United States District Court, N.D. West Virginia
THUAN M. PHAM, Petitioner,
JENNIFER SAAD, Warden, Respondent.
REPORT AND RECOMMENDATION
MICHAEL J. ALOI UNITED STATES MAGISTRATE JUDGE
April 24, 2017, the pro se Petitioner, an inmate
currently incarcerated at FCI Hazelton in Bruceton Mills,
West Virginia, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, challenging a disciplinary
hearing in which he was sanctioned for use of a cell phone to
locate personal information about a BOP employee. ECF No. 1.
Pursuant to an Amended Notice of Deficient Pleading, on May
19, 2017, Pham paid the $5.00 filing fee. ECF No. 7.
22, 2017, the Respondent was ordered to show cause why the
writ should not be granted. ECF No. 8. On June 19, 2017, the
Respondent filed a Motion to Dismiss with a memorandum in
support, attaching, in support of said motion, documentation
including inter alia, a sworn declaration by a
Bureau of Prisons (“BOP”) paralegal to support
his allegation that the Petitioner had failed to exhaust his
administrative remedies before filing the petition. ECF No.
11-1. On June 20, 2017, a Roseboro Notice was
issued. ECF No. 12. To date, Petitioner has not filed a
extent that exhaustion has been applied to habeas corpus,
such a requirement is not mandated by statute. Instead,
exhaustion prerequisites in habeas corpus actions arising
under § 2241 are merely judicially imposed.
See, e.g., Martinez v. Roberts, 804 F.2d
570 (9th Cir. 1996) (federal inmates are required to exhaust
their administrative remedies prior to filing a 2241
petition); Moscato v. Federal Bureau of
Prisons, 98 F.3d 757 (3rd Cir. 1996) (same);
McCallister v. Haynes, 2004 WL 3189469 (N.D. W.Va.
2004) (same). Because the exhaustion requirement is only
judicially imposed in habeas proceedings, it follows that a
Court has the discretion to waive that requirement in certain
circumstances. See LaRue v. Adams, 2006 WL 1674487
*8 (S.D. W.Va. June 12, 2006) (citing Smith v.
Angelone, 111 F.3d 1126, 1129-31 (4th Cir.) cert.
denied, 521 U.S. 1131 (1997)). Indeed, a number of
courts have found that the exhaustion requirement may be
waived where the administrative process would be futile.
See id. at *5-*7.
even in cases where the administrative process is unlikely to
grant an inmate relief, Courts have enforced a longstanding
policy favoring exhaustion. See Alexander v. Hawk,
159 F.3d 1321, 1327-28 (11th Cir. 1998). In particular, it
has been noted that the following policies are promoted by
requiring the exhaustion of administrative remedies:
“(1) to avoid premature interruption of the
administrative process; (2) to let the agency develop the
necessary factual background upon which decisions should be
based; (3) to permit the agency to exercise its discretion or
apply its expertise; (4) to improve the efficiency of the
administrative process; (5) to conserve scarce judicial
resources . . .; (6) to give the agency a chance to discover
and correct its own errors; and (7) to avoid the possibility
that ‘frequent and deliberate flouting of the
administrative processes could weaken the effectiveness of an
agency by encouraging people to ignore its
procedures.'” Id. at 1327 (citation
where exhaustion is not apparent from an inmate's
pleading, "a complaint may be dismissed on exhaustion
grounds so long as the inmate is first given an opportunity
to address the issue." Custis v. Davis, 2017
U.S. App. LEXIS 5147 (4th Cir. 2017)(quoting Moore v.
Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
case, Pham clearly has not exhausted his administrative
remedies and admits as much in his petition. ECF No. 13 - 14.
