United States District Court, N.D. West Virginia, Elkins
ORDER DISMISSING PETITION
Preston Bailey, Judge
case is now before the Court for consideration of the
Respondent's Motion to Dismiss or, Alternatively, Motion
for Summary Judgment [Doc. 11], filed April 18, 2019. On
November 1, 2018, petitioner filed his § 2241 petition
[Doc. 1]. Therein, he asserts one (1) ground for relief.
Subsequent to the instant Motion, this Court issued a
Roseboro Notice [Doc. 12] informing the petitioner
of his right and obligation to file a response within
twenty-one (21) days of the Order, and cautioned him that
failure to so respond may result in entry of a dismissal
order. Petitioner failed to respond, and the time to do so
has since expired. For the reasons that follow, the §
2241 petition is DISMISSED.
Motion to Dismiss
complaint must be dismissed if it does not allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)
(applying the Twombly standard and emphasizing the
necessity of plausibility). When reviewing a motion
to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must assume all of the allegations
to be true, must resolve all doubts and inferences in favor
of the plaintiff, and must view the allegations in a light
most favorable to the plaintiff. Edwards v. City of
Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999).
rendering its decision, the Court should consider only the
allegations contained in the Complaint, the exhibits to the
Complaint, matters of public record, and other similar
materials that are subject to judicial notice.
Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312
(4th Cir. 1995), vacated on other grounds, 517 U.S.
1206 (1996). In Twombly, the Supreme Court, noting
that “a plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do,
” id. at 555, upheld the dismissal of a
Complaint where the plaintiffs did not “nudge[ ] their
claims across the line from conceivable to plausible.”
Id. at 570. Although courts are to liberally
construe pro se pleadings, pro se pleadings
are not exempt from “Twombly's requirement
that a pleading contain more than labels and
conclusions.” Giarratano, 521 F.3d at 304 n.5.
Motion for Summary Judgment
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of
law.” A genuine issue exists “if the
evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Thus, the Court
must conduct “the threshold inquiry of determining
whether there is the need for a trial-whether, in other
words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may
reasonably be resolved in favor of either
party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” That is, once the movant has met its
burden to show absence of material fact, the party opposing
summary judgment must then come forward with affidavits or
other evidence demonstrating there is indeed a genuine issue
for trial. “If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted.”
pro se party's pleadings are generally construed
more liberally and held to a less stringent standard than
pleadings drafted by an attorney. See Hughes v.
Rowe, 449 U.S. 5, 9 (1980). However, even under that
deferential standard, this Court can “pierce the veil
of a complaint's factual allegations and dismiss those
claims whose factual contentions are clearly baseless.”
Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Due Process Requirements
Ground One, petitioner asserts “[t]he BOP has violated
the Accardi Doctrine and my Due Process rights
during my Disciplinary Proceedings.” [Doc. 1 at 10]. In
support, petitioner avers as follows: “I was not
provided my DHO report, (aka written findings of fact) this
report must be provided within the 20 day time period, from
the date of the hearing. Failure to do so violates the
Accardi Doctrine and my Due Process rights. This
requires the vacature of the guilty finding against
me.” Id. The incident report, No. 3154969,
charged petitioner with a Code 108 violation -
“Possession, Manufacture, and Introduction of a
Cellphone.” The DHO sanctioned petitioner fifteen (15)
days disallowance of Good Conduct Time, a forty-one (41) day
loss of Good Conduct Time, thirty (30) days in disciplinary
segregation, and a six (6) month loss of commissary,
telephone, and visiting privileges. As relief, the petitioner
seeks to expunge Incident Report No. 3154969 and to restore
his good time credits, his privileges, and that his custody
classification be properly re-calculated.
Supreme Court has identified the following due process
requirements for inmate disciplinary actions: (1) written
notice of the charges must be given to the inmate at least
twenty-four hours before his appearance in front of the
prison disciplinary board; (2) prison disciplinary officers
must make a written statement describing the evidence relied
upon and supply reasons for any disciplinary actions; (3) the
inmate must be allowed to call witnesses and present evidence
at the disciplinary hearing unless allowing this would be
unduly hazardous to institutional safety or correctional
goals; (4) if illiterate or the hearing involves a complex
matter, the inmate must be granted the opportunity to have a
non-attorney representative assist him throughout the
disciplinary process; and (5) the decision-maker must be
impartial. Wolff v. McDonnell, 418 U.S. 539, 564-571
despite the petitioner's claims, he was clearly provided
with notice of the “Possession, Manufacture, and
Introduction of a Cellphone” charge at least
twenty-four hours before his August 23, 2018, disciplinary
hearing by receiving written notice on August 18, 2018. See
Exh. 1, Gettinger Decl., Attachment C (Incident Report No.
3159649) and Attachment E (DHO Report for Incident No.
3159649). Second, the statement has a detailed description of
the evidence taken directly from the Incident Report.
Id. at Attachment C. Third, the petitioner was given
the opportunity to call witnesses and present evidence, but
the petitioner declined. Id. at Attachment D.
Fourth, the petitioner was provided the opportunity to have a
representative at the hearing. Id. at Attachment F.