United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on respondent's motion for
summary judgment (DE 15) pursuant to Federal Rule of Civil
Procedure 56(a). For the following reasons, the court grants
respondent's motion for summary judgment.
OF THE CASE
is a state inmate currently serving a life sentence without
parole for first-degree murder. State v. Nelson, 221
N.C.App. 434, 727 S.E.2d 25, 2012 WL 2308492 (2012) On
February 25, 2015, North Carolina Department of Public Safety
officials charged petitioner, then incarcerated at Harnett
Correctional Institution, with the disciplinary offense of
using gang-related codes or symbols in a letter, an A 14
offense (Resp't. Ex. 1 (DE-17-1) at 11).
Petitioner was given written notice that he would appear
before a disciplinary hearing officer (“DHO”).
(Id. at 17). On March 11, 2015, the DHO conducted a
disciplinary hearing. (Id. at 13). After reviewing
the evidence, the DHO determined that petitioner committed
the offense. (Id.). The DHO hearing record included
the following summary:
INMATE WAS ADVISED OF HIS RIGHTS AND A SUMMARY WAS READ.
INMATE PLED NOT GUILTY TO THE A14 OFFENSE WITH A SUMMARY AS
FOLLOWS. SGT. W. DAVIS STATES THAT ON 2-25-15 AT APPROX. 1115
HE REVIEWED A LETTER WRITTEN BY INMATE TORY NELSON THAT WAS
RETURNED TO THE INSTITUTION MARKED, “ RETURN TO
SENDER.” UPON REVIEW OF THE LETTER HE OBSERVED THAT
INMATE NELSON HAD USED “CC IN THE PLACE OF WORDS THAT
ENDED IN “CK.” SGT. DAVIS, THE FACILITY STG
[SECURITY THREAT GROUP] OFFICER, DETERMINED THIS TO BE
RELATED TO THE STG CRIPS [GANG] WHO USES THIS PRACTICE AS A
WAY OF DISRESPECTING THE UBN [UNITED BLOOD NATION]. INMATE
NELSON MADE A WRITTEN STATEMENT. HE REQUESTED WRITTEN
STATEMENTS FROM INMATES JASON TOMAS, WILLIAM HYMAN, AND
PATRICK BLUE. HE REQUESTED SAME AS LIVE WITNESSES. HE
REQUESTED EVIDENCE BUT DID NOT INDICATE WHAT HE WANTED. HE
DID REQUEST STAFF ASSISTANCE WHICH WAS PROVIDED BY OFFICER L.
FOWLER. INMATE STATES THE WAY HE WRITES AND SPELLS IS THE WAY
HE GREW UP. THAT IS THE WAY EVERYBODY FROM HIS SIDE OF TOWN
WRITES. THAT'S HOW HE EXPRESSES HIMSELF AND HAS NOTHING
TO DO WITH ANY GANG BECAUSE HE IS NOT IN A GANG. INMATE
VERBALLY STATED THE SAME DURING THE HEARING. INMATE P. BLUE
STATES HE HAS KNOWLEDGE OF THIS LETTER. HE IS FAMILIAR WITH
STREET TALK BUT HE IS NOT IN A GANG. HE DOES USE STREET TALK.
INMATE W. HYMAN STATES HE IS NOT SURE OF THE CONTENTS OF THE
LETTER BECAUSE HE WAS NOT THERE WHEN IT WAS WRITTEN, NOR IS
HE TOO FAMILIAR WITH INMATE NELSON. HE STATES WHAT WAS
EXPLAINED TO HIM AS IN THE LETTER IS SOMETIME USED AS SLANG
OR A SHORT WAY OF USING THE WORD. THAT'S ALL HE CAN SAY.
INMATE J. THOMAS WROTE, “NO COMMENT.” I ASKED I/M
NELSON WHAT HE WANTED AS EVIDENCE AS IS REQUIRED BY POLICY.
HE INDICATED THE LETTER IN QUESTION WHICH WAS SHARED WITH
HIM. NONE OF THE REQUESTED LIVE WITNESSES WERE CALLED TO
APPEAR AS ONE REFUSED TO WRITE A STATEMENT AND THE REMAINING
TWO INDICATED THEY HAD NOT SEEN THE LETTER AND HAD LITTLE TO
NO KNOWLEDGE REGARDING IT. THE ONLY STATEMENT OF ANY LENGTH
WAS INMATE HYMAN. HIS STATEMENT WOULD HAVE MADE ANY TESTIMONY
DUPLICATIVE AND REPETITIOUS. BASED ON THE REPORTING
PARTY'S STATEMENT AND ALL EVIDENCE PROVIDED I AM FINDING
THE INMATE GUILTY WITH PRESUMPTIVE PUNISHMENT IMPOSED TO
DETER THIS TYPE OF BEHAVIOR IN THE FUTURE. APPEAL RIGHTS
EXPLAINED AND A FORM WAS PROVIDED.
result of the DHO's findings, petitioner was sanctioned
with the following: (1) 60 days of segregation; (2) 40 days
lost of sentence reduction credits; (3) 50 hours extra duty;
and (4) 180 days of suspended visitation and canteen
privileges. (Id. at 11). On April 16, 2015,
petitioner's disciplinary conviction was affirmed on
appeal. (Id. at 3). Petitioner did not challenge his
disciplinary conviction in North Carolina state courts.
(See Pet'r. Resp. (DE 20) at 4).
March 11, 2016, petitioner filed this pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, in
which he challenges his disciplinary conviction on the
grounds that he was denied due process in his disciplinary
proceedings. (Pet. (DE 1) at 2-11). Respondent filed the
instant motion for summary judgment on May 18, 2017, and
petitioner filed a timely response. In this posture, the
issues raised are ripe for adjudication.
Standard of Review
judgment is appropriate when there exists no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986). The party
seeking summary judgment bears the burden of initially coming
forward and demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party then must affirmatively demonstrate that
there exists a genuine issue of material fact requiring
trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). There is no issue
for trial unless there is sufficient evidence favoring the
non-moving party for a jury to return a verdict for that
party. Anderson, 477 U.S. at 250.
contends the DHO's decision violated his due process
rights. As an initial matter, petitioner did lose 40 days of
sentence reduction credits. However, under North Carolina
law, sentence reduction credits do not shorten the length of
a life sentence but merely apply to custody status, parole
eligibility, and potential commutation. Jones v.
Keller, 698 S.E.2d 49 ( N.C. 2010), cert.
denied, 131 S.Ct. 2150, 179. Therefore, petitioner, as
an inmate sentenced to life imprisonment in North Carolina,
does not have liberty interest in sentence reduction credits.
See Waddell v. Dep't of Corr., 680 F.3d 384, 395
(4th Cir. 2012). Because Petitioner does not have a
cognizable liberty interest, he fails to state a due process
claim. Id.; see, e.g., Bartlett v. Perry,
No. 5:14-HC-2046-F, 2015 WL 4910144, at *2 (E.D. N.C. Aug.
petitioner has not exhausted his state court remedies.
(Pet'r. Resp. (DE 20) at 4). Therefore, in the
alternative, the action is dismissed due to petitioner's
failure to exhaust those remedies. See 28 U.S.C.
§ 2254(b)(1)(A); O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999) (“Before a federal court may
grant habeas relief to a state prisoner, the prisoner must
exhaust his remedies in state court. In other words, the
state prisoner must give the state courts an opportunity to
act on his claims before he presents those claims to a
federal court in a habeas corpus petition.”);
Tompkins v. Thomas, No. 5:10-HC-2004-BO, ...