JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on Petitioner's motion for recusal [Doc. 15] and Respondent's motion for summary judgment [Doc. 16]. At the time of the filing of his Petition, Petitioner was confined in the Federal Bureau of Prisons ("BOP") at the Edgefield Federal Correctional Institution. [Doc. 1-2 at 1.] He is proceeding pro se and in forma pauperis under 28 U.S.C. § 1915, and he seeks relief under 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned magistrate judge is authorized to review the instant habeas Petition and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on July 20, 2018.
Petitioner was convicted after a jury trial of one count of forgery of a passport, one count of use and attempted use of a false passport, and five counts of wire fraud, and was sentenced on October 11, 2013, to 77 months' imprisonment to be followed by a three-year term of supervised release. See United States v. Roudabush, 578 F. App'x 292, 293 (2014); [Doc. 16-1 at 6].
Petitioner is challenging a loss of Good Conduct Time (GCT) credits. [Doc. 1 at 1.] He received an incident report on January 2, 2018 (Incident Report No. 3073430), for Code 208 and 203 violations for improper use of a security device and threatening another with bodily harm, respectively. [Id.; Doc. 16-2 at 3.] A Disciplinary Hearing Officer ("DHO") held a hearing on January 17, 2018, and Petitioner was found guilty of the Code 208 violation and the Code 203 violation, which was reduced to a Code 312 (insolence towards a staff member) violation. [Docs. 1 at 1; 16-2 at 3.] As a result, the DHO imposed a penalty for the Code 208 violation of 15 days of disciplinary segregation, loss of 27 days of GCT, and loss of 6 months' commissary privileges; for the Code 312 violation, Petitioner received a penalty of 15 days of disciplinary segregation, loss of 14 days of GCT, and loss of phone privileges for three months. [Docs. 1 at 1-2; 16-2 at 8.]
Petitioner filed a notice of appeal at the BP-10 level on April 20, 2018. [Docs. 1 at 2; 16-1 at 2-3.] That appeal was rejected as untimely insofar as it was not filed within 20 days of the incident giving rise to the complaint. [Docs. 1 at 2; 16-1 at 2-3.] Petitioner did not submit any appeal of the rejection for untimeliness of his BP-10-level appeal, and he has never submitted any administrative appeal at the BP-11 level. [Doc. 16-1 at 3.]
On July 20, 2018, Petitioner filed this § 2241 Petition challenging the outcome of the DHO proceeding. [Doc. 1.] Petitioner alleges the DHO Report was served on him on January 29, 2018, and that he was in the Special Housing Unit ("SHU") and was therefore unable to file a timely appeal. [Doc. 1 at 2-3.] On that basis, he asserts that he has exhausted his administrative remedies. [Id.] As grounds for challenging the DHO's decision, Petitioner contends the DHO was not independent [id. at 3]; instead of reducing the Code 203 charge to a Code 312 charge, the DHO should have expunged the Code 203 charge because he found the evidence did not support the charge [id. at 4]; the punishment for the Code 312 violation was too severe [id.]; Petitioner committed only one violation but was improperly charged with two [id.]; disciplinary segregation is not allowed for his Code violations [id.]; loss of privileges was not an appropriate sanction [id. at 5]; Petitioner was improperly charged with the Code 208 violation [id. at 5-6]; the sanctions are too severe for the misconduct charged [id. at 6]; and Petitioner was denied equal protection of the law and the Incident Report was retaliatory [id.].
For his relief, Petitioner seeks (1) expungement of the Incident Report from his record; (2) return of all GCT disallowed for the Incident Report; and (3) recalculation of his GCT time.
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S.97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is "attack[ing] the computation and execution of the sentence rather than the sentence itself." United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (per curiam). A petition pursuant to § 2241 challenging the execution of a federal prisoner's sentence generally addresses "such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions." Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (citing Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997)); see also Manigault v. Lamanna, No. 8:06-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) ("A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers."). A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434-35 (2004), and "in the district of confinement rather than in the sentencing court," Miller, 871 F.2d at 490.
