United States District Court, N.D. West Virginia, Wheeling
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS OR.
IN THE ALTERNATIVE. FOR SUMMARY JUDGMENT
PRESTON BAILEY, UNITED STATES DISTRICT JUDGE.
March 15, 2019, the petitioner, an inmate incarcerated at FCI
Hazelton in Bruceton Mills, West Virginia, filed a
pro se Petition for Habeas Corpus Pursuant to 28
U.S.C. §2241 challenging a prison disciplinary hearing.
[Doc. 1]. On September 5, 2019, the respondent filed a Motion
to Dismiss or, in the Alternative, for Summary Judgment.
[Doc. 9]. On October 3, 2019, the petitioner filed a
response. [Doc. 13]. On October 17, 2019, the respondent
filed a reply. [Doc. 14]. Having been fully briefed, this
matter is now ripe for decision. For the reasons stated
below, this Court will grant the respondent's motion to
AND PROCEDURAL HISTORY
Petition, petitioner challenges a delay in providing him with
a Disciplinary Hearing Officer ("DHO") report
following a DHO hearing on January 17, 2019. [Doc. 1-1 at 1].
The petitioner received the DHO report on February 21, 2019,
35 days after the hearing, which he alleges violates a BOP
policy requiring reports to be given within fifteen days.
Id. at 1-2. Petitioner alleges that following a DHO
hearing, an inmate has twenty days to file an administrative
appeal; although he acknowledges that Hazelton staff allows
filing of an appeal within twenty days of receiving the DHO
report, he contends "this is not allowed by
policy." Id. at 2. Petitioner acknowledges that
he has not exhausted administrative remedies, but argues that
exhaustion should be excused here because "staffs
actions clearly violate the statutory and constitutional
rights of [petitioner]." Id. at 3.
September 5, 2019, the respondent filed the instant motion to
dismiss or, in the alternative, for summary judgment. [Doc.
9]. In its memorandum in support, the respondent argues that,
first, petitioner received due process required in a
disciplinary action; second, petitioner's request for
custody classification is not a cognizable habeas claim; and
third, petitioner has failed to exhaust administrative
remedies. [Doc. 10 at 2]. In particular, the respondent
points out that while BOP policy states that DHO reports are
"ordinarily" provided within 15 work days of the
decision, there is no time period requirement for providing a
DHO report. Id. at 8.
response, the petitioner argues that the respondent's
position is unreasonable; he contends that the government is
relying on an unreasonable, unpublished case. [Doc. 13 at
2-3]. He further argues that because of the respondent
failing to meet this 15 day requirement, the respondent
should be barred from raising failure to exhaust
administrative remedies as a defense. Id. at 3. In
reply, the respondent points out that, on at least four
recent occasions, this Court "has addressed this exact
issue and determined that BOP policy does not mandate that an
inmate receive a DHO report within 15 days of a hearing or
within any specified time." [Doc. 14 at 1-2] (citations
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. 554, 570 (2007) (emphasis
added)." Giarratano v. Johnson, 521 F.3d 298,
302 (4th Cir. 2008). 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
plaintiffs, and must view the allegations in a light most
favorable to the plaintiffs. 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). In Twombly, the Supreme Court,
noting that "a plaintiffs 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.
Court is well aware that "[m]atters outside of the
pleadings are generally not considered in ruling on a Rule 12
Motion." Williams v. Branker, 462 Fed.Appx.
348, 352 (4th Cir. 2012). "Ordinarily, a court may not
consider any documents that are outside of the Complaint, or
not expressly incorporated therein, unless the motion is
converted into one for summary judgment." Witthohn
v. Fed. Ins. Co., 164 Fed.Appx. 395, 396 (4th Cir.
2006). However, the Court may rely on extrinsic evidence if
the documents are central to a plaintiffs claim or are
sufficiently referred to in the Complaint. Id. at
this Court notes that pro se allegations are held to a less
stringent standard than those drafted by lawyers and must be
liberally construed. Haines v. Kerner, 404 U.S. 519,
520 (1972); Hudspeth v. Figgins, 584 F.2d 1345, 1347
(4th Cir. 1978).
Motion for Summary Judgment
of the Federal Rules of Civil Procedure provides that 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." Fed.R.Civ.P.
56(c); see Celotex Corp. v. Catrett,477 U.S. 317,
322 (1986). A genuine issue exists "if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party." Anderson v. Liberty Lobby,
Inc.,477 U.S. 242, 248 (1986). 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 ...