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Hammoud v. Mosley

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

July 30, 2018

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

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 39) 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, except as modified below, 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. Petitioner was charged with "fighting with another prisoner" in violation of Bureau of Prisons ("BOP") Code 201 while he was in custody at FMC (Federal Medical Center)-Fort Worth. (Dkt. No 1-1 at 18.) The incident report stated that on January 31, 2017, Petitioner alleged that he returned to his cell and asked his cellmate to leave so he could change his clothes in private. (Dkt. No. 1-1 at 4.) Petitioner alleged that his cellmate attacked him, and that Petitioner responded by attempting to grab his cellmate to gain control and, in the process, threw his cellmate onto the bunk. (Id.) The matter was eventually referred to a Discipline Hearing Officer ("DHO") on February 6, 2017. (Dkt. Nos. 25-3, 25-4.) Petitioner was advised of his rights and elected to call one inmate as a witness. (Dkt. No. 25-3.) The hearing was held on February 9, 2017, but because of staff oversight Petitioner's requested witness was not present. (Dkt. No. 25-6 at 2.) While the DHO informed Petitioner that the hearing would be postponed until the witness arrived, Petitioner waived his right to the witness and asked to proceed with the hearing. (Id.). The DHO found that Petitioner committed the prohibited act as charged, relying on documentary evidence and Petitioner's admission to fighting. (Id.) Petitioner was sanctioned with 27 days disallowance of Good Conduct Time, 15 days of disciplinary segregation, loss of phone for 90 days, loss of email for 90 days, loss of commissary for 90 days, and loss of visits for 90 days. (Id.) The DHO Report was marked as delivered on March 21, 2017. (Dkt. No. 25-6 at 3.)[1]

         On March 9, 2017, twelve days before service of the DHO's decision, Petitioner appealed the decision to the Southeast Regional Office. (Dkt. No. 1-1 at 12.) On April 12, 2017, the Regional Office upheld the disciplinary action and sanctions. (Dkt. No. 101 at 10 - 11.) After correcting his filing with the Central Office, Petitioner successfully appealed his decision. (Dkt. No. 1-1 at 5.) The Central Office denied the appeal on November 9, 2017. (Dkt. No. 25-9.)

         On September 8, 2017, Petitioner petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2241. (Dkt. No. 1.) Petitioner presents two claims in his petition: first, due process violations since he allegedly did not receive a written statement of the DHO's decision, and; second, that the BOP has deliberate indifference to Petitioner's safety. (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. 25.) Petitioner filed a response in opposition. (Dkt. No. 34.)

         The Magistrate Judge, reviewing the record, recommended that Respondent's motion for summary judgment be granted since Petitioner's due process rights were not violated and deliberate indifference is not a cognizable claim under a § 2241 petition. (Dkt. 39.) Petitioner filed objections to the R & R on June 25, 2018. (Dkt. No 44.)

         II. Legal Standard

         A. Summary Judgment[2]

         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 the record in order to accept the recommendation." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted).

         Petitioner filed objections to the Magistrate Judge's conclusion that he received a copy of the DHO report, therefore that portion of the R & R is reviewed de novo. The Court reviews the R & R regarding Petitioner's deliberate indifference claims for clear error.

         III. ...


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