Rome v. Phelps

Filing 21

ORDER RULING ON REPORT AND RECOMMENDATION 17 . The Respondent's motion for summary judgment is granted and the petition is denied. Signed by Honorable Donald C Coggins, Jr on 3/31/2021. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Victor D. Rome,

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Petitioner,
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v.
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Warden S. Phelps,
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Respondent.
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________________________________ )

Case No. 8:20-cv-03167-DCC

ORDER

Petitioner, proceeding pro se, is seeking habeas corpus relief pursuant to 28
U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2),
(D.S.C.), this matter was referred to United States Magistrate Judge Jacquelyn D. Austin
for pre-trial proceedings and a Report and Recommendation (“Report”). On November
5, 2020, Respondent filed a motion to dismiss or, in the alternative, for summary
judgment. ECF No. 11. Petitioner filed a response and a supplement. ECF Nos. 14, 15.
On October 6, 2020, the Magistrate Judge issued a Report construing the motion as a
motion for summary judgment and recommending that it be granted. ECF No. 27.
Petitioner filed objections to the Report. ECF No. 19.
APPLICABLE LAW
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
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Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
The Court will review the Report only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of 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.” (citation omitted)).
ANALYSIS
As an initial matter, the Court finds that the Magistrate Judge has included a
thorough summary of the relevant facts and applicable law, which the undersigned
incorporates by reference. Briefly, this action pertains to Petitioner’s hearing in front of a
Disciplinary Hearing Officer (“DHO”). On November 22, 2019, Petitioner received an
incident report charging him with use of drugs or alcohol (“the Second Charge”). ECF
Nos. 1-1 at 2; 1-2 at 1. On December 3, 2019, he was found guilty at a hearing in front
of the DHO; the DHO’s sanctions included 15 days’ disciplinary segregation, loss of six
months of visiting and commissary privileges, and loss of 41 days’ good-time credits.
ECF Nos. 1-1 at 2; 11-1 at 17. Petitioner argues that the positive drug screening that
formed the basis of the Second Charge was caused by the same drug use that gave rise
to an earlier positive test and an earlier charge (“the First Charge”). ECF No. 1-1 at 2, 9.
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He contends that the drug screenings were administered too close in time to ensure the
accuracy of the second test. Petitioner also argues that he has been prejudiced because
he did not receive a copy of the DHO report within 15 days after his sanction was imposed.
ECF Nos. 1-1 at 2; 1-2 at 2. Petitioner contends that the disciplinary hearing violated his
due process rights pursuant to Wolff v. McDonnell; he seeks to have his record expunged
and the restoration of his good-time credit. Id. at 6–7.
A prisoner has a protected liberty interest in their good-time credits. See Wolff v.
McDonnell, 418 U.S. 539, 557 (1974). In disciplinary proceedings that may result in the
loss of good-time credit, an inmate has a right to advance written notice of charges at
least 24 hours before the hearing; to a fair and impartial tribunal; to call witnesses and to
present documentary evidence in his defense; to receive a written statement explaining
the tribunal’s findings; and, “[w]here an illiterate inmate is involved . . . or . . . the
complexity of the issue makes it unlikely that the inmate will be able to collect and present
the evidence necessary for an adequate comprehension of the case,” to seek the aid of
a fellow inmate or prison staff. Id. at 563–70. Further, a disciplinary decision implicating
a prisoner’s liberty interest must be supported by at least “some evidence.”
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454–55 (1985). The
determination of whether the standard is satisfied requires inquiry into “whether there is
any evidence in the record that could support the conclusion reached by the disciplinary
board.” Id. at 455–56.

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Upon review of the provided documents, the Court finds that Petitioner received
the due process safeguards afforded to him by Wolff. He received written notice of the
charges more than 24 hours before the DHO hearing, and he was advised of his rights to
a staff representative, to present and call witnesses, to make statements in his defense,
and to appeal the DHO’s decision. ECF No. 11-1 at 3–5, 10, 14. Petitioner initialed the
form to indicate that he had been apprised of his rights; he did not request a staff
representative or witnesses and he neither admitted nor denied the charge at the hearing.
Id. at 14, 18. Nothing in the record indicates that the DHO was not impartial.1 The DHO
report states the basis for the DHO’s findings, the evidence relied on by the DHO, the
action taken by the DHO, and the reasons for the action. 2 Id. at 17–19.

