Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tabor v. Entzel

United States District Court, N.D. West Virginia, Elkins

July 15, 2019

JAMEEL TABOR, Petitioner,
v.
FREDERICK ENTZEL, Warden, Respondent.

          ORDER DISMISSING PETITION

          JOHN PRESTON BAILEY UNITED STATES DISTRICT JUDGE

         This case is now before the Court for consideration of the Respondent's Motion to Dismiss or, Alternatively, Motion for Summary Judgment [Doc. 17], filed March 8, 2019. On August 29, 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. 18] 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.

         Legal Standards

         A. Motion to Dismiss

         A 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).

         When 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.

         B. Motion for Summary Judgment

         Summary 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.”[1] A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.”[2] 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.”[3]

         The party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.”[4] 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.[5] “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”[6]

         A 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).

         A. Due Process Requirements

         In Ground One, petitioner asserts “BOP staff failed to follow it's [sic] own policy and violated my rights to due process.” [Doc. 1 at 10]. In support, petitioner avers as follows: “BOP staff failed to properly follow policy when they conducted my disciplinary proceedings, they provided one report late and failed to provide the other report at all. These actions violate policy and also my rights, and my convictions must be thrown out.” Id. The petitioner was charged in two incidents. On December 16, 2017, while at FCI Gilmer, he was charged with a Code 113 prohibited offense of “Making, Possessing, or Using Intoxicants, ” incident report, No. 3067750. Incident report 3114229 charged petitioner with a Code 111A violation - “Introduction of Drugs or Narcotics (Attempted), ” and a Code 197 - “Phone Abuse-Criminal.” The DHO sanctioned petitioner a forty-one (41) day disallowance of Good Conduct Time, thirty (30) days in disciplinary segregation, forfeiture of fifty (50) days non-vested Good Conduct Time, and a one (1) year loss of commissary, email, telephone, and visiting privileges. As relief, the petitioner seeks to expunge the incident reports and to restore his good time credits, his privileges, and that his custody classification be properly re-calculated.

         The 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 (1974).

         First, despite the petitioner's claims, he was clearly provided with notice of the charges at least twenty-four hours before his February 7, 2018, disciplinary hearing by receiving written notice on December 16, 2017. See Exh. 1, Gyurke Decl., Attachment C (Incident Report No. 3067750) and Attachment F. 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 Attachments D & F. Finally, the petitioner does ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.