United States District Court, D. South Carolina, Orangeburg Division
Wissam T. Hammoud, Petitioner,
Bonita T. Mosley, Warden, Respondent.
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
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.
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
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.)
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.)
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.)
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.
Magistrate's Report and Recommendation
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
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.