Bagley v. Dunlap et al

Filing 32

ORDER: IT IS ORDERED that the Report, ECF No. 23 , is ACCEPTED, and the Objections to the Report, ECF Nos. 25 , 28 , are OVERRULED. For the reasons stated in the Report and those stated herein, Respondent's Motion f or Summary Judgment is GRANTED, and the Petition, ECF No. 1 , is hereby DISMISSED. Petitioner's "Rule 7 Motion for Expansion of the Record," ECF No. 11 , and Request for Entry of Default, ECF No. 20 , are DENIED. IT IS SO ORDERED. Signed by Chief Judge Terry L Wooten on 9/6/2017. (prou, )

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

Bernard Bagley,

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)
Petitioner,
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v.
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)
David Dunlap, Warden Kershaw C.I.,
)
)
Respondent.
)
_____________________________________________ )

C/A No.: 5:16-cv-3924-TLW

ORDER
Petitioner Bernard Bagley, proceeding pro se, filed this petition pursuant to 28 U.S.C.
§ 2241 challenging the parole board’s decision not to grant him parole. ECF No. 1. This matter
now comes before this Court for review of the Report and Recommendation (“the Report”) filed
on May 31, 2017, by United States Magistrate Judge Kaymani D. West, to whom this case was
previously assigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c),
(D.S.C.). In the Report, the Magistrate Judge recommends that this Court grant Respondent’s
motion for summary judgment and deny Petitioner’s motions for expansion of the record and for
entry of default. ECF No. 23. Petitioner filed objections to the Report on June 16, 2017, ECF No.
25, and Respondent filed a Reply, ECF No. 27. Thereafter, Petitioner filed an “Affidavit of Further
Testimony.” 1 ECF No. 28. This matter is now ripe for disposition.

Petitioner also filed a “Motion for Judicial Release and Evidentiary Hearing,” ECF No. 30, and
Respondent filed a Response in Opposition, ECF No. 31. In light of the dismissal of this case,
Petitioner’s motion, which does not discuss the Report, is deemed MOOT.
1

The Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report and Recommendation to which a specific objection is registered, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C.
§ 636. In conducting its review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections.... The Court is not bound by the recommendation
of the magistrate judge but, instead, retains responsibility for the final
determination. The Court is required to make a de novo determination of those
portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the report and recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court's review of the Report
thus depends on whether or not objections have been filed, in either case the Court
is free, after review, to accept, reject, or modify any of the magistrate judge's
findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report,
the applicable law, and the relevant filings, and the Court finds that the Magistrate Judge has given
a detailed factual and legal analysis in the Report. After careful consideration, the Court concludes
that the Petitioner’s objections are repetitive and offer no showing, either factually or legally, that
Respondent’s motion for summary judgement should be denied. Therefore, IT IS ORDERED that
the Report, ECF No. 23, is ACCEPTED, and the Objections to the Report, ECF Nos. 25, 28, are
OVERRULED. For the reasons stated in the Report and those stated herein, Respondent’s Motion

for Summary Judgment is GRANTED, and the Petition, ECF No. 1, is hereby DISMISSED. 2
Petitioner’s “Rule 7 Motion for Expansion of the Record,” ECF No. 11, and Request for Entry of
Default, ECF No. 20, are DENIED.
IT IS SO ORDERED. 3

s/Terry L. Wooten____________
Chief United States District Judge
September 6, 2017
Columbia, South Carolina

To the extent that Petitioner’s Response in Opposition to Summary Judgment, ECF No. 21, seeks
summary judgment on behalf of Petitioner, that motion is DENIED for the reasons stated in the
Report and those stated herein.
3
Unlike in a § 2254 or § 2255 proceeding, it is not necessary for a petitioner to obtain a certificate
of appealability to appeal an order dismissing a § 2241 petition. Sanders v. O’Brien, 376 F. App’x
306, 307 (4th Cir. 2010).
2