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Buholtz v. Wilson

United States District Court, E.D. Virginia, Richmond Division

June 3, 2016

KENNETH LEO BUHOLTZ, Petitioner,
v.
ERIC D. WILSON, Respondent.

          MEMORANDUM OPINION (ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE

         Kenneth Leo Buholtz, a federal inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2241 ("§ 2241 Petition, " ECF No. 1). Buholtz raises a due process challenge to his conviction within the Bureau of Prisons ("BOP") for the institutional infraction of fighting with another inmate. On April 22, 2016, the Magistrate Judge issued a Report and Recommendation wherein he recommended that the § 2241 Petition be denied because Buholtz failed to demonstrate entitlement to relief. Buholtz has filed objections. ("Objections, " ECF No. 13.) For the reasons that follow, Buholtz's Objections will be overruled, the Motion for Summary Judgment will be granted, and the Report and Recommendation will be accepted and adopted.

         I. THE REPORT AND RECOMMENDATION

         The Magistrate Judge made the following findings and recommendation:

         A. Standard for Summary Judgment

         Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). It is the responsibility of the party seeking summary judgment to inform the Court of the basis for the motion, and to identify the parts of the record that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and admissions on file, ' designate 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.R.Civ.P. 56(c) and 56(e) (1986)).

         In reviewing a summary judgment motion, the Court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251 (citing Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "'[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party . . . upon whom the onus of proof is imposed.'" Id. (quoting Munson, 81 U.S. at 448). Additionally, "'Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials ....").

         In support of his Motion for Summary Judgment, Respondent submits: (1) the Declaration of Cornelia Coll, a Paralegal Specialist at the Federal Correctional Complex in Butner, North Carolina (Mem. Supp. Mot. Summ. J. Ex. 1 ("Coll Decl."), ECF No. 7-1); (2) Buholtz's BOP sentence computation records (id. Attachs. 1-2); (3) records from Buholtz's disciplinary proceedings for the charge of fighting with another inmate (id. Attach. 3); and, (4) records of Buholtz's administrative remedy requests (id. Attach. 4). Buholtz filed a Response; however, he failed to swear to its contents under penalty of perjury. See United States v. White, 366 F.3d 291, 300 (4th Cir. 2004) (emphasizing that unsworn argument does not constitute evidence). Buholtz's § 2241 Petition, however, is sworn to under penalty of perjury and therefore may be considered in opposition to Respondent's Motion. See Williams v. Griffin, 952 F.3d 820, 823 (4th Cir. 1991).

         In light of the foregoing principles and submissions, the following facts are established for purposes of the Motion for Summary Judgment. The Court draws all permissible inferences in favor of Buholtz.

         B. Summary of Pertinent Facts

         On March 22, 2013, the United States District Court for the Eastern District of Texas sentenced Buholtz to 120 months of imprisonment for transportation of minors, in violation of 18 U.S.C. § 2423(a). (Coll Decl. ¶ 4.) Buholtz is currently incarcerated at the Federal Correctional Complex in Petersburg, Virginia. (Id.) At the time of the incident that forms the basis of his § 2241 Petition, Buholtz was incarcerated at the Federal Correctional Institution in Big Spring, Texas ("FCI Big Spring"). (Id.)

         On January 26, 2014, staff at FCI Big Spring completed an investigation into an allegation that Buholtz had been involved in a physical altercation with another inmate on December 16, 2013. (Id. Attach. 3, at 1.) That same day, staff filed an Incident Report charging Buholtz with a violation of Code 201, Fighting With Another Person. (Id.) Buholtz received a copy of the Incident Report that day. (Id.) At that time, he was advised of his institutional rights. (Id. at 2.) He requested no witnesses to testify on his behalf. (Id.) Three days later, on January 29, 2014, staff again advised Buholtz of his institutional rights, including the right to call witnesses at his hearing. (Id. at 3.) At that time, Buholtz again indicated that he did not desire to call any witnesses on his behalf. (Id.) Buholtz also declined the assistance of a staff representative. (Id.)

         The Unit Discipline Committee referred the charge to the Discipline Hearing Officer ("DHO") for further review. (Id. at 1.) The DHO held a hearing on February 4, 2014. (Id. at 5.) The DHO confirmed that Buholtz "received a copy of the incident report, did not want a staff representative, did not want to call witnesses, and had no documentary evidence to present." (Id. at 6.) During the hearing, Buholtz admitted to calling the other inmate "a bitch." (Id. at 5.) He claimed that the other inmate hit him from behind. (Id.) Buholtz contended that he was not fighting, but was attacked by the other inmate. (Id.; see also § 2241 Pet. 7, 12.)[1]

         The DHO found that Buholtz had committed a violation of Code 201, Fighting With Another Person. (Coll Decl. Attach. 3 at 6.) The DHO based that finding on the Inmate Investigative Report, BOP Health Services Clinical Encounters for both Buholtz and the other inmate, and photographs. (Id. at 6-7.) In his first interview, Buholtz told prison officials that he had slipped and hit himself on a locker. (Id. at 6.) However, the other inmate immediately admitted to interviewers that he had been in a physical altercation with Buholtz. (Id.) The evidence also established that after the incident, Buholtz and the other inmate "both had injuries consistent with fighting." (Id.) In his report, the DHO ...


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