The execution of sentences and the computation of jail time is an administrative function under the authority of the Attorney General, who has delegated this task to the BOP, including the responsibility for computing time credits and determining a sentence termination date once a defendant actually commences serving his sentence. United States v. Wilson, 503 U.S. 329, 334-35 (1992) (clarifying that 18 U.S.C. § 3585(b) does not authorize a district court to award credit at sentencing, and the Attorney General must continue to compute credits as he did under the predecessor statute to § 3585). Accordingly, the Attorney General, through the BOP, must make the initial determination to award sentence credit for time spent in official detention; a district court does not have the jurisdiction to make an initial determination. United States v. Jeter, 161 F.3d 4, at *1 (4th Cir. 1998) (unpublished table decision). As a result, prior to filing a § 2241 habeas petition, a petitioner must exhaust his administrative remedies. McClung v. Shearin, 90 F. App'x 444, 445 (4th Cir. 2004) (citing Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001); Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir. 1981)). The exhaustion of administrative remedies is not waivable. Jeter, 161 F.3d 4, at *2. Further, a petitioner's failure to exhaust administrative remedies is excused only upon a showing of cause and prejudice. McClung, 90 F. App'x at 445 (citing Carmona, 243 F.3d at 634-35).
The BOP's Administrative Remedy Program is found at 28 C.F.R. §§ 542.10 through 542.19. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written complaint with the institution's warden; complaints must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director; appeals to the Regional Director must be submitted within twenty days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel; appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id.
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts have required prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in a § 2241 matter); Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (noting courts require "exhaustion of alternative remedies before a prisoner can seek federal habeas relief" (internal quotation marks omitted)). Exhaustion allows prison officials to develop a factual record and "an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Jones v. Bock, 549 U.S. 199, 204 (2007). Any arguments not advanced at each step of the administrative appeal are procedurally defaulted. See Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir. 2002). Moreover, if a prisoner cannot obtain an administrative remedy because of his failure to timely appeal at the administrative level, then the prisoner has procedurally defaulted his § 2241 claim, unless the prisoner can demonstrate cause and prejudice for the failure. See, e.g., Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3rd Cir. 1996), cited with approval in Watkins v. Compton, 126 F. App'x 621, 622 (4th Cir. 2005); Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994).
Upon review of Petitioner's motion for recusal, the undersigned finds recusal unnecessary. Petitioner does not provide, nor is the undersigned aware of, any basis upon which recusal or disqualification of the undersigned magistrate judge would be appropriate in this matter. See generally 28 U.S.C. § 455; Nakell v. Attorney Gen. of N.C., 15 F.3d 319, 325 (4th Cir. 1994) (noting that a judge is presumed to be qualified and there is a substantial burden to show grounds for believing the contrary); Rochester v. Laubshire, No. 6:12-236-RBH, 2012 WL 2805717, at *2-3 (D.S.C. July 10, 2012) (finding where a judge is named as a defendant and is assigned to the case the requirement to disqualify himself is not absolute; such as where a litigant vexatiously sues a judge or makes frivolous allegations against the judge and is abusing the judicial system). And, for the same reason, it is recommended that United States District Judge Bruce Howe Hendricks should not recuse herself.
Respondent argues that Petitioner failed to exhaust his administrative remedies as to the claim in his Petition because he did not appeal the rejection, for untimeliness, of his challenge to the disciplinary action at the BP-10 level, and he failed to submit any appeals at the BP-11 level. [Doc. 16 at 7.] Petitioner asserts that his failure to meet the filing deadline for his BP-10-level challenge should be excused because the factors that prevented him from meeting the filing deadline were beyond his control and, indeed, were caused by Respondent. [Doc. 22 at 5.] But Respondent correctly points out that BOP Policy contemplates such claims and provides mechanisms for prisoners to present them. [Doc. 16 at 8.] Specifically, BOP Program Statement 1330.18, Administrative Remedy Program, Section 8(b), allows for a prisoner to request that the deadline be extended
Respondent maintains that Petitioner simply filed the BP-10-level challenge after the applicable deadline without ever presenting his argument that circumstances warranted an extension of the deadline. [Doc. 16 at 8-9.]
