United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (ADOPTING REPORT AND
RECOMMENDATION AND DISMISSING ACTION)
E. HUDSON UNITED STATES DISTRICT JUDGE
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.
THE REPORT AND RECOMMENDATION
Magistrate Judge made the following findings and
Standard for Summary Judgment
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)).
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 ....").
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.
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.
Summary of Pertinent Facts
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
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.)
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.)
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