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Hammoud v. Mosley

United States District Court, D. South Carolina, Orangeburg Division

July 30, 2018

Wissam T. Hammoud, Petitioner,
Bonita T. Mosley, Warden, Respondent.


          Richard Mark Gergel United States District Court Judge

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 38) recommending that Respondent's motion for summary judgment (Dkt. No. 25) be granted. For the reasons set forth below, the Court adopts the R & R as the order of the Court and Respondent's motion for summary judgment is granted.

         I. Background

         Petitioner Wissam T. Hammoud is currently incarcerated at a Federal Correctional Institution ("FCI") in Edgefield, South Carolina. This Court adopts the facts as outlined in the R & R and therefore provides only a summary here. (Dkt. No. 38 at 1 - 4.)

         Petitioner was charged with a disciplinary charge under the Bureau of Prisons ("BOP") Code 296, which deals with the "use of mail for abuses...." (Dkt. No 1-1 at 18.) The incident report alleged that on February 8, 2017, prison officials at FMC-Fort Worth in Texas, where Petitioner was previously in custody, found a letter from his cellmate to another person in the mail that was addressed to Petitioner's wife. (Id.) Petitioner is on required mail monitoring. (Id.) At a hearing on March 7, 2017, a disciplinary hearing officer ("DHO") reviewed the charge. (Dkt. No. 25-6 at 2.) At the hearing, Petitioner contended that only he sent the letter to his brother, a doctor, in order to calm down his cellmate who was engaging in violent and disruptive behavior. (Dkt. No. 1 at 2.) The DHO found Petitioner guilty of the charge. (Dkt. No. 25-6 at 2.) The DHO imposed sanctions of loss of 27 days of Good Conduct Time, 5 days of disciplinary segregation, 90 days loss of phone, 90 days loss of email and 30 days loss of commissary. (Id.) Respondent's evidence shows that DHO's report was delivered to Petitioner on March 27, 2017. (Dkt. No. 25-6 at 3.)

         On March 17, 2017, before the report was delivered, Petitioner began the process of appealing the discipline and sanctions. (Dkt. No. 1-1 at 17.) On April 3, 2017, the Regional Office rejected the appeal, writing that "All four pages of your (BP-9) (BP-10 (BP-11) form must be legible and worded the same. Photocopies of the form will not be accepted." (Dkt. No. 1-1 at 15.) The rejection notice then ended with remarks, stating that "All 4 pages of our your [sic] BP-10 must be legible. Follow instructions and resubmit." (Id.) Petitioner was given fifteen days to resubmit the appeal in the proper form. (Id.) Instead of resubmitting, Petitioner appealed the Regional Office's rejection notice to the Central Office on April 21, 2017. (Dkt. No. 1-1 at 22.) The Central Office similarly rejected Petitioner's appeal, instructing Petitioner to "follow directions provided on prior rejection notices" and "correct errors and resubmit at the regional level. (Dkt. No. 1-1 at 21.)

         Petitioner did not follow these instructions, and instead resubmitted his initial appeal to the Regional Office no later than May 1, 2017. (Dkt. No. 1-1 at 17.) The Region rejected the appeal again on May 24, 2017, including the same direction as in the first rejection notice regarding how to cure the deficiencies in the filing, and further explaining that Petitioner needed to provide the "proper number of continuation pages" for the appropriate offices along with two extra copies of the appeal. (Dkt. No. 1-1 at 13.) Petitioner attempted to resubmit his appeal once more to the Regional Office and two more times to the Central Office before petitioning this Court. (Dkt. No. 1-1 at 7, 9 - 10.) All appeals were rejected as they were not in the proper form or not at the correct office. (Dkt. No. 1-1 at 7 - 8, 10.)

         On September 7, 2017, Petitioner petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner contends that it would have been futile for him to exhaust his administrative remedies since both the Regional and Central Offices failed to respond to his appeals and because he received incorrect procedural information from staff at FCI-Edgefield. (Dkt. No. 1 at 3.) The petition itself includes two claims: first, for due process violations since Petitioner allegedly did not receive a report from the DHO, and; second, that the Petitioner was retaliated against for exercising his purported First Amendment right to send a letter of complaint. (Dkt. No. 1 at 3 - 4.) Respondent filed a motion to dismiss or, in the alternative, for summary judgment on January 29, 2018. (Dkt. Nos. 15; 25.) Petitioner filed a response. (Dkt. No. 34.)

         The Magistrate Judge, reviewing the record, recommended that Respondent's motion for summary judgment should be granted since Petitioner failed to exhaust his administrative remedies, and that Petitioner failed to demonstrate the "extraordinary circumstances" necessary for a finding of futility. (Dkt. 38 at 10.) The Magistrate Judge did not proceed to review the merits as Plaintiffs claims were procedurally barred. (Dkt. No. 38 at 12 - 13.) Petitioner filed objections to the R & R on June 25, 2018. (Dkt. No 44.)

         II. Legal Standard

         A. Summary Judgment[1]

         Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact" and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In other words, summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996). 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).

         B. Magistrate's Report and Recommendation

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber,423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made. Fed.R.Civ.P. 72(b)(2). Where the plaintiff fails to file any specific objections, "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 ...

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