REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

This case has been filed by the Petitioner, pro se, pursuant to 28 U.S.C. §2241. Petitioner, an inmate with the Federal Bureau of Prisons (BOP), contests his conviction on a disciplinary charge. The Respondent filed a motion to dismiss and/or for summary judgment on September 29, 2017.

As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on October 3, 2017, advising the Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case. However, on October 16, 2017, Petitioner filed a motion to compel stating that he had not received the Respondent's motion, and requesting the Court to order the Respondent to send him a copy of the motion (the "document"). In response, Respondent filed a certificate of service stating that the document was originally mailed to Petitioner on September 29, 2017, but was returned on October 16, 2017 with the notation "Cannot Identify: Name or Number." Respondent represents that it then re-mailed the document on October 16, 2017 (to the same address showing on Petitioner's envelope, which is also the same address listed on this case). See Court Docket No. 23. Pursuant to these filings, on November 3, 2017, the Court granted Petitioner's motion and directed the Respondent to file a certificate of service showing service of the document on the Petitioner. The Court further ordered Petitioner to file his response within thirty (30) days from the date shown on the certificate of service.

Respondent filed a notice reflecting service again on the Petitioner by mail to his address on November 17, 2017 and a certificate reflecting the same. However, notwithstanding the specific advice and instructions set forth in the Court's Roseboro Order, Plaintiff has failed to file a response to the motion for summary judgment, which is now before the Court for disposition.1

Background

Petitioner is an inmate at the Federal Correctional Institution in Bennettsville, South Carolina. See Court Docket Nos. 1-1, 22-1. On April 30, 2016, Petitioner was charged with a violation of Code 297 [Circumventing the Phone Monitoring Procedures]. See Respondent's Exhibit 3 [Incident Report]. The Code 297 charge was based on Petitioner using another inmate's pin number to make a telephone call. See Respondent's Exhibit 6 [Discipline Hearing Officer Report], § V. Following an investigation, during which Petitioner stated he had "no comment" on the charge, the matter was referred to the Unit Discipline Committee (UDC) for processing. See Respondent's Exhibit 3, at ¶ ¶ 24, 27. A UDC hearing was then held on May 3, 2016, at which Petitioner stated, "I needed an emergency, I had to check on a friend of mine". The matter was then referred to a Disciplinary Hearing Officer (DHO). Id., Part II, ¶ ¶ 17-19.

Petitioner was provided a Notice of Rights, of which he acknowledged receipt, on May 3, 2016. See Respondent's Exhibits 4 [Notice of Discipline Hearing] and 5 [Inmate Rights at Discipline Hearing]. Petitioner waived his right to have a staff representative and to call witnesses. Id. A disciplinary hearing was then convened on May 12, 2016. See Respondent's Exhibit 6, § I. B. Petitioner was present and again advised of his rights, which Petitioner indicated he understood. Id, § III and § V. The Petitioner again declined the assistance of a staff representative, and indicated that he did not wish to have witnesses testify. Id, § II, III.C. Petitioner also admitted that the charged incident was true. Id., § III.A. Petitioner stated, "My visitor left visitation with an illness and I wanted to check on her. I didn't have any minutes and my email has not worked for a couple of weeks, so I used another inmate phone to make a call." Id, § III.B. The DHO therefore found Petitioner guilty of committing the prohibited act, and imposed sanctions including disallowance of 27 days good conduct time and loss of phone privileges for 90 days. Id, § VI. Petitioner received a written copy of this decision on May 16, 2016. Id, § V, VII, and IX.

In this § 2241 Petition, Petitioner asserts the following claims:

See Petition, pp. 7-8.

Petitioner seeks to have the incident report and conviction dismissed and expunged from his institutional record, and to have his 27 days of good time credits restored.

I.

(Exhaustion of Administrative Remedies)

Federal prisoners must exhaust their administrative remedies prior to filing a § 2241 Petition. Kurfees v. I.N.S., 275 F.3d 332, 336 (4th Cir. 2001); Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987). Although § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies before seeking habeas review under § 2241. See, e.g., Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490-91 (1973) [requiring exhaustion in a § 2241 matter]; Timms v. Johns, 627 F.3d 525, 530-33 (4th Cir. 2010) [same].

Clark v. Mosley, No. 17-219, 2017 WL 4990537, at *5 (D.S.C. Sept. 25, 2017), report and recommendation adopted, 2017 WL 5027347 (D.S.C. Oct. 30, 2017).

