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Shellman v. Vereen

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

September 11, 2019

JOSEPH HENRY SHELLMAN, JR. Petitioner,
v.
ACTING WARDEN W. VEREEN, Respondent.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge.

         The 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[1] 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.

         RULE 41(B) DISMISSAL

         A 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 to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.

Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).

         In the 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).

         In the alternative, the Motion to Dismiss will be addressed below.

         PROCEDURAL AND FACTUAL BACKGROUND

         Shellman 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.

         Respondent 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 ...


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