Johnson v. Cruz
Filing
28
ORDER ADOPTING 13 REPORT AND RECOMMENDATION re 8 Motion to Dismiss, Motion for Summary Judgment, filed by M Cruz. The respondent's motion for summary judgment is granted. Signed by Honorable Joseph F Anderson, Jr on 9/24/2014. (abuc)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Harvey R. Johnson,
)
)
Petitioner,
)
)
v.
)
)
Warden, FCI Williamsburg,
)
)
Respondent.
)
______________________________________ )
C/A No 1:13-3347-JFA-SVH
ORDER
The pro se petitioner, Harvey R. Johnson, is an inmate with Federal Correctional
Institution in Williamsburg, South Carolina.
He brings this action pursuant to
28 U.S.C. § 2241 challenging a decision rendered during a disciplinary hearing at FCI
Williamsburg.
The Magistrate Judge assigned to this action1 has prepared a comprehensive Report
and Recommendation and opines that the respondent’s motion for summary judgment2
should be granted. The Report sets forth in detail the relevant facts and standards of law on
this matter, and the court incorporates such without a recitation and without a hearing.
1
The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
2
An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner
of the summary dismissal procedure and possible consequences if he failed to adequately respond to the
motion for summary judgment. Petitioner responded to the motion.
1
The petitioner was advised of his right to file objections to the Report and
Recommendation and he timely filed objections which the court will address herein.
After noting a slight discrepancy in the opinion of the Discipline Hearing Officer
(DHO) giving rise to the claim in this case, the court requested additional briefing from the
parties. That briefing has been received and reviewed by the court making this case ripe for
the court’s review.
FACTUAL BACKGROUND
On April 25, 2013, a counselor at FCI Williamsburg searched one of petitioner’s legal
lockers and found a green leafy substance inside a plastic bag taped to the front door panel.
The substance field-tested positive for marijuana, resulting in petitioner being charged with
possession of narcotics within a prison. A copy of the incident report was delivered to the
petitioner approximately an hour and one half after the search. During the ensuing
investigation, petitioner was advised of his rights and was given the opportunity to make a
statement in his defense. Petitioner vigorously argued that he was not guilty and suggested
that he was “obviously” set up due to his being a prolific grievance filer within the Bureau
of Prisons. He asked to review the video surveillance for the morning in question, and
several days prior thereto.
Petitioner was given written notice of a disciplinary hearing and of his rights at the
hearing. He requested a staff representative, but did not request any witnesses be called at
the hearing before the DHO. The hearing was conducted on May 30, 2013. At the hearing,
petitioner received assistance from a staff representative, but did not request or present any
2
witnesses. After considering all the evidence provided at the hearing, the DHO determined
that petitioner had committed the prohibited acts as charged. He was ultimately sanctioned
with a loss of good time credit, 90 days disciplinary segregation, 180 days loss of commissary
privileges, telephone access, and immediate family visits.
On June 13, 2013, a copy of the DHO report was delivered to the petitioner and he
was advised of his right to appeal the DHO’s decision. Petitioner did so, and after fully
exhausting his remedies, he turned to this court in an action filed on December 2, 2013.
DISCUSSION
After acknowledging the procedural requisites of an action such as this (including, for
example, the obligation to give the pro se litigant’s pleadings a liberal construction, etc.), the
Magistrate Judge turns to the well established procedural safeguards that apply when loss of
statutory good time credit is at issue in a case. In Wolff v. McDonnell, 418 U.S. 539, 557
(1974), the Supreme Court set out the requirements for due process in prison disciplinary
hearings as follows:
1.
Giving the prisoner written notice of the charges at least 24 hours
before he appears for his disciplinary hearing;
2.
Providing the prisoner a written statement by the fact finder(s) as to the
evidence relied on and reasons for the disciplinary action;
3.
Allowing the prisoner to call witnesses and present documentary
evidence in his defense, when permitting him to do so will not be an
undue hazard to institutional safety or correctional goals;
4.
Permitting the prisoner the aid of a fellow prisoner, or if that is
forbidden, aid from staff or a competent inmate designated by staff, if
the prisoner is illiterate or the complexity of the issue makes it unlikely
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that the prisoner will be able to collect and present the evidence
necessary for an adequate comprehension of the case; and
5.
Providing impartial fact finders.
From this court’s review of the record in this case, it is evident that the Magistrate
Judge was correct in determining that the petitioner was accorded all of the procedural
protections required by Wolff.
Primarily at issue in this litigation is the ultimate decision rendered by the DHO. As
the Magistrate Judge observes, DHO findings revoking a prisoner’s good time credit must be
supported by “some evidence” in the record. Superintendent, Mass. Corr. Inst. v. Hill, 472
U.S. 445, 454–56 (1985).
It is clear from the record that petitioner’s disciplinary representative attempted in
good faith to request photographs, chain of custody forms, memoranda, and the like. The
Magistrate Judge points out that such items are not produced to inmates for reasons of
institutional security and safety.3
Petitioner’s primary complaint is that the hearing did not include a review of the
videotape covering his locker on the day in question and several days prior thereto. He
points out that the FCI was able to retrieve a video surveillance tape concerning another
inmate’s disciplinary incident that occurred three weeks prior to his. Respondent argues that
the videotape was, unfortunately, not maintained and that even if it had been retrieved, the
3
The court notes that there is an internal discrepancy in the DHO report which seems to suggest, on face
value, that petitioner did, in fact, receive photographs of the marijuana and the chain of custody form. In
subsequent briefing, the court has determined that this indication was made in error. These items were
requested by the representative, but not produced by the respondent.
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DHO would not have been compelled to turn that evidence over to the petitioner, citing
Wolff.
The Magistrate Judge is correct that Wolff stands for the proposition that a prisoner
is not guaranteed unfettered access to exculpatory evidence in the context of a disciplinary
hearing.
Petitioner also relies heavily upon a statement of inmate Michael Thompson, who
suggested that petitioner was, in fact, set up by Counselor Claussen-Alcock. The Magistrate
Judge found these allegations “disturbing,” but concluded nevertheless that petitioner had
produced no evidence to establish that the fact finder in his case was not impartial. The
record establishes that the DHO examined the record and conducted a hearing. He
considered the report, petitioner’s oral denial, staff eyewitness’s account of the incident,
photographs, staff memorandum, and other materials. The DHO made a determination as
to the credibility of the petitioner and of staff. As the Magistrate Judge points out, the DHO
was entitled to make credibility determinations. In short, the Magistrate Judge concludes that
petitioner was afforded all due process required under Wolff, and that based upon the limited
judicial review of prison disciplinary actions accorded under that decision, the petitioner’s
claim must fail. Accordingly, the Magistrate Judge recommends that summary judgment be
granted.
Petitioner’s objections to the Magistrate Judge’s Report and Recommendation take
issue with every conclusion reached by the Magistrate Judge and basically reargues the same
issues that were presented to, and rejected by, the Magistrate Judge. The petitioner’s objection
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memorandum also points out the technical discrepancy in the DHO report that led to this
court’s request for additional briefing. Such briefing has satisfied the court that despite the
technical error, the underlying decision remains sound.
CONLUSION
Having conducted the required de novo review, the court determines that the
Magistrate Judge’s recommendation should be adopted by this court. Accordingly, all
objections are overruled; the Report is incorporated herein by reference; and the respondent’s
motion for summary judgment is granted.
It is further ordered that a certificate of appealability is denied because the petitioner
has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).4
IT IS SO ORDERED.
September 24, 2014
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
4
A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U .S.C. § 2253(c)(2) (West 2009). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that
any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683 (4th Cir. 2001).
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