United States District Court, D. South Carolina
James L. Roudabush, Jr., Petitioner,
Warden FCI Edgefield, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin, United States Magistrate Judge
matter is before the Court on Petitioner's motion for
recusal [Doc. 15] and Respondent's motion for summary
judgment [Doc. 16]. At the time of the filing of his
Petition, Petitioner was confined in the Federal Bureau of
Prisons (“BOP”) at the Edgefield Federal
Correctional Institution. [Doc. 1-2 at 1.] He is proceeding
pro se and in forma pauperis under 28 U.S.C. § 1915, and
he seeks relief under 28 U.S.C. § 2241. Pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule
73.02(B)(2)(c), D.S.C., the undersigned magistrate judge is
authorized to review the instant habeas Petition and submit
findings and recommendations to the District Court.
filed this Petition for writ of habeas corpus on July 20,
2018. [Doc. 1.] On September 20, 2018,
Petitioner filed a motion requesting that the undersigned
magistrate judge and United States District Judge Bruce Howe
Hendricks recuse themselves from his case. [Doc. 15.]
Additionally, on October 10, 2018, Respondent filed a motion
for summary judgment. [Doc. 16.] Petitioner filed a response
in opposition to the summary judgment motion on December 11,
2018. [Doc. 22.] These matters are now ripe for review.
was convicted after a jury trial of one count of forgery of a
passport, one count of use and attempted use of a false
passport, and five counts of wire fraud, and was sentenced on
October 11, 2013, to 77 months' imprisonment to be
followed by a three-year term of supervised release. See
United States v. Roudabush, 578 Fed.Appx. 292, 293
(2014); [Doc. 16-1 at 6].
is challenging a loss of Good Conduct Time (GCT) credits.
[Doc. 1 at 1.] He received an incident report on January 2,
2018 (Incident Report No. 3073430), for Code 208 and 203
violations for improper use of a security device and
threatening another with bodily harm, respectively.
[Id.; Doc. 16-2 at 3.] A Disciplinary Hearing
Officer (“DHO”) held a hearing on January 17,
2018, and Petitioner was found guilty of the Code 208
violation and the Code 203 violation, which was reduced to a
Code 312 (insolence towards a staff member) violation. [Docs.
1 at 1; 16-2 at 3.] As a result, the DHO imposed a penalty
for the Code 208 violation of 15 days of disciplinary
segregation, loss of 27 days of GCT, and loss of 6
months' commissary privileges; for the Code 312
violation, Petitioner received a penalty of 15 days of
disciplinary segregation, loss of 14 days of GCT, and loss of
phone privileges for three months. [Docs. 1 at 1-2; 16-2 at
filed a notice of appeal at the BP-10 level on April 20,
2018. [Docs. 1 at 2; 16-1 at 2-3.] That appeal was rejected
as untimely insofar as it was not filed within 20 days of the
incident giving rise to the complaint. [Docs. 1 at 2; 16-1 at
2-3.] Petitioner did not submit any appeal of the rejection
for untimeliness of his BP-10-level appeal, and he has never
submitted any administrative appeal at the BP-11 level. [Doc.
16-1 at 3.]
20, 2018, Petitioner filed this § 2241 Petition
challenging the outcome of the DHO proceeding. [Doc. 1.]
Petitioner alleges the DHO Report was served on him on
January 29, 2018, and that he was in the Special Housing Unit
(“SHU”) and was therefore unable to file a timely
appeal. [Doc. 1 at 2-3.] On that basis, he asserts that he
has exhausted his administrative remedies. [Id.] As
grounds for challenging the DHO's decision, Petitioner
contends the DHO was not independent [id. at 3];
instead of reducing the Code 203 charge to a Code 312 charge,
the DHO should have expunged the Code 203 charge because he
found the evidence did not support the charge [id.
at 4]; the punishment for the Code 312 violation was too
severe [id.]; Petitioner committed only one
violation but was improperly charged with two [id.];
disciplinary segregation is not allowed for his Code
violations [id.]; loss of privileges was not an
appropriate sanction [id. at 5]; Petitioner was
improperly charged with the Code 208 violation [id.
at 5-6]; the sanctions are too severe for the misconduct
charged [id. at 6]; and Petitioner was denied equal
protection of the law and the Incident Report was retaliatory
relief, Petitioner seeks (1) expungement of the Incident
Report from his record; (2) return of all GCT disallowed for
the Incident Report; and (3) recalculation of his GCT
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).
for Summary Judgment Standard
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 ...