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The Court notes that in the Petition, but not the objections, Petitioner argues that
the DHO was “clearly partial.” ECF No. 1-1 at 8–9. As explained in more detail by the
Magistrate Judge, Petitioner does not point to any evidence that the DHO failed to
consider any evidence before him or otherwise acted in other than an impartial manner.
See ECF No. 17 at 11 n. 3.
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The Court notes that Petitioner has made no specific objection as to the
Magistrate Judge’s analysis that “some evidence” supported the DHO’s findings.
Nevertheless, the Court has reviewed the record and applicable law de novo and
incorporates by reference the Magistrate Judge’s discussion of the evidence relied upon
by the DHO. ECF No. 17 at 11. Further, Petitioner has not identified any additional
evidence that could have aided in his defense. See Lennear v. Wilson, 937 F.3d 257,
277 (4th Cir. 2019) (“[C]ourts tasked with determining whether prison officials’ failure to
disclose or consider testimonial or documentary was harmless have considered whether
the excluded evidence could have ‘aided’ the inmate’s defense.”).
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Petitioner argues that he has been denied his due process rights because he did
not receive a copy of the DHO report; however, the failure to provide a DHO report within
he time frame contemplated by the regulations is not itself a violation of due process. See
Bauer v. Warden FCI Williamsburg, Case No. 6:16-cv-304-RMG, 2017 WL 318683, at *2
(D.S.C. Jan. 23, 2017) (noting that a petitioner “did receive the DHO’s decision outside of
the 15-day period outlined in the BOP’s policy, but the BOP’s violations of its own policies
do not amount to a due process violation.”). While there is conflicting evidence as to the
date that Petitioner received a copy of the DHO report, even assuming he did not receive
a copy of the DHO report until Respondent filed the instant motion with the report
attached, Petitioner’s argument is without merit. Courts have found that due process
claims based on a failure to receive the DHO report are moot once the inmate has
received the report, and it is undisputed that Petitioner has now received the DHO report.
See, e.g., Shahan v. Ormond, C.A. No. 3:18-cv-00200-HEH, 2018 WL 6681210, at *4
(E.D. Va. Dec. 19, 2018) (concluding that an inmate’s claim regarding his failure to receive
the DHO report was moot because, after initiating the action, the inmate receive the DHO
report), aff’d, 778 F. App’x 217 (4th Cir. 2019).
Regarding his administrative appeals, Petitioner has failed to show that he was
prejudiced by the delay in receiving the DHO report. See Brown v. Braxton, 373 F.3d
501, 508 (4th Cir. 2004) (stating that even if a prison official’s actions create a potential
due process violation, a habeas petitioner must demonstrate that he was harmed by the
violation in order to obtain relief) (citations omitted). Petitioner contends that he had no
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opportunity to administratively appeal the sanctions imposed against him because he was
not provided with a copy of the DHO report. However, Respondent has not argued that
he failed to exhaust his administrative remedies, and Petitioner has been able to
challenge the disciplinary action before this Court. “Accordingly, [P]etitioner has failed to
show that he has been prejudiced by the delay in receiving the DHO report.” Lomas v.
Vereen, C/A No. 6:19-cv-00622-JMC-KFM, 2019 WL 8375933, at *6 (D.S.C. Oct. 17,
2019), adopted by, 2020 WL 913785 (D.S.C. Feb. 26, 2020); see also McCall v. Phelps,
C/A No. 6:20-cv-02034-BHH-KFM, 2020 WL 8083664, at *4 (D.S.C. Dec. 14, 2020),
adopted by, 2021 WL 75172 (D.S.C. Jan. 8, 2021) (“Despite denial of the petitioner’s
administrative remedies due to his failure to attach a copy of the DHO report, the petitioner
has still had the opportunity to challenge his disciplinary action in this court.”); Calixto v.
Masters, C/A No. 1:15-cv-012778, 2016 WL 2600431, at *4 (S.D. W. Va. 2016), adopted
by, 2016 WL 2343890 (S.D. W. Va. May 3, 2016) (noting that the petitioner was not
prejudiced by the delay in receiving his DHO report because, although his appeal was
denied as untimely, the petitioner was able to proceed with judicial review of the DHO’s
decision); Thomas v. Upton, C/A No. 13-cv-102, 2015 WL 8527612, at *3 (W.D. La. Sept.
2, 2015), adopted by, 2015 WL 8542849 (W.D. La. Dec. 10, 2015) (finding no prejudice
to a petitioner who did not receive the DHO report until after filing habeas petition).
Turning to Petitioner’s assertion that the positive test result from the November 13,
2019, sample was the result of the same drug use that gave rise to the First Charge, the
Court agrees with the Magistrate Judge that this should be construed as an “actual
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innocence” argument rather than an argument that he did not receive proper due process
protections. However, “a claim of actual innocence is generally not a basis for federal
habeas corpus relief.” Williams v. Warden, No. 1:17-946-JMC-SVH, 2017 WL 8794895,
at *4 (D.S.C. Oct. 12, 2017), adopted by, 2018 WL 718959 (D.S.C. Feb. 5, 2018), aff’d
744 F. App’x 179 (4th Cir. Dec. 4, 2018). “‘The due process clause does not require later
consideration of evidence that could have been but was not presented during a prison
disciplinary proceeding.’” Id. (quoting Jones v. McCaughtry, 6 F. App’x 371, 372–73 (7th
Cir. 2001)). “[C]ourts look only to whether a prisoner received the procedural protections
due under the Constitution.” Id. As explained herein and in the Report, Petitioner was
afforded the due process requirements under Wolff, and some evidence supports the
DHO’s decision.3 Accordingly, summary judgment is appropriate.
CONCLUSION
After considering de novo the record in this case, the applicable law, and the
Report of the Magistrate Judge, the Court agrees with the Magistrate Judge’s
recommendation; accordingly, Respondent’s motion for summary judgment [11] is
GRANTED and the Petition is denied.
IT IS SO ORDERED.
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Petitioner argues that the samples for the two drug tests were taken less than 30
days apart; however, the evidence in the record demonstrates that his first sample was
taken on October 10, 2019; more than 30 days before the second sample was taken on
November 13, 2019. See ECF No. 11-1 at 22 (inmate disciplinary data showing that the
hearing for the First Charge was held on October 24, 2019, for an incident that occurred
on October 10, 2019); see also ECF No. 1 at 6.
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s/ Donald C. Coggins, Jr.
United States District Judge
March 31, 2021
Spartanburg, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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