United States District Court, D. South Carolina, Florence Division
JOSEPH HENRY SHELLMAN, JR. Petitioner,
ACTING WARDEN W. VEREEN, Respondent.
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge.
Petitioner, Joseph Henry Shellman, Jr.,
(“Petitioner/Shellman”), appearing pro
se, filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 on May 9, 2019. On August 2,
2019, the Respondent filed a motion to dismiss. (ECF No. 15).
The undersigned issued an order filed August 6, 2019,
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir.1975), advising the Petitioner of the motion and the
possible consequences if he failed to respond adequately.
(ECF No. 16). Shellman failed to file a response.
complaint may be dismissed pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure for failure to prosecute
and/or failure to comply with orders of the court.
Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989),
cert. denied, 493 U.S. 1084 (1990), and Chandler
Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In
considering whether to dismiss an action pursuant to Rule
41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory
(4) the existence of less drastic sanctions other than
Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
present case, the Petitioner is proceeding pro se so
he is entirely responsible for his actions. It is solely
through Petitioner's neglect, and not that of an
attorney, that no responses have been filed. Petitioner has
not responded to Respondent's Motion to Dismiss or the
court's order requiring him to respond. No. other
reasonable sanctions are available. Accordingly, it is
recommended that this action be dismissed pursuant to Fed. R.
Civ. Proc. 41(b).
alternative, the Motion to Dismiss will be addressed below.
AND FACTUAL BACKGROUND
is currently incarcerated at the Federal Correctional
Institution Beaumont Low in Beaumont, Texas (FCI Beaumont).
Shellman filed this petition seeking relief pursuant to 28
U.S.C. § 2241 by challenging an administrative
disciplinary action he received while incarcerated at FCI
Edgefield. He asserts that his due process rights were
violated when he was unable to obtain a copy of the DHO
decision. In the memorandum attached to his petition,
Shellman specifically argues that his due process rights were
violated because the DHO “1) was clearly partial, 2)
denied Petitioner access to, or the opportunity to present a
witness and 3) refused to provide written copy of his
findings (including the evidence relied upon) to the
Petitioner-or Petitioner's Unit Team.” (ECF No. 1-1
at 9 of 15). By not being able to obtain a copy of the DHO
report, Shellman argues that he was unable to appeal the
decision which prevented him from utilizing the BOP
Administrative Remedy process. Shellman requests that the
report be expunged and his good conduct time restored.
contends that while Shellman filed the petition identifying
two disciplinary actions from the same date, April 1, 2018,
and attaching copies of Incident Reports with the numbers
3110558 and 3110555, Incident Report Number 3110558 was
expunged and no longer appeared on Petitioner's
disciplinary history as of March 2019, prior to the filing of
this case. Therefore, Respondent asserts that the only
disciplinary action remaining at the time of the filing of
this action was Incident Report Number 3110555 which has been
set for a rehearing and no longer appears on Petitioner's
chronological disciplinary record. Respondent attached the
SENTRY Inmate Discipline Data Chronological Disciplinary
record dated August 2, 2019, and SENTRY Inmate Discipline
Data, Pending Reports as Attachments B and C. Respondent
argues that by this disciplinary action being removed from
his record and being set for a rehearing, the claim is moot.
If Petitioner is ...