Respondent does not dispute that the Petitioner appealed the DHO decision throughout the administrative remedy process, where the disciplinary action and sanctions were upheld, and that Petitioner has therefore exhausted his available administrative remedies as to Grounds One and Two of his Petition. However, with regard to Ground Three of the Petition, Amy Williams, Legal Assistant for the United States Department of Justice, attests that Petitioner did not raise any claim about Prison Program Statement 5270.09, Inmate Discipline Program, being unconstitutionally vague or a violation of due process of law. See Williams Affidavit, ¶1, 6, and 7. Moreover, the Plaintiff attached copies of his Regional and Central Office Appeals to his Complaint, and those documents confirm that Petitioner did not assert his Ground Three claim as part of the administrative remedy process. See Exhibits Attached to Petition.

As previously discussed, Petitioner has not responded to and/or contested Respondent's motion, and there is therefore no evidence before the Court to contradict that he did not properly pursue an administrative remedy with respect to his asserted Ground Three. Accordingly, Ground Three should be dismissed for failure to exhaust administrative remedies as to that issue.

II.

(Ground Two)2

In his Ground Two, Petitioner contends that the DHO did not comply with the procedures set place in Program Statement 5270.09 and therefore violated his due process right to present a defense. Specifically, Petitioner contends that the Program Statement states inmates have a "due process" right to present an adequate defense, but that he was denied the right to do. See Petition (Ground Two).

With respect to Petitioner's due process claim3, in the prison disciplinary setting, an inmate is entitled to only a minimal standard to due process, and if the following requirements are satisfied, prison officials have met this minimal standard:

Wolff v. McDonnell, 418 U.S. 539, 563-576 (1974); Luna v. Pico, 356 F.3d 481, 487-488 (2d Cir. 2004).

Here, the evidence clearly shows that the Petitioner was given advance written notice of the charge, that he was advised that the matter was being referred to the DHO for hearing, and that he was provided with a Notice of Hearing before the DHO as well as with a copy of his Inmate Rights. Petitioner himself signed these documents. See Respondent's Exhibits 4 and 5. The DHO hearing was thereafter conducted on May 12, 2016, at which Petitioner was present and participated, following which the DHO found Plaintiff guilty of the charges, setting out in writing the reasons for his findings and conclusion. See Respondent's Exhibit 6, I.B, III and IV. As part of his findings, the DHO specifically noted that he relied on the written statement of the reporting staff member, C. Wallace, that he also relied on Petitioner's statement at the hearing that he "needed to make a call due to an emergency. I had to check on a friend of mine", and that he relied on the copies of the TRUPHONE account dated April 30, 2016. See Respondent's Exhibit 6, V. While Respondent's Exhibit 6 apparently contains a scrivener's error regarding the date and time of the phone call, the DHO clearly states that he relied on Wallace's written report, and Petitioner does not contest that Wallace's written incident report correctly reflects the correct time and call at issue. See Respondent's Exhibit 3, ¶ 11. Moreover, while Petitioner asserts that this scrivener's error interfered with his due process rights and right to present his defense because he was not on notice of the specific call at issue, Petitioner's own admission contradicts his assertion. Petitioner himself admitted that he made the call at issue and offered the excuse that he did so due to an emergency. Hence, Petitioner clearly understood which call was at issue and had resulted in the charge. Further, Petitioner does not state how he was prejudiced by this error, and it is therefore harmless. Adams v. Zatecky, No. 14-238, 2014 WL 6908495, at *2 (S.D. Ind. Dec. 8, 2014)(citing Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir.2003)[error harmless unless prisoner shows how he is prejudiced]).

The DHO also found that upon Petitioner's commitment to the Bureau of Prisons, he had participated in the Admission and Orientation ("A&O") program where he was advised of the rules and regulations along with his responsibility to abide by these rules. See Respondent's Exhibit 6, § V. The DHO further found that Petitioner was provided an A&O handbook upon his entry into the facility, which further details prohibited acts, and that Petitioner's participation in A&O and knowledge of BOP rules and regulations further established his culpability. Id. The DHO then explained how the action/behavior of an inmate to use the telephone system in an unauthorized manner poses a serious threat to the ability of the staff to control the use of the telephone. Id., VII. The DHO found that Petitioner's actions interfered with the ability of the staff to monitor whether inmates are making calls for prohibited or illegal purposes, and that the unauthorized use of the telephone poses a serious threat to the welfare of the general public, in that threats and other illegal activities can be made against individuals. Id. The DHO then specifically stated that the sanctions imposed were to let the Petitioner know that he and he alone is responsible for his actions. Id. Hence, the first two criteria of the Wolff due process standard were clearly met.

