United States District Court, E.D. North Carolina, Western Division
Alonzo Greene, Petitioner, Pro se, Lillington, NC.
For Cynthia Thornton, Respondent: Clarence J. DelForge, III, LEAD ATTORNEY, N. C. Dept. of Justice, Raleigh, NC.
LOUISE W. FLANAGAN, United States District Judge.
This matter came before the court on the motion for summary judgment (DE 10) pursuant to Federal Rule of Civil Procedure 56 of respondent Cynthia Thorton (" respondent"). Also before the court is petitioner's motion to appoint counsel (DE 13). Petitioner responded to respondent's motion, and respondent did not respond to petitioner's motion. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants respondent's motion and denies petitioner's motion.
STATEMENT OF CASE
On July 28, 2014, petitioner filed this action pursuant to 28 U.S.C. § 2254, challenging a November 8, 2013, prison disciplinary conviction he received for a (C-09) offense for allegedly bartering and trading his spot in the canteen line, and a (B-19) offense of misusing medication by possessing two loose Tylenol pills not in a prescription bottle. (Pet. Ex. A.) As punishment, petitioner received a total of sixty (60) days segregation (suspended for three months), sixty (60) hours extra duty, sixty (60) days suspended privileges (suspended for three months), and four months limited account withdrawals. (Id.) On November 27, 2013, petitioner's disciplinary convictions were affirmed on appeal. (Resp't's Mem. Attach. p. 24.)
Respondent subsequently filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. The motion was fully briefed. On September 5, 2014, petitioner filed a motion to appoint counsel.
STATEMENT OF FACTS
The facts found at petitioner's prison disciplinary hearing are as follows:
30 day extension requested and granted due to [disciplinary hearing officer] schedule. Inmate advised of his rights and a summary was read. The inmate pled not guilty to the charges with a summary of the case as follows; Sgt. Davis states that on 10/15/13 at approx. 1000 hrs he observed inmate Green selling spots in the L-Dorm canteen line. He states that he observed inmate Ross walk up and take inmate Greene's spot in the line. He indicated that when inmate Ross completed his transaction he handed inmate Greene some canteen items. He states that he had inmate Greene escorted to his location and he searched the inmate. He discovered the inmate in possession of two loose pills that were identified as Tylenol. The inmate also had two Lance Honey and peanut butter crackers and a Honey bun in his possession. He states that he asked the inmate for his receipt and the inmate indicated the he had thrown it away. The inmate stated that he was prescribed the medication. The inmate made a written statement and requested for statements from inmates Ross and Stroud. He requested the same to appear as live witnesses and for physical evidence to be reviewed. The inmate requested for staff assistance however waived that right indicating to me it was not needed. The inmate stated that this write-up is retaliation as Sgt. Davis has called him a grievance writer. He states that he was not selling spots and that the Tylenol was prescribed to him. The inmate stated the same during the hearing adding that he did have the canteen items in his possession when searched but indicated that they were his and he had them in his possession when he left the dorm. Inmate Ross made " no statement." Inmate Stroud indicated that he had left the area but while he was there didn't see anything done wrong. He indicated that he later found out Greene was locked up. Inmate Ross indicated he had " no statement" and inmate Ross indicated he was not a witness to misconduct. Therefore based on relevance they were not called as live witnesses. This DHO did review the evidence in the inmate's presence as requested. Based on the reporting party's statement and the evidence provided I am finding the inmate guilty with presumptive punishment reduced after considering his overall history, imposed to deter this type of behavior in the future. Contraband to be handled according to policy. Appeal rights explained and a form was provided.
(Pet. Ex. A 2.)
A. Motion to Appoint Counsel
Petitioner requests that the court appoint counsel to assist him with litigating this action. There is no constitutional right to counsel in habeas corpus actions. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Under 18 U.S.C. § 3006A(a)(2)(B), a court may appoint counsel in a habeas corpus proceeding if it determines that " the interests of justice so require." At this point, the court does not perceive issues of great legal complexity, and ...