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Roudabush v. Warden Fci Edgefield

United States District Court, D. South Carolina

January 29, 2019

James L. Roudabush, Jr., Petitioner,
v.
Warden FCI Edgefield, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin, United States Magistrate Judge

         This 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.

         Petitioner filed this Petition for writ of habeas corpus on July 20, 2018.[1] [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.

         BACKGROUND

         Petitioner 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].

         Petitioner 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 8.]

         Petitioner 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.]

         On July 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 [id.].

         For his 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 time.[2] [Id.]

         APPLICABLE LAW

         Liberal Construction of Pro Se Petition

         Petitioner 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).

         Motion for Summary Judgment Standard

         Rule 56 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 ...

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