Reid v. Mansukhani

Filing 32

ORDER AND OPINION: The Court adopts the Report and Recommendation as the order of the Court and GRANTS Respondent's motion for summary judgment. (Dkt. No. 12 ) AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 6/1/2017. (prou, )

IN THE UNITED STATES DISTRICT ~~ft1) CLERK'S OFFICE
DISTRICT OF SOUTH CAROLINA

7tlll JUN - I P 2: ti8
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George Wayne Reid,
Petitioner,
v.

Warden Mansukhani, F.C.I. Estill,

Respondent.

Case N'o 5:16-cv-3280-RMG

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ORDER ANl}fd~~~lbN

Petitioner, a federal prisoner proceeding pro se, filed this petition for a writ of habeas
corpus under 28 U.S.C. § 2241.

This matter is before the Court on the Report and

Recommendation ("R. & R.") of the Magistrate Judge (Dkt. No. 28) recommending that the
Court grant Respondent's motion for summary judgment. 1 For the reasons set forth below, this
Court adopts the R. & R. as the order of the Court. Respondent's motion for summary judgment
(Dkt. No. 12) is granted.
I.

Facts
Petitioner is currently incarcerated at the Federal Correctional Institution ("FCI") in

Estill, South Carolina. He is projected to be released in July 2020. (Dkt. No. 12-1.) This Court
adopts the facts as outlined in the R. & R. so provides only a brief summary here. (Dkt. No. 28 at
1-4.) In May 2015, during a random cell search, Petitioner was found to be in possession of
several different types of pills for which he did not have active prescriptions. Following a
disciplinary hearing at which he presented no witnesses, did not request staff representation, and

1

Respondent has styled his motion as a motion to dismiss or, in the alternative, for summary judgment.
Because Respondent's motion is largely based on information not included in the Petition, and the
Magistrate and this Court have looked beyond the pleadings, this Court has treated the motion as one for
summary judgment.

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admitted to the charges against him, Petitioner was sanctioned with, among other things, the loss
of forty-one days of good time credit. Petitioner now seeks restoration of the good time credit he
lost, alleging that the BOP (1) neglected to field test or laboratory test the substances found in his
cell, and (2) failed to give him a copy of the disciplinary hearing report ("DHO report") listing
the evidence relied on and the reasons for the sanctions imposed. Respondent has moved for
summary judgment, claiming that (1) Petitioner has not exhausted the BOP's internal
administrative remedies available to him, and (2) Petitioner has received due process in
connection with the disciplinary hearing and loss of good time credit.
II.

Legal Standard
a. Summary Judgment
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to

any material fact" and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). In other words, summary judgment should be granted "only when it is clear that there is
no dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining
whether a genuine issue has been raised, the court must construe all inferences and ambiguities
in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'! Red Cross, 101 F.3d
1005, 1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).

Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his
pleadings. Id. at 324. Rather, the non-moving party must demonstrate that specific, material

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facts exist that give rise to a genuine issue. Id. Under this standard, "[c]onclusory or speculative
allegations do not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving
party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting
Phillips v. CSXTransp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
b. Pro Se Pleadings

This Court liberally construes complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v.
Kerner, 404 U.S. 519 (1972). As Petitioner is proceeding pro se, his pleadings are considered

under this liberal standard. The requirement of liberal construction does not mean that the Court
can ignore a clear failure in the pleadings to allege facts which set forth a viable federal claim,
nor can the Court assume the existence of a genuine issue of material fact where none exists.
Weller v. Dep 't ofSocial Services, 901 F.2d 387 (4th Cir. 1990).
c. Magistrate's Report and Recommendation

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de nova determination of those portions of the Report and Recommendation to which specific
objection is made. 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)(l). This
Court may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id. When a proper objection is made to a particular issue, "a district court is
required to consider all arguments directed to that issue, regardless of whether they were raised
before the magistrate." United States v. George, 971F.2d1113, 1118 (4th Cir. 1992). However,

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"[t]he district court's decision whether to consider additional evidence is committed to its
discretion, and any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9
(4th Cir. 2002). "[A]ttempts to introduce new evidence after the magistrate judge has acted are
disfavored," though the district court may allow it "when a party offers sufficient reasons for so
doing." Caldwell v. Jackson, 831 F. Supp. 2d 911, 914 (M.D .N. C. 2010) (listing cases).

III.

Discussion

The Magistrate Judge has recommended that this Court grant Respondent's motion for
summary judgment because (1) Petitioner failed to exhaust the BOP's administrative remedies,
and (2) even if Petitioner exhausted his remedies, he has not shown that he was denied
procedural due process. (Dkt. No. 28.) Petitioner has filed objections to both of the Magistrate's
findings. (Dkt. No. 30.) Petitioner's objections generally restate his previous arguments. The
Court has reviewed the record and determined that the Magistrate Judge correctly applied the
controlling law to the facts of this case.
The Magistrate has provided a detailed description of Petitioner's administrative appeals
and explained how Petitioner did not properly exhaust those appeals. (Dkt. No. 28 at 9-13.)
Petitioner argues in his objections that the BOP was "aware of the attempts Petitioner made to
exhaust [his administrative remedies] and ... still denied his appeal as untimely." (Dkt. No. 30 at
2.) He says that after his appeal was inappropriately "deemed untimely," he "could not go any
further to resolve his issue administratively." (Id.) The record shows that Petitioner's second
BP-11 appeal was rejected because, although he had satisfied the untimeliness issue, he had
failed to sign the appeal or to utilize the required parts of the form. (Dkt. Nos. 26-1 at 4; 12-3 at
4.) Petitioner's appeal was not denied because it was untimely, but because it was incomplete.
The record therefore shows that Petitioner did not properly exhaust his administrative remedies.

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Assuming, arguendo, that Petitioner had properly exhausted his administrative remedies,
the Magistrate found that Petitioner had received all due process he was entitled to in connection
with the loss of good time credits. In his objections, Petitioner claims only that he did not receive
a copy of the DHO report following his hearing. Petitioner has a due process right to receive a
copy of the DHO report. See Wolff v. McDonnell, 418 U.S. 539, 563-576 (noting that due
process requirements are satisfied where a prisoner is given advance written notice of the
charges, the right to participate in the hearing and call witnesses, and provided with a written
statement setting out the decision and the reasons therefore). However, Petitioner has no
constitutional right to receive the DHO report within the 15-day period outlined in the BOP's
regulations. See Huang Mahsukhani, C.A. No. 4:16-1269-BHH, 2016 WL 6694530, at *3
(D.S.C. Nov. 16, 2016) (noting that 15-day period to receive DHO decision is not mandatory,
and petitioner failed to show that receipt outside the ordinary 15-day period violated his due
process rights) (emphasis in original).
IV.

Conclusion

Because this Court finds that there is no genuine dispute of material fact about whether
Petitioner properly exhausted his administrative remedies, this Court adopts the R. & R. as the
order of the Court and GRANTS Respondent's motion for summary judgment. (Dkt. No. 12)

ru~~rgel

AND IT IS SO ORDERED.

United States District Court Judge
June (
,2017
Charleston, South Carolina

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