Barnett v. Bureau of Prison

Filing 35

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court has thoroughly reviewed the record and concurs in the recommendation of theMagistrate Judge. Respondents motion to dismiss 20 is granted with prejudice. Petitioners motion for declaratory judgment 27 is denied as moot. Signed by Honorable Margaret B Seymour on 11/15/2011. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Cushaw Banacek Barnett, #03403-049,

)
) C/A No. 4:11-0894-MBS
Petitioner,
)
)
vs.
)
ORDER
)
Bureau of Prison,
)
)
Respondent.
)
____________________________________)
Petitioner Cushaw Banacek Barnett is a federal inmate in custody of the Federal Bureau of
Prisons (FBOP). On April 15, 2011, Petitioner filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241. Petitioner alleges that he was subjected to disciplinary action for planning to
escape from a secure institution in North Carolina. According to Petitioner, his disciplinary offense
should be expunged and his good time credit should be restored because the incident report
describing the disciplinary offense was not timely served on him under applicable regulations.
Petition for Writ of Habeas Corpus (ECF No. 1). In accordance with 28 U.S.C. § 636(b) and Local
Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Thomas E. Rogers,
III for pretrial handling.
This matter is before the court on motion to dismiss filed by Respondent on August 10, 2011.
On August 12, 2011, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was
advised of the summary judgment procedure and the possible consequences of failing to respond
adequately. Petitioner filed a response in opposition to Respondent’s motion to dismiss on August
31, 2011, to which Respondent filed a reply on September 12, 2011. Petitioner also filed a motion
for declaratory judgment on September 20, 2011.

On October 12, 2011, the Magistrate Judge issued a Report and Recommendation in which
he construed Petitioner’s complaint as alleging a denial of due process. See Wolff v. McDonnell,
418 U.S. 539, 564 (1974). The Magistrate Judge noted that Petitioner was given advanced written
notice of the charges against him. Petitioner was given the opportunity to present evidence and have
the assistance of a staff representative. Petitioner attended a hearing and gave a statement. A written
decision was delivered to Petitioner. Thus, the Magistrate Judge determined that Petitioner was
accorded adequate due process as required by Wolff. The Magistrate Judge recommended that
Respondent’s motion to dismiss be granted. Petitioner filed no objections to the Report and
Recommendation.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The court may accept, reject, or modify, in whole or
in part, the Report and Recommendation or may recommit the matter to the Magistrate Judge with
instructions. 28 U.S.C. § 636(b)(1). In the absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must “only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
The court has thoroughly reviewed the record and concurs in the recommendation of the
Magistrate Judge. Respondent’s motion to dismiss is granted with prejudice. Petitioner’s motion

2

for declaratory judgment is denied as moot.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
United States District Judge

Columbia, South Carolina
November 15, 2011

NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure.

3