Jenkins v. United States of America

Filing 30

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report 25 and incorporates it herein. The respondent's motion to dismiss or in the alternative for summary judgment (ECF No. 20 ) is GRANTED and Jenkin's petition is DENIED. IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 9/16/2015. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Civil Action No.: 5:14-03687-BHH
Jerry Jenkins
Petitioner,
vs.
Opinion and Order
Warden, FCI Edgefield
Respondent.

This matter is before the Court upon the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 25), which recommends that the respondent’s
motion to dismiss or in the alternative for summary judgment (ECF No. 20) be granted,
and the § 2241 petition be denied. The Report and Recommendation sets forth in
detail the relevant facts and standards of law on this matter and the Court incorporates
them without recitation.
BACKGROUND
The petitioner, Jerry Jenkins, a federal inmate at FCI Edgefield, who is
proceeding pro se, brought this action pursuant to 28 U.S.C. § 2241 challenging the
outcome of a prison disciplinary hearing. The hearing involved an incident at FCI
Loretto in Pennsylvania in which the plaintiff is alleged to have disposed of a bag that a
correctional officer was attempting to seize from him during a search and subsequent
foot chase. The petitioner alleges that the correctional officer involved was using the
search as a pretext to sexually assault him and concocted the account regarding the
disposal of the bag to retaliate against the petitioner for complaining about it. The
Disciplinary Hearing Officer (DHO) found that the petitioner destroyed or disposed of
an item during a search or attempted search and imposed a sanction consisting of the
forfeiture of 40 days of good time, the forfeiture of 60 days of non-vested good time, a

period of disciplinary segregation, and the loss of visitation privileges. The petitioner
alleges that he was denied due process.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) DSC,
the case was assigned to Magistrate Judge Kaymani D. West. On April 24, 2015, the
Magistrate Judge issued a Report recommending that the respondent’s motion to
dismiss or in the alternative for summary judgment be granted, and the § 2241 petition
be denied. The petitioner filed objections on May 11, 2015 (ECF No. 27).
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight.

The responsibility to make a final

determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–
71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo
determination of those portions of the Report 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 with instructions. 28 U.S.C. § 636(b)(1).
The court is obligated to conduct a de novo review of every portion of the Report
to which specific objections have been filed. Id. However, the court need not conduct
a de novo review when a party makes only “general and conclusory objections that do
not direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) ( “[D]e novo
review [is] unnecessary in . . . situations when a party makes general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendation.”). The court reviews only for clear error in the absence
of a specific objection. Furthermore, in the absence of a timely filed, specific objection,
the Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond v.
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Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Additionally, the
Court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). This Court
may also “receive further evidence or recommit the matter to the magistrate judge with
instructions.” Id.
DISCUSSION
The petitioner alleges that he was denied due process because (1) one of the
witnesses he called was unable to testify completely, (2) he was not permitted to
question the correctional officer who made the allegations against him, and (3) the
Central Office refused to produce and the DHO refused to review surveillance footage
of the event, which the petitioner maintains would disprove the officer’s allegations.
The Magistrate Judge concluded: (1) that the testimony that the petitioner sought to
elicit from his witness was irrelevant and was properly excluded by the DHO; (2) that
the petitioner was not entitled to cross examine the correctional officer; and (3) that the
petitioner failed to exhaust his administrative remedies with regard to his request that
the DHO review the video tape, and that even if he had exhausted his remedies, he
would not be entitled to view the video tape himself. The petitioner objects to these
conclusions.
Upon review, the petitioner’s objections provide no basis for this Court to deviate
from the Magistrate Judge’s recommended disposition, and the petition for a writ of
habeas corpus pursuant to § 2241 must be denied for the reasons set forth in the
Magistrate Judge’s concise and thorough report. The Court agrees with the Magistrate
Judge that there was no due process violation in the DHO’s refusal to allow the
petitioner’s witness to testify that the petitioner had previously told him that the
correctional officer in question was harassing him. The testimony would add very little
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to the petitioner’s case, and the Court finds that there was no due process violation in
its exclusion. The Court also agrees with the Magistrate Judge that a prisoner does
not have cross-examination rights in disciplinary proceedings. The Magistrate Judge
cited Fourth Circuit authority that explicitly holds as much, see Baker v. Lyles, 904 F.2d
925, 929 (4th Cir. 1990), and the petitioner has not directed the Court to any contrary
governing authority. The petitioner maintains that the Report failed to address his
claim that he was not allowed to adequately question the events that surrounded the
incident in question, but the Court does not find that the petitioner has demonstrated a
due process violation on these grounds either.
The petitioner does not contest the Magistrate Judge’s conclusion that a
petitioner seeking relief under 28 U.S.C. § 2241 must exhaust his administrative and
remedies. The Magistrate Judge correctly observed that the petitioner’s administrative
appeal neither requests a review of video evidence nor indicates that the DHO had
refused to examine such evidence upon request. (See ECF No. 20-8 at 1.) Rather,
the administrative appeal complains that the DHO refused to allow the petitioner’s only
witness to testify “to aquital [sic] type information” and that the sanctions “are harsh
and excessive and do not promote respect nor safety for the BOP in general and the
Department of Justice in particular.” (Id.)
In support of this appeal, the petitioner submitted a declaration of Donald Craig,
an inmate who testified for the petitioner at his disciplinary hearing.

Craig’s

declaration, which primarily alleges that he was not permitted to testify fully, includes
the following statement: “To see what actually happened, simply roll back the camera
that points down the corridor to the NI Officer Station. It shows the whole corridor.”
(Id. at 2.) Based on this statement, the petitioner objects to the conclusion that he
failed to exhaust his administrative remedies with regard to a request to review the
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video tape.

However, a single assertion by a third-party witness alleging that the

events should have been caught on video tape is not the same as a request from the
petitioner that the video tape be reviewed or an allegation that the DHO wrongfully
refused to review video evidence. Accordingly, the Court agrees with the Magistrate
Judge that the petitioner failed to exhaust his administrative remedies with regard to his
request that the DHO review the video tape.1
CONCLUSION
After a thorough, de novo review of the Report, the record, and the applicable
law, the Court finds that the petitioner’s objections are without merit. Accordingly, the
Court adopts the Report and incorporates it herein. The respondent’s motion to dismiss
or in the alternative for summary judgment (ECF No. 20) is GRANTED and Jenkins’
petition is DENIED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
September 16, 2015
Greenville, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.

1

The Court agrees with the Magistrate Judge’s observation that, while there are “obvious risks
of giving inmates access to video surveillance,” such risks are presumably not attendant where
the prisoner is simply asking that the DHO review the video evidence.

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