Russell (Zabad) v. Saad
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 41 THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND OVERRULING 45 THE PETITIONER'S OBJECTIONS: the respondent's motion to dismiss or, in the alternative, motion for summary j udgment 28 is hereby GRANTED, and the petition for habeas corpus under § 2241 1 is DISMISSED WITHOUT PREJUDICE. Additionally, the petitioner's motion to subpoena a witness 26 , motions to expedite 36 37 and motion for immediate rul ing 46 are DENIED AS MOOT. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Should the Petitioner choose to appeal she is ADVISED that she must file a notice of appeal with the Clerk of C ourt within 60 days after the date of the entry of this order. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/13/2017. (copy to counsel via CM/ECF; copy to Pro Se Petitioner via CM,rrr) (nmm) (Additional attachment(s) added on 3/13/2017: # 1 Certified Mail Return Receipt) (nmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAWN RUSSELL (ZABAD),
Civil Action No. 5:16CV49
JENNIFER SAAD, Acting Warden,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
AND OVERRULING THE PETITIONER’S OBJECTIONS
At issue is the pro se1 petitioner’s, a federal prisoner,
petition filed under 28 U.S.C. § 2241 (“§ 2241”).
conspiracy and nine substantive counts of passing and manufacturing
counterfeit checks in violation of 18 U.S.C. §§ 371 and 513.
United States District Court for the Western District of Kentucky
sentenced the petitioner to 41 months of imprisonment and three
years of supervised release.
The petitioner’s projected release
date via good conduct time (“GCT”) is May 24, 2017, and she is
incarcerated at FCP-Alderson, where the issues raised in this
§ 2241 petition arose.
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
In her petition, the petitioner alleges that she performed a
special work assignment regarding floor maintenance at FCP-Alderson
for which she was not compensated.
Specifically, the petitioner
claims she was promised an additional 90 days of GCT that she never
The petitioner also maintains that she was recommended
for 270 days of RRC/CCM/halfway time, but that her placement is
being delayed because of arbitrary actions by prison staff.
a preliminary review of the petition, the magistrate judge entered
an order to show cause directing the respondent, the acting warden,
to show cause why the writ should not be granted.
The respondent then filed a motion to dismiss or, in the
alternative, for summary judgment.
The respondent argues that (1)
the petitioner is not entitled to the GCT she seeks and (2) she has
failed to exhaust her administrative remedies.
filed a response in which she argues that she endured hostility at
FCP-Alderson and that the respondent’s inclusion of her grievance
record in the respondent’s motion is evidence of the prison’s
failure to compensate her for her “exceptional emergency services
performed.” The petitioner alleges that she specifically discussed
the additional 90 days of GCT with prison staff and argues that
exhausting her administrative remedies would be futile.
United States Magistrate Michael John Aloi then entered a
report and recommendation.
In that report and recommendation, the
petitioner’s § 2241 petition for failure to exhaust administrative
The magistrate judge notes that the Bureau of Prisons
provides a four-step administrative process for prisoner grievances
administrative remedies until she has filed her complaint at all
In her petition, the petitioner alleges that the
prison grievance process was impeded by prison staff, but the
magistrate judge found that “a review of the Respondent’s exhibits
establish that the Petitioner’s failure to exhaust the grievance
process was through her own fault.”
The petitioner filed a first-level grievance on December 21,
2015, which she was required to send directly to the Mid-Atlantic
Regional Office because it was marked “sensitive.”
petitioner filed the grievance only at the institutional level and,
thus, it was rejected.
The petitioner filed the same grievance
again at the institutional level, which was not marked sensitive,
and it was denied on April 21, 2016.
The petitioner appealed the
denial to the regional level, and was denied at that level on May
The petitioner did not appeal the regional level denial
to the Office of General Counsel and, thus, did not exhaust her
mentioned an arbitrary delay in her RRC date in any grievance.
respondent’s motion to dismiss or, in the alternative, motion for
summary judgment and dismissing without prejudice the petition for
habeas corpus under § 2241.
The magistrate judge also recommends
that the petitioner’s motion to subpoena a witness and motions to
expedite be denied as moot.
The petitioner filed objections.
The petitioner argues that
the time constraints of her sentence and the hindrance of her
administrative grievances by prison staff warrant waiver of the
exhaustion requirement, and that she asked for such waiver of the
exhaustion requirement in her petition.
The petitioner also
objects to the recommendation on the grounds that FCP-Alderson did
not operate in accordance with the administrative remedy process as
it is set forth in the federal regulations.
The petitioner then
objects on the grounds that, through no fault of her own, she did
not receive notice of the rejection of her grievance in time to
She additionally asserts that there was a delay,
through no fault of her own, of her grievance being filed by prison
staff at the institutional level.
For the reasons set forth below, the report and recommendation
petitioner’s objections are overruled.
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made. Because the petitioner filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which the petitioner objected.
As to those findings to which
objections were not filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
As the Supreme Court of the United States
stated in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395 (1948).
Because the petitioner filed objections
recommendation will be reviewed de novo.
Exhaustion prerequisites in habeas corpus actions arising
under § 2241 are judicially imposed, and, thus, a court has the
discretion to waive the requirement in certain circumstances.
Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Larue v.
Adams, No. 1:04-0396, 2006 WL 1674487, at *8 (S.D. W. Va. June 12,
favoring exhaustion even in cases in which the administrative
process is unlikely to grant an inmate relief.
Hawk, 159 F.3d 1321, 1327-28 (11th Cir. 1998).
See Alexander v.
policies are promoted by requiring the exhaustion of administrative
(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
Id. at 1327 (citing Kobleur v. Grp. Hospitalization & Med. Servs.,
Inc., 954 F.3d 705, 712 (11th Cir. 1992)).
The Bureau of Prisons provides a four-step administrative
process to address prisoner grievances. See 28 C.F.R. § 542.10, et
The first step is attempted informal resolution with prison
staff, the second step is filing a written complaint to the warden,
the third step is an appeal to the regional director of the Bureau
of Prisons, and the fourth step is an appeal to the Office of
An inmate is not deemed to have exhausted her
administrative remedies until she has filed her complaint at all
See 28 C.F.R. §§ 542.10-542.15.
As described in the background section above, the petitioner
never appealed the denial of her grievance at the regional level to
the Office of General Counsel.
Thus, the petitioner is not deemed
to have exhausted her administrative remedies.
This Court finds
that requiring exhaustion of administrative remedies in this case
underlying the exhaustion principle.
As the magistrate judge also
necessary factual background upon which the petitioner’s claim is
based, allow the Bureau of Prisons the opportunity to exercise its
discretion and apply its expertise in this area, conserve scarce
judicial resources, give the Bureau of Prisons a chance to discover
and correct its own possible error, and avoid deliberate flouting
of the administrative process.
For the reasons discussed above, the report and recommendation
of the magistrate judge (ECF No. 41) is AFFIRMED AND ADOPTED.
alternative, motion for summary judgment (ECF No. 28) is hereby
GRANTED, and the petition for habeas corpus under § 2241 (ECF No.
1) is DISMISSED WITHOUT PREJUDICE.
Additionally, the petitioner’s
motion to subpoena a witness (ECF No. 26), motions to expedite (ECF
Nos. 36 and 37) and motion for immediate ruling (ECF No. 46) are
DENIED AS MOOT.
It is further ORDERED that this civil action be
DISMISSED and STRICKEN from the active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, she is ADVISED that she
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
March 13, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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