention Center ("FDC Miami") from September 6, 2011, to April 30, 2012, and subsequently returned to FCI Williamsburg. The disciplinary action underlying this petition occurred at FDC Miami.
On March 21, 2012, at approximately 4:45 p.m., an FDC Miami Special Investigative Services ("SIS") technician arrived at G-East Housing Unit to pick up the Petitioner for a urine test in accordance with the Random Inmate Selection Report for March. After a verbal dispute with the technician regarding the frequency with which he was being tested, Petitioner was returned to his cell without being tested.
Later that same day, the technician prepared an incident report charging the Petitioner with Refusing to Provide Urine Sample and Insolence Toward a Staff Member in violation of Codes 110 and 312, respectively (Dkt. No. 32-1).
B. Procedural History
Petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging several due process violations arising from the disciplinary hearing on his Refusing to Provide a Urine Sample and Insolence Toward a Staff Member charges. (Dkt. No. 1). Pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(c) DSC, the matter was automatically referred to a United Sates Magistrate Judge for pretrial proceedings. On November 6, 2013, Respondent filed a motion for summary judgment asking that all of Petitioner's claims be dismissed. (Dkt. No. 13). Petitioner filed a response in opposition to the motion. (Dkt. No. 16). The Magistrate Judge then issued an R & R recommending Respondent's motion to be granted as to Petitioner's claim of due process violations stemming from his rehearing on September 20, 2012, and denied as to Petitioner's claim that the Insolence charge should be dismissed, that he was placed in confinement twice for the same charge, and that he was retaliated against for exercising his right to appeal by being placed twice in the SHU for the same incident. (Dkt. No. 18). Respondent then filed objections to the R&R. (Dkt. No. 20). Petitioner did not file objections to the R & R. The Court then entered an order adopting the R & R, finding that there was a genuine issue of fact on the question of whether Petitioner's due process rights were violated when he was not informed of his rights to a staff representative and to present witnesses at the rehearing. (Dkt. No. 23).
On May 8, 2014, Petitioner filed a motion for summary judgment (Dkt. No. 31) and Respondent filed a response. (Dkt. No. 32). On May 29, 2014, the Court entered an order denying Petitioner's motion for summary judgment as it determined (1) there was a genuine dispute as to whether Petitioner was informed of his rights to a staff representative and to present witnesses and (2) the Petitioner does not have a due process right to present video evidence to a DHO officer. (Dkt. No. 34).
On May 19, 2014, the Discipline Hearing Officer who was at the time handling Petitioner's case for FCI Williamsburg, after being advised by counsel of this Court's Order, held a rehearing "in order to cure any due process issues." (Dkt. No. 33 at 2; 32-1 at 4-7). Prior to that hearing, Petitioner was informed of his right to have a staff representative and to call witnesses, and he exercised his right to call witnesses at the hearing and requested, unsuccessfully, access to surveillance video footage of the incident. ( Id. ).
On May 27, 2014, Respondent filed a second motion for summary judgment, alleging that earlier due process issues from the first rehearing were alleviated by the second hearing and that there existed "some evidence" to support the DHO's finding that the Petitioner had violated Code 312, Insolence Toward a Staff Member. (Dkt. No. 33). On June 30, 2014, Petitioner filed a response in opposition to the motion. (Dkt. No. 37). The Magistrate Judge then issued an R & R recommending Respondent's motion for summary judgment (Dkt. No. 33) be granted. Neither party filed objections to the R & R.
II. Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the R & R or specified proposed findings or recommendations to which objection is made. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed.R.Civ.P. 72(b). As to portions of the R & R to which no specific objection has been made, this Court "must only ...