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Clark v. Mosely

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

October 27, 2017

Victor Clark, Petitioner,
v.
Bonita Mosley, Respondent.

          ORDER AND OPINION

          RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE

         This matter is before the Court on the Report and Recommendation of the Magistrate Judge, recommending that the Court grant Respondent's motion for summary judgment and dismiss the petition for habeas relief under 28 U.S.C. § 2241. For the reasons set forth below, the Court adopts the Report and Recommendation.

         I. Background

         Petitioner is an inmate currently incarcerated at the Federal Correctional Institution in Edgefield, South Carolina. During the time relevant to this action, he was incarcerated at the D. Ray James Correctional Facility in Folkston, Georgia, where, on December 4, 2014, a prisoner fight occurred. A correctional officer observed Petitioner participating in the fight. Eventually, Petitioner was restrained and placed in the Special Housing Unit.

         On December 26, 2014, an investigating officer wrote an incident report citing the petitioner with two violations of the inmate discipline code arising from the fight on December 4th: Code 108 (possession of a weapon) and Code 201 (fighting). Petitioner received a copy the same day. The report was referred to the Unit Discipline Committee, which held a hearing on December 30, 2104. The Unit Discipline Committee recommended loss of 54 days good time credits, 180 days disciplinary segregation, and 6 months loss of commissary privileges. On December 30, 2014, the petitioner received advance written notice of a hearing before the Disciplinary Hearing Officer as well as a recitation of his rights at the hearing. The incident report was then briefly suspended, from January 10 to February 11, 2015, for an FBI investigation. The FBI declined to proceed with a criminal prosecution.

         Petitioner's hearing before the Disciplinary Hearing Officer occurred on February 17, 2015. A case manager appeared with Petitioner as his staff representative. The hearing officer found the Petitioner did commit the charged violations. For the Code 108 violation, the hearing officer imposed sanctions of 41 days loss of good time credits and six months loss of commissary and telephone privileges. For the Code 201 violation, the hearing officer imposed sanctions of 27 days loss of good time credits and six months loss of visitation privileges. The hearing report was delivered to Petitioner on February 26, 2015.

         Petitioner then filed an administrative appeal of the decision, asserting the incident report was not served on him in a timely manner. On April 9, 2015, the hearing report was remanded for rehearing. On May 7, 2015, the Unit Discipline Committee held a new hearing, and on May 12, 2015, Petitioner received a new Disciplinary Hearing Officer hearing. Petitioner again had the assistance of a staff representative. The hearing officer found Petitioner committed the Code 201 violation (fighting) but not the Code 108 violation (possession of a weapon). For the Code 201 violation, the hearing officer imposed sanctions of 27 days loss of good time credits and six months loss of visitation privileges-the same sanction imposed by the first hearing. The hearing report was delivered to Petitioner on June 24, 2015.

         Petitioner again appealed administratively, arguing the incident report was not served on him in a timely manner. On September 1, 2015, BOP's Southeast Regional Office denied the appeal, noting that although the report was not written and served until 22 days after the incident, Petitioner failed to show how the delay prejudiced him during the disciplinary process.

         After an unsuccessful appeal to BOP's Central Office, on January 23, 2017 Petitioner filed the present petition for habeas relief under § 2241, arguing the 22-day delay between the incident and service of the report violated his due process rights. Respondent moved for summary judgment on March 24, 2017. On September 25, 2017, the Magistrate Judge recommended summary judgment for Respondent. Petitioner filed objections on October 13, 2017.

         II. Legal Standard

         A. Report and Recommendation of the Magistrate Judge

         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 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).

         When a proper objection is made to a particular issue, "a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he district court's decision whether to consider additional evidence is committed to its discretion, and any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to introduce new evidence after the magistrate judge has acted are disfavored, " though the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v. Jackson, 831 F.Supp.2d 911, 914 (M.D. N.C. 2010) (listing cases).

         B. ...


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