Respondent also argues that Petitioner further bypassed an opportunity to present his arguments after his BP-10-level challenge was rejected as untimely. [Id. at 8.] Section 11(a) and (b) allow the rejection of a procedurally deficient complaint with notice to the complainant of how the complaint may be remedied and a deadline to resubmit the complaint. Section 11(c) provides.
Respondent argues that Petitioner "did not avail himself of this process as he did not submit any appeal of his rejection" at the BP-10 level. [Id.] Rather, he chose simply to present to this Court the circumstances that he claims prevented him from filing his BP-10-level appeal within the 20 days allowed. Respondent therefore maintains that regardless of the validity of Petitioner's excuses for failing to file his BP-10-level challenge within the time allowed, Petitioner failed to exhaust his administrative remedies with regard to his challenge to the rejection of his BP-10-level challenge on untimeliness grounds. For that reason, Respondent argues that it is entitled to summary judgment.
In his response opposing Respondent's summary judgment motion, Petitioner does not dispute the facts on which Respondent's failure-to-exhaust argument is based. Rather, Petitioner makes two legal arguments regarding the issue of exhaustion, both of which are easily dealt with. First, he denies that a prisoner filing a § 2241 is legally required to exhaust administrative remedies. [Doc. 22 at 5.] But the Court has already noted that exhaustion is required. See Braden, 410 U.S. at 490-91 (requiring exhaustion in a § 2241 matter); Timms, 627 F.3d at 531 (noting courts require "exhaustion of alternative remedies before a prisoner can seek federal habeas relief" (alteration and internal quotation marks omitted)).
Petitioner also maintains that his challenge at the BP-10 level was wrongly rejected as "untimely" because any failure by Petitioner to meet the time deadlines for filing his BP-10-level appeal was due to factors beyond his control. [Doc. 22 at 5.] But Petitioner's argument fails to address Respondent's correct assertion that Petitioner was required to present this argument at the administrative level via the mechanisms BOP Policy provided him. For this reason, the Court concludes that Petitioner has not exhausted his administrative remedies with respect to the claim before the Court, that Respondent is entitled to judgment as a matter of law. The Petition must therefore be dismissed.
Wherefore, based upon the foregoing, the Court recommends that Petitioner's motion for recusal [Doc. 15] be DENIED; Respondent's motion for summary judgment [Doc. 16] be GRANTED; and the Petition [Doc. 1] be DENIED.
IT IS SO RECOMMENDED.
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:
The undersigned notes that in Respondent's memorandum in support of its motion for summary judgment, Respondent requests that the Court impose sanctions against Petitioner pursuant to Rule 11 of the Federal Rules of Civil Procedure. [Doc. 16 at 23-27.] However, Rule 11(c)(2) provides that motions for Rule 11 sanctions "must be made separately from any other motion." Because Respondent has failed to comply with that procedural requirement, the Court will deny Respondent's Rule 11 request without prejudice. See Brethren Mut. Ins. Co. v. Sears, Roebuck & Co., No. WDQ-12-0753, 2014 WL 3428931 (D. Md. July 10, 2014) (denying motion for sanctions under Rule 11 partly because movants "combined their motion for Rule 11 sanctions with their motion for Rule 37 sanctions, their request to reopen discovery, and their motion for leave to file a third-party complaint, in violation of Rule 11(c)(2) (citing Allie v. Whole Foods Mkt. Grp., Inc., 746 F.Supp.2d 773, 778 (E.D. Va. 2010)); see also Brickwood Contractors, Inc., v. Datanet Eng'g, Inc., 369 F.3d 385, 389 (4th Cir. 2005) (en banc) ("It is clear from the language of [Rule 11] that it imposes mandatory obligations upon the party seeking sanctions, so that failure to comply with the procedural requirements precludes the imposition of the requested sanctions.").