In addition, his petition offers no reason for not doing so;
he does not argue that doing so would be futile. Instead, he
merely notes that exhausting was
“N/A.” Id. at 13. Moreover, in failing
to file a response to the Warden's dispositive motion,
Pham has not availed himself of the opportunity to address
in reviewing the Respondent's response and its
attachments, it is clear that the Petitioner has now been
granted the relief he requested, and there is no further
relief which can be granted.
petition, Pham contends that while incarcerated at Adams
County Correctional Center, he received an incident report on
June 25, 2015, for his June 24, 2015 commission of the
Prohibited Act Code 108, Possession of a Hazardous Tool.
Id. at 5 & 7. He appeared at a July 7, 2015
disciplinary hearing; was found guilty, and sanctioned with
the loss of 41 days of good conduct time (“GCT”),
30 days loss of phone, and 30 days D/S time. Id. at 5
- 6. At the conclusion of the hearing, he informed the
Disciplinary Hearing Officer (“DHO”) J. Steven
(“Steven”) that he wanted to appeal the decision
and sanctions. Id. at 6. He contends that Steven
advised him that he would note Petitioner's wishes in the
record and request the appeal forms from “Ms. Gavett,
Grievance Coordinator.” Id. Petitioner
contends that he requested the appeal form from Ms. Gavett
himself, obtained it, filled it out and submitted it within
the 7-day period after his hearing. Id. He contends
that he was then transferred “about weeks [sic] after
he submitted his appeal.” Id. Thereafter, he
was transferred several more times before finally arriving at
FCI Gilmer, where he was informed that there was nothing in
his records regarding his appeal. Id. Accordingly,
he filed this petition, arguing that his due process rights
had been violated. Id.
Respondent filed what it styled as a motion to dismiss,
attaching the sworn declaration of Sharon Wahl (“Wahl
Decl.”), a paralegal for the Beckley Consolidated Legal
Center at FCI Beckley in Beaver, West Virginia [ECF No. 11-1
at 1 - 4]; a copy of Pham's Inmate Discipline Data
Chronological Disciplinary Record [id. at 6]; a copy
of Pham' Inmate Discipline Incident Report History
[id. at 8 - 9]; a copy of Pham's Inmate
Discipline Chronological Disciplinary Record [id. at
11]; a copy of Pham's Sentence Monitoring Good Time Data
as of June 15, 2017 [id. at 13]; and a copy of
Pham's Administrative Remedy Generalized Retrieval Full
Screen Format. Id. at 16 - 29. In its memorandum in
support, Respondent first notes that Pham's “only
substantive allegation is that his administrative appeal was
not properly processed.” ECF No. 11 at 1. Further,
Respondent notes that Pham never administratively exhausted
his claim. Finally, Respondent argues that Pham fails to
present a cognizable claim. Id. at 1 - 2.
and relying on the Wahl Declaration, Respondent reports that
on July 13, 2015, Pham was incarcerated at the Adams County
Correctional Facility (“ACC”) in Mississippi;
Wahl Decl., ECF No. 11-1, ¶ 8 at 2. The BOP contracts
with Corrections Corporation of America to house certain
federal inmates at the ACC. Id., ¶ 7 at 2. On
July 13, 2015, while Pham was incarcerated at the ACC, he was
sanctioned for allegedly using a cell phone to locate
personal information about an ACC employee. Id. at
¶¶ 6-8. He was placed in disciplinary segregation
for 30 days, lost phone privileges for 30 days, and lost 41
days of GCT. Id. at ¶ 8. In September 2015,
Pham arrived at FCI Gilmer. Id. at ¶ 5. Because
Pham was originally sanctioned by a discipline hearing
officer at a contract facility, the incident report was
remanded and will be reheard by a discipline hearing officer
at FCI Gilmer. Id. at ¶ 9. The original
discipline has been removed from Pham's record
[id. at ¶ 10] and the GCT time was restored to
him. Id. at ¶ 10.
the Wahl Declaration avers, that while Pham has 28 BOP
grievances, [id. at ¶¶ 12-13], he has
never filed any administrative grievances related to prison
discipline or the ...