United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH, CHIEF UNITED STATES DISTRICT JUDGE
before the Court is the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Robert W. Trumble. ECF No. 27. Pursuant to this Court's
Local Rules, this action was referred to Magistrate Judge
Trumble for submission of a proposed R&R. Magistrate
Judge Trumble issued his R&R on May 16, 2019. Therein,
Magistrate Judge Trumble recommends that the Petitioner's
§ 2241 petition [ECF No. 1] be denied and dismissed with
review of the record, the Court finds that the facts as
explained in the R&R accurately and succinctly describe
the circumstances underlying the Petitioner's claims. The
Court incorporates those facts herein. However, outlined
below are the most relevant facts of this case.
August 26, 2017, the cook supervisor at FCI Gilmer reported
that the Petitioner reached over the counter in the food
service area and stole a Danish during the breakfast meal.
The Petitioner was charged in an incident report with
stealing and being unsanitary, in violation of Prohibited Act
codes §§ 219, 316. On August 27, 2017, the
Petitioner received written notice of the charges. The
Petitioner denied the allegation and argued that a review of
the recording would show the food service worker handed him
the Danish. On August 29, 2017, a “Notice of Discipline
Hearing Before the (DHO)” was issued to the Petitioner,
who signed and dated the document. The Petitioner waived his
right to staff representation for the hearing, but indicated
he intended to call a witness. The same day, the Petitioner
received and acknowledged a document informing him of his
rights at the hearing.
September 12, 2017, the disciplinary hearing was held. At the
hearing, the Petitioner again denied taking the Danish and
stated that an inmate handed him the Danish. Inmate Hardy
appeared as a witness for the Petitioner and stated he gave
the Petitioner the Danish and it was a part of his meal he
had not eaten. The Petitioner expressed that the video
recording should be reviewed to show he did not steal the
Danish. The Discipline Hearing Officer stated that he was
unable to retrieve the recording because it was only saved
until August 30, 2017. The Discipline Hearing Officer found
the Petitioner committed the prohibited act of stealing and
sanctioned the Petitioner with the disallowance of
twenty-seven days of Good Conduct Time. In making his
finding, the Discipline Hearing Officer considered all the
evidence, but found the reporting officer's eyewitness
account of the incident more credible.
August 10, 2018, the Petitioner filed a Petition for Habeas
Corpus pursuant to 28 U.S.C. § 2241. In his petition,
the Petitioner asserts two grounds for relief. In ground one,
the Petitioner asserts that the Discipline Hearing Officer
failed to adhere to the Federal Bureau of Prisons' policy
by destroying the video evidence prior to the completion of
the disciplinary process. The Petitioner argues that the
destruction of the evidence violated his due process rights.
In ground two, the Petitioner asserts that the denial of his
appeal was in complete error. The Petitioner seeks to have
the incident report expunged and to be credited 496 Trulincs
to compensate the 60 days he was denied use of his MP3
player. He further seeks to recover the 27 days of Good
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which 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 findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Failure to file timely objections constitutes a waiver of
de novo review and of a Petitioner's right to
appeal this Court's Order. 28.U.S.C..'.636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of the Petitioner being served with
a copy of the same. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). The R&R was mailed to the Petitioner by certified
mail on May 16, 2019. ECF No. 27. The Petitioner accepted
service on May 20, 2019. ECF No. 28. The Petitioner filed
objections on June 5, 2019. ECF No. 29. Having timely filed
his objections, this Court will review the Petitioner's
objections to the R&R de novo. The Court will
review the remainder of the R&R for clear error.
R&R, Magistrate Judge Trumble recommends that the §
2241 petition be dismissed with prejudice because the
Petitioner has not shown there is a genuine issue of fact for
trial. Specifically, Magistrate Judge Trumble found the
Petitioner was provided all the due process required for a
disciplinary proceeding. It is clear the Petitioner was
informed of his due process rights prior to the hearing and
acknowledged his rights. Further, the Petitioner received
notice of the charges more than twenty-four hours prior to
the disciplinary hearing, he was given the specific evidence
relied on to support the findings, he was permitted to
present evidence at the hearing, he was offered staff
representation and the Discipline Hearing Officer was an
Magistrate Judge Trumble found that there is some evidentiary
basis to support the Discipline Hearing Officer's
decision. Specifically, “[t]he reasons listed by the
[Discipline Hearing Officer] for his finding include the
statement of the reporting staff member in the Incident
Report and the motive of the Petitioner to lie.” ECF
No. 27 at 13.
Petitioner's objections, he argues that while Magistrate
Judge Trumble has stated the Federal Bureau of Prisons'
policy, this is not the policy he is alleging was violated.
The Petitioner further states that “the video being
destroyed was a violation of F.B.O.P. policy.” ECF No.
29 at 2. The Petitioner's argument is the same argument
he set forth in his petition. Magistrate Judge Trumble
considered the Petitioner's argument when finding that
the Petitioner's due ...