Garcon v. Cruz

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATION 18 . Respondent's motion for summary judgment [ECF 13] is granted in part and denied in part. Signed by Honorable Richard M Gergel on 4/17/2014. (kric, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Julien Garcon,
Petitioner,
v.
Warden Cruz, FCI Williamsburg,
Respondent.

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No.6: I3-cv-2450-RMG

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ORDER

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This matter is before the Court on the Report and Recommendation ("R&R") of the
Magistrate Judge recommending that Respondent's motion for summary judgment be granted in
part and denied in part. (Dkt. No. 18). For the reasons set forth below, the Court agrees with
and adopts the R&R as the order of the Court.
Background

Petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Dkt. No.1). Pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(c)
DSC, this matter was automatically referred to a United States Magistrate Judge for pretrial
proceedings. On November 6, 2013, Respondent filed a motion for summary judgment. (Dkt.
No. 13). Petitioner then filed a response in opposition to the motion. (Dkt. No. 16). The
Magistrate Judge then issued the present R&R recommending Respondent's motion be granted
in part and denied in part. (Dkt. No. 18). Respondent then filed objections to the R&R. (Dkt.
No. 20). Petitioner did not file objections to the R&R.
Legal Standard

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 novo detennination of those portions of the R&R 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)(I). This Court may also
"receive further evidence or recommit the matter to the magistrate judge with instructions." Id
Discussion

After review of the record, the R&R, and Respondent's objections, the Court finds that
the Magistrate Judge applied sound legal principles to the facts of this case and therefore agrees
with and adopts the R&R as the order of the Court.
Briefly stated, the facts giving rise to this case are as follows: On April 4, 2012,
Disciplinary Hearing Officer ("DHO") Ree Doe conducted a disciplinary hearing regarding
charges against Petitioner for 1) refusing to submit to a urine test and 2) insolence towards staff.
Prior to this hearing, Petitioner was advised of his right to have a staff representative at the
hearing and to present witnesses. Petitioner waived his right to a staff representative and elected
to have one witness, Sean Gabbison, testify. Following the hearing, the DHO found Petitioner
committed both acts as charged. Petitioner appealed this decision and it was remanded back to
the DHO for rehearing. The rehearing occurred on September 20, 2012.
The parties disagree on what took place at the rehearing. DHO Doe attests that he again
advised Petitioner of his right to have a staff representative and to present witnesses at the
rehearing. However, Doe declares that Petitioner again waived his right to a staff representative
and also declined to present witnesses (however, Gabbison's earlier testimony was considered).
On the other hand, Petitioner asserts he was never advised of his rights to have a staff
representative and to present witnesses. Petitioner claims that if he were so advised, he would

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have called inmate Nicolas Thomas as a witness. Further, Petitioner has supplied an affidavit of
Thomas. (Dkt. No. 16-1).
On this record, the Magistrate Judge found that a genuine issue of fact remained as to
whether Petitioner's due process rights were violated when he was not infonned of his rights to a
staff representative and to present witnesses. (Dkt. No. 18 at 8). Respondent objects by arguing
that the record is clear that DHO Doe advised Petitioner of his rights. (Dkt. No. 20).
After review of the record, the Court agrees with the decision ofthe Magistrate Judge that
there is a genuine issue of fact whether DHO Doe advised Petitioner of his rights before the
September 2012 rehearing. Aside from the competing affidavits of Doe and Petitioner (Dkt.
Nos. 13-4, 16-1), there is little evidence which would decide this issue of fact in favor of
Respondent. For example, prior to the initial hearing in April 2012, Petitioner signed a fonn
dated March 27, 2012, which advised him of his rights to a representative and to present
witnesses. (Dkt. No. 13-6). However, there is no similar fonn predating the September 20,2012
rehearing.

Nevertheless, Respondent argues that Petitioner cannot be believed because

Thomas's affidavit predates Petitioner's initial hearing and Petitioner did not call Thomas as a
witness. While the Court agrees this raises questions, it does not plainly indicate that Petitioner
was advised of his rights before the September 2012 rehearing. Finally, Respondent argues
harmless error because the Thomas affidavit can be interpreted as consistent with Petitioner's
guilt on the charges. See Brown v. Braxton, 373 F.3d 501,508 (4th Cir. 2004) (holding that even
if a prison official's actions create a potential due process violation, a habeas petitioner needs to
demonstrate that he was harmed by the violation in order to obtain reliet). However, the Court
must interpret the evidence in the light most favorable to Petitioner, and the affidavit certainly
can also be viewed to rebut the facts necessary to hold Petitioner liable because Thomas claims

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responsibility for the conduct giving rise to the charges. Therefore, the exclusion of Thomas as a
witness cannot be viewed as harmless.
Conclusion

For the reasons set forth above, the Court agrees with and adopts the R&R as the order of
the Court. (Dkt. No. 18). Accordingly, Respondent's motion for summary judgment is granted
in part and denied in part. (Dkt. No. 13).
AND IT IS SO ORDERED.

Richard Mark Ger
United States District Court Judge
April ( ), 2014
Charleston, South Carolina

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