Thomas v. Drew

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7669
RODAGUS MARILENTO THOMAS,
Petitioner – Appellant,
v.
DARLENE DREW, Warden FCI Bennettsville,
Respondent – Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. David C. Norton, Chief District
Judge. (9:08-cv-03111-DCN)
Submitted: February 4, 2010 Decided: February 17, 2010
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rodagus Marilento Thomas, Appellant Pro Se. Barbara Murcier
Bowens, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodagus Marilento Thomas appeals the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his 28 U.S.C. § 2241 (2006) habeas petition,
construed in part as a complaint filed pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388(1971). We have reviewed the record and find no reversible
error. For the reasons that follow, we affirm.
Thomas, a federal prisoner, was charged with ten
counts of misuse of the telephone while incarcerated at FCI
Edgefield. Following a review of the evidence, the Discipline
Hearing Officer (“DHO”) found Thomas guilty on all ten counts,
and imposed a number of sanctions, specifically: (1) a loss of
phone privileges until June 23, 2065; (2) a loss of twenty-seven
days of good time credit; (3) a loss of commissary privileges
until December 18, 2038; and (4) a loss of visitation privileges
until April 16, 2046. After exhausting his administrative
remedies, Thomas challenged his punishment in the district
court, arguing in relevant part that his due process rights had
been violated by his prison disciplinary hearing and that the
sanctions imposed were excessive and violated his Eighth
Amendment right to be free from cruel and unusual punishment.
In response, Drew filed a motion for summary judgment.
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The magistrate judge recommended that the motion for
summary judgment be granted in part, and that Thomas’s
convictions and the sanctions imposed regarding his loss of good
time credit and telephone and commissary privileges be upheld.
However, the magistrate judge found that Thomas was entitled to
relief on the portion of his Bivens claim relating to his loss
of visitation privileges, finding that the loss constituted a
permanent ban on his visitation privileges and thus violated
Thomas’s Eighth Amendment rights. The district court affirmed
the magistrate judge’s report and recommendation; granted the
motion for summary judgment in part regarding Thomