Ihmoud, Walid v. Jett, Brian

Filing 9

Opinion

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604 Submitted April 2, 2008* Decided April 3, 2008 Before MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DIANE S. SYKES, Circuit Judge No. 073979 WALID IHMOUD, PetitionerAppellant, v. No. 1:06cv1823SEBJMS BRIAN JETT, RespondentAppellee. Sarah Evans Barker Judge. O R D E R Federal inmate Walid Ihmoud brought suit claiming that prison authorities extorted restitution payments from him. Ihmoud is serving a prison term of 38 years for arson and mail fraud, and as part of his sentence he was ordered to pay restitution of over a million Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division

After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P. 34(a)(2).

*

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dollars "immediately" or, if he was not able to make a lumpsum payment, in monthly installments of at least $500 beginning upon his release from prison. The sentencing court also recommended that Ihmoud participate in the Inmate Financial Responsibility Program (IFRP) to develop a payment schedule during his incarceration. See 28 C.F.R. §§ 545.1011. Ihmoud did enroll in the IFRP and executed an agreement permitting the Bureau of Prisons (BOP) to withdraw monthly payments of $77 from his prison account in order to pay restitution. He became unhappy with the prison's application of the IFRP, however, and mailed "notices" to several prison authorities asserting that the withdrawals were unlawful. He did not seek resolution of his objections through the prison's administrative remedy process, though, instead choosing to go directly to federal court. The district court construed his complaint as a petition for habeas corpus relief and dismissed the suit because Ihmoud had not exhausted his administrative remedies. Ihmoud appeals the denial of his petition, arguing that he did exhaust his administrative remedies and that the district court should have construed his submission as a Bivens suit. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The IFRP is a means of executing an inmate's sentence, and thus complaints about the BOP's administration of the program are cognizable under 28 U.S.C. § 2241. See Matheny v. Morrison, 307 F.3d 709, 71112 (8th Cir. 2002) (stating that challenges to IFRP collection mechanisms concern execution of sentence and are therefore correctly framed as section 2241 claims); McGhee v. Clark, 166 F.3d 884, 88587 (7th Cir. 1999) (recognizing districtcourt jurisdiction over claims arising from implementation of IFRP); Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998) (stating that motion seeking relief on grounds concerning execution of sentence but not validity of conviction falls under section 2241). Ihmoud accordingly has no basis for complaining that the district court treated his submission as a petition under section 2241. Valona, 138 F.3d at 694. But regardless how the district court construed his claim, Ihmoud was still required to exhaust his administrative remedies before seeking recourse in federal court. See Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004) (observing that commonlaw exhaustion rule applies to section 2241 actions); Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (noting that exhaustion is a precondition to filing a Bivens suit); McGhee, 166 F.3d at 887 (holding that challenge to IFRP collection methods must be administratively exhausted). Ihmoud argues that the "notices" he mailed to various prison authorities constituted sufficient use of the BOP's administrative machinery to overcome the exhaustion requirement. But proper exhaustion requires that an inmate comply with the BOP's rules governing filing and prosecution of a complaint. See Woodford v. Ngo, 126 S.Ct. 2378, 2385 86 (2006); Richmond, 387 F.3d at 604; Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Ihmoud did not even attempt to make use of the BOP's administrative remedy process, let

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alone exhaust it. See 28 C.F.R. §§ 542.1315 (outlining requirements that inmate must first attempt to resolve the issue informally with a staff member, then file a written complaint with the warden, then appeal to the regional director and finally the general counsel). The district court properly denied Ihmoud's petition. See McGhee, 166 F.3d at 887. AFFIRMED.