With respect to the third criteria, the record shows that despite being aware of which call was at issue and his admission and acknowledgment that he made the call, Petitioner did not request any witnesses or present any other evidence to challenge the charge. On May 3, 2016, after his UDC hearing, the Petitioner was advised of his right to call witnesses and he elected not to call any witnesses. See Respondent's Exhibits 4 & 5. Thereafter, on May 12, 2016, the DHO again advised Petitioner of his right to call witnesses, and Petitioner again did not request to call any witnesses. See Respondent's Exhibit 6, § III. Wolff, 418 U.S. at 566; cf. Boyd v. Finnan, 348 Fed. Appx. 160, 162 (7th Cir. Oct. 9, 2009)[Finding no prejudice to prisoner from use of written witness statement instead of live testimony, and holding that "[f]ishing for unspecific statements from potential witnesses is not among due process protections afforded prisoners in disciplinary proceedings."].

No violation of Wolff is shown in this evidence. Therefore, to the extent Petitioner is asserting that he did not receive due process in his disciplinary proceedings, his claim is without merit.

(Ground One)

As for Petitioner's claim that there was insufficient evidence to convict him of a Code 297 offense, to sustain a conviction in the institutional setting, the fact finder need only show that some evidence existed to support his conclusion. Superintendent, Massachusetts Correction Institution v. Hill, 472 U.S. 445, 456-457 (1985); see Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003). The Supreme Court in Superintendent evidenced a distaste for allowing the federal courts to review the outcome of prison disciplinary actions, and under the applicable caselaw a disciplinary decision is sufficient to pass scrutiny under the due process clause if it is supported by "some" evidence. Id; Baker v. Lyles, 904 F.2d 925 (4th Cir. 1990); Sales v. Murray, 862 F.Supp. 1511 (W.D.Va. 1994); McClung v. Shearin, No. 03-6952, 2004 WL 225093 (4th Cir. Feb. 6, 2004); see also Chevron U.S.A. v. Natural Res. Def. Cil., Inc., 467 U.S. 837, 844 (1984)[Agency's decisions are not to be second-guessed by federal courts unless they are arbitrary, capricious, or manifestly contrary to the statute].

It is a violation of Code 297 for an inmate to use the telephone in a manner so as to circumvent the prison's telephone monitoring procedures for purposes other than for criminal activity. See Petitioner's Exhibit A (Court Docket No. 1-2, p. 3). The evidence before the Court in this case clearly shows that Petitioner was given advance written notice of the charges, that he appeared at the hearing, gave a statement, and was afforded the opportunity to obtain witnesses and present documentary evidence (which he declined). Evidence from the reporting employee (C. Wallace) was that, on April 30, 2016, while monitoring live inmate calls, Wallace listened to a call purportedly placed by inmate Kelly Kenyard to a number from phone station 6914 in unit Alpha Three. However, when Wallace called the unit officer via telephone and requested that he positively identify the inmate using phone station 6914, the unit officer, C. Hamilton, called him back and stated that Petitioner, not Kelly Kenyard, was the inmate using the phone. See Respondent's Exhibits 3, ¶ 11; Respondent's Exhibit 6, V4. In addition to this evidence, the DHO also had Petitioner's own admission that he used another inmate's pin number to make a call, and considered Petitioner's statements during the initial investigation and UDC hearing. Specifically, during the UDC hearing, Petitioner stated "I needed to make a call due to an emergency. I had to check on a friend of mine." Id. The DHO also relied on the copies of the TRUPHONE account from April 30, 2016, the date of the phone call. Id. The DHO therefore found Petitioner guilty of the charge, setting forth in writing the evidence and rationale for his decision, all of which meets the standards of Superintendent and its progeny.

In sum, the record contains ample evidence to support the conviction in this case. As such, this claim is without merit.

Conclusion

Based on the foregoing, it is recommended that the Respondent's motion be granted, and that this Petition be dismissed, with prejudice.

The parties are referred to the Notice Page attached hereto.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).