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Villarreal v. Rickard

United States District Court, S.D. West Virginia, Bluefield

April 26, 2018

FRANCISCO VILLARREAL, Plaintiff,
v.
BARBARA RICKARD, Warden, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge

         I. Introduction

         By Standing Order, this action was referred to United States Magistrate Judge Omar J. Aboulhosn for submission of proposed findings and recommendation (“PF&R”). Magistrate Judge Aboulhosn submitted his proposed findings and recommendation on August 5, 2016. In that Proposed Findings and Recommendation, the magistrate judge recommended that this court dismiss plaintiff's application for Writ of Habeas Corpus, and remove this matter from the court's docket.

         In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Aboulhosn's Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985). Moreover, this court need not conduct a de novo review when a petitioner “makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Plaintiff filed timely objections to the Proposed Findings and Recommendation on August 15, 2016. The court has conducted a de novo review of the record as to those objections. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.”).

         II. Background

         On July 23, 2015, plaintiff filed an Application for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. § 2241. In that filing, he contends that he was denied due process during prison disciplinary proceedings that resulted in a loss of good time credits. Specifically, Villarreal contends that his due process rights were violated based upon disciplinary action he received as a result of a rehearing conducted at FCI McDowell. The disciplinary action originated while Villareal was housed at Big Spring Correctional Center (“BSCC”) in Texas, a private facility which contracts with the Bureau of Prisons (“BOP”) to house federal inmates. See Petition, ECF Nos. 1 and 2. Villarreal contends that the Discipline Hearing Officer (“DHO”) at FCI McDowell did not have authority to rehear an incident report which was written and based upon conduct that occurred at a private facility. See ECF No. 2.

         Villarreal had a DHO hearing on January 28, 2014 at BSCC for an incident occurring on December 21, 2013, charging him with unauthorized possession of a cell phone. See ECF No. 9-1 and exhibits attached thereto. The DHO found that Villareal committed the prohibited act and imposed the following sanctions: 41 days disallowance of good conduct time, 60 days disciplinary segregation, loss of commissary, phone, and visiting privileges for 18 months, and a monetary fine of $100.00. See id.

         On March 4, 2015, Villarreal filed an administrative remedy (Remedy ID No. 813126-R1) challenging the disciplinary action taken against him at BSCC. See id. Specifically, he challenged the authority of a DHO who was employed by a private corporation to administer discipline. See id. Villarreal's administrative remedy was partially granted and the BOP's Mid-Atlantic Regional Office remanded the Incident Report for a rehearing at Villarreal's then current place of incarceration, FCI McDowell.

         Villarreall received a rehearing on Incident Report Number 2535958 on April 27, 2015 at FCI McDowell in front of a BOP DHO, R. Devereaux. See id. At the rehearing, the DHO imposed the same sanctions as were imposed at the previous hearing, including 41 days disallowance of good conduct time, 60 days disciplinary segregation (already served), loss of commissary, phone, and visiting privileges for 18 months, and a monetary fine of $100.00. See id.

         Magistrate Judge Aboulhosn recommended that the court dismiss plaintiff's § 2241 because Villarreal failed to exhaust his administrative remedies with respect to his claim that the DHO at FCI McDowell did not have authority to rehear an incident report which was written and based upon conduct that occurred at a private facility. Magistrate Judge Aboulhosn also briefly considered the merits of plaintiff's claim and concluded that the BOP had the authority to rehear the incident and impose discipline.

         Villarreal objects to the PF&R's conclusion that he was required to exhaust his administrative remedies. According to Villarreal, “[t]he exhaustion requirements do not exten[d] to prisoners who have received incident reports while they were not in the FBOP” and that exhaustion in this case would be futile. ECF No. 24 at p.3. He also contends that “[t]he exhaustion of administrative remedies would lead Petitioner right back to this court, to file the same writ all over again- and the respondent would entertain the exact same defense- dealing with this particular situation. Therefore, the exhaustion of remedies to this extent would . . . be futile. . . .” Id.

         A plaintiff is not excused from exhausting his administrative remedies because he anticipates that he will not succeed. “Absent a clear showing that an administrative agency has taken a hard and fast position that makes an adverse ruling a certainty, a litigant's prognostication that he is likely to fail before an agency is not a sufficient reason to excuse the lack of exhaustion.” Thetford Props. IV Ltd. P'ship v. U.S. Dept. of Housing & Urban Dev., 907 F.2d 445, 450 (4th Cir. 1990)(holding that allowing parties “to avoid the administrative process on their unsupported allegation of futility would allow the futility exception to swallow the exhaustion rule”); Hunter-Bey v. McGrew, No. ED CV 14-00261-RGK(DFM), 2015 WL 1730369, *3 (C.D. Cal. Apr. 14, 2015)(“[E]xcusing the exhaustion requirement would foreclose the agency from using its expertise to reach a decision that would correct any mistake, or, alternatively, develop a record to make the claim appropriate for judicial review.”); Dagley v. Johns, No. 5:11-HC-2179-FL, 2012 WL 2589996, *2 (E.D. N.C. July 3, 2012)(“[A] petitioner's conclusory prediction of failure is not sufficient to excuse his lack of administrative exhaustion.”); Wright v. Warden, FCI-Cumberland, Civil Action No. RDB-10-671, 2010 WL 1258181, *1 (D. Md. Mar. 24, 2010) (“Unless the agency is certain to rule adversely, however, a petitioner's unsupported prediction of failure does not excuse his lack of administrative exhaustion.”).

         Villarreal has presented no facts showing the administrative procedure to be inadequate or its result predetermined. Indeed, plaintiff successfully appealed his original DHO action, ultimately having it remanded for rehearing at FCI McDowell. See ECF No. 9-1 and exhibits attached thereto. Thus, plaintiff's exhaustion objection fails. However, even if plaintiff's claim had been properly exhausted, he still would not be entitled to habeas relief.

         As to Villarreal's objections reaching the merits of whether FCI McDowell could rehear the matter and impose sanctions for conduct occurring at BSCC, the court finds them to be without merit. This case is similar to an earlier case in which this court adopted the Proposed Findings and Recommendation of United States Magistrate Judge Cheryl A. Eifert. See Pena-Carrizoza v. Bragg, No. 1:14-cv-25696, 2016 W; 7155764, *1 (S.D. W.Va. Dec. 7, 2016). In her PF&R, Magistrate Judge Eifert considered several of the ...


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