United States District Court, D. South Carolina
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin, United States Magistrate Judge
matter is before the Court on Respondent's motion for
summary judgment. [Doc. 14.] Petitioner is a state prisoner
who seeks relief under 28 U.S.C. § 2254. Pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil
Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is
authorized to review post-trial petitions for relief and
submit findings and recommendations to the District Court.
filed this Petition for writ of habeas corpus on August 7,
2017. [Doc. 1.] On November 13, 2017, Respondent
filed a motion for summary judgment. [Doc. 14.] On November
14, 2017, the Court filed an Order pursuant to Roseboro
v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising
Petitioner of the summary judgment procedure and of the
possible consequences if he failed to adequately respond to
the motion. [Doc. 15.] On January 22, 2018, Petitioner's
response in opposition was entered on the docket. [Doc. 25.]
Accordingly, the motion for summary judgment is ripe for
a disciplinary hearing, Petitioner was convicted and
sentenced of (1) possession of a cell phone or type of
communication device; (2) use of or possession of narcotics,
marijuana, or unauthorized prescription drugs; and (3)
possession of a weapon. [Doc. 1 at 1; see also Doc.
14-2 at 1.] Petitioner asserts that he should not have been
charged with possession of a weapon because it was a ring and
not a weapon and because his roommate confessed that the ring
belonged to the roommate. [Id. at 5.]
Construction of Pro Se Petition
brought this action pro se, which requires the Court to
liberally construe his pleadings. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam); Loe v. Armistead, 582
F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are
held to a less stringent standard than those drafted by
attorneys. Haines, 404 U.S. at 520. Even under this
less stringent standard, however, the pro se petition is
still subject to summary dismissal. Id. at 520-21.
The mandated liberal construction means only that if the
court can reasonably read the pleadings to state a valid
claim on which the petitioner could prevail, it should do so.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999). A court may not construct the petitioner's legal
arguments for him. Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993). Nor should a court “conjure up
questions never squarely presented.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
of the Federal Rules of Civil Procedure 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.
Civ. P. 56(a). A fact is “material” if proof of
its existence or non-existence would affect disposition of
the case under applicable law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (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. When 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 (1962).
party seeking summary judgment shoulders the initial burden
of demonstrating to the court that there is no genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the movant has made this threshold
demonstration, the non-moving party, to survive the motion
for summary judgment, may not rest on the allegations averred
in his pleadings. Id. at 324. Rather, the non-moving
party must demonstrate specific, material facts exist that
give rise to a genuine issue. Id. Under this
standard, the existence of a mere scintilla of evidence in
support of the non-movant's position is insufficient to
withstand the summary judgment motion. Anderson, 477
U.S. at 252. Likewise, conclusory allegations or denials,
without more, are insufficient to preclude granting the
summary judgment motion. Id. at 248. “Only
disputes over facts that might ...