United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DISMISSING
CIVIL ACTION WITH PREJUDICE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se petitioner, Steven Braggs, is incarcerated
at FCI Hazelton where he is serving a sentence imposed by the
United States District Court for the District of
Massachusetts. ECF No. 1 at 1-2. The petitioner filed a
Petition for Habeas Corpus Under 28 U.S.C. § 2241, in
which he states he “received an incident report (No.
3121440) based on an officer's discovery of a cell phone
on 5-7-2018.” ECF No. 1-1 at 1. According to the
petitioner, “[t]he [Disciplinary Hearing Officer
(“DHO”)] conducted a hearing on 6-26-2018,
finding [the petitioner] guilty of the offense, 108 -
possession of a hazardous tool.” Id. The
petitioner states that the DHO “imposed a sanction of
loss of good conduct time (41 days); Disciplinary Segregation
(30 days); Loss of commissary, telephone, and visitation for
6 months.” Id. The petitioner alleges that he
was provided “the written findings [on] 7-31-18, which
was 35 days after the hearing, violating the policy of 20
days, and denying [the petitioner] an opportunity to
appeal.” Id. For relief, the petitioner seeks
that this Court “vacate [his] conviction/expunge [his]
record restore [his] good conduct time.” ECF No. 1 at
respondent then filed a motion to dismiss or, in the
alternative, motion for summary judgment (ECF No. 10) and a
memorandum in support thereof (ECF No. 11). In his memorandum
in support, the respondent first asserts that the petitioner
received all due process required by Wolff v.
McDonnell, 418 U.S. 539 (1974), regarding Incident
Report No. 3121440. ECF No. 11 at 9. Specifically, the
respondent states that the petitioner: (1) received written
notice of the charges against him more than twenty-four hours
in advance of his DHO hearing; (2) was provided a detailed
statement of the facts giving rise to the charge against him;
(3) was offered, but declined an opportunity to present
witnesses and documentary evidence on his behalf; (4) was
offered, but declined the assistance of a staff
representative; and (5) was provided an impartial
decision-maker who based his decision solely on the facts
presented at the hearing. Id. at 9-10. Moreover, the
respondent asserts that the petitioner fails to explain how
delivery of the DHO report prevented him from appealing the
decision. Id. at 10. The respondent cites 28 C.F.R.
§ 541.8(h), stating that the regulations do not provide
a time period for when the DHO written report is to be
provided. Id. at 11. Further, the respondent
contends that the evidence relied upon by the DHO was
sufficient for a finding of guilt in the petitioner's
case. Id. at 12. Specifically, the respondent states
that the DHO relied upon (1) the written report of Senior
Officer R. Zigarski; (2) documentary evidence in the form of
a photograph visually depicting the cell phone and altered
fan; and (3) the petitioner's admission of guilt.
Id. at 13. Third, the respondent asserts that the
petitioner has failed to exhaust his administrative remedies
regarding Incident Report No. 3121440. Id. at 14. In
support, the respondent states that the petitioner: (1) has
not filed any administrative requests and (2) admits that he
did not exhaust his administrative remedies. Id. at
petitioner did not file a response to the respondent's
motion to dismiss. The Court sent a
Roseboro notice, notifying the petitioner of his
right and obligation to file a response to the
respondent's motion to dismiss or, in the alternative,
motion for summary judgment. ECF No. 12. The petitioner
received the Roseboro notice (ECF No. 12) on April
11, 2019. ECF No. 13.
civil action was referred to United States Magistrate Judge
James P. Mazzone under Local Rule of Prisoner Litigation
Procedure 2. Magistrate Judge Mazzone issued a report and
recommendation recommending that the respondent's motion
to dismiss or, in the alternative, motion for summary
judgment (ECF No. 10) be granted, and that the
petitioner's petition be denied and dismissed with
prejudice. ECF No. 14 at 11. The petitioner did not file
objections to the report and recommendation. For the
following reasons, this Court affirms and adopts the report
and recommendation in its entirety.
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
As to findings where no objections were made, such findings
and recommendations will be upheld unless they are
“clearly erroneous or contrary to law.” 28 U.S.C.
§ 636(b)(1)(A). Because the petitioner did not file any
objections to the report and recommendation, the magistrate
judge's findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A).
report and recommendation, the magistrate judge correctly
found that the petitioner failed to exhaust his remedies.
Id. at 8. The magistrate judge properly noted that
although the petitioner maintains that the Bureau of Prisons
(“BOP”) failed to provide him with written
findings preventing him from appealing, BOP policy does not
mandate that an inmate receive a report within a specified
time. Id. Therefore, the magistrate judge correctly
concluded that there is no violation of the
Accardi Doctrine, and the petitioner's habeas
petition is subject to dismissal for failure to exhaust.
Id. at 8-9. Moreover, the magistrate judge properly
determined that the petition fails to state a proper ground
for relief. Id. at 9. Specifically, the magistrate
judge correctly found that the petitioner was provided all
the due process that is required in disciplinary proceedings,
and that the DHO's decision was supported by “some
evidence” in accordance with Superintendent v.
Hill, 472 U.S. 455 (1985). Id. at 9-10. Lastly,
the magistrate judge properly stated that a § 2241 claim
only permits a petitioner to assert a liberty interest and
that loss of good credit time, the sanctions that petitioner
was subject to, and changes in the petitioner's security
classification do not involve a liberty interest.
Id. at 10-11.
review, this Court finds no clear error in the determinations
of the magistrate judge and thus upholds his recommendation.
reasons set forth above, the report and recommendation of the
magistrate judge (ECF No. 14) is AFFIRMED and ADOPTED in its
entirety. The respondent's motion to dismiss or, in the
alternative, motion for summary judgment (ECF No. 10) is
GRANTED, and the petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241 (ECF No. 1) is DENIED and DISMISSED
Court finds that the petitioner was properly advised by the
magistrate judge that failure to timely object to the report
and recommendation in this action would result in a waiver of
appellate rights. Because the petitioner has failed to
object, he has waived his right to seek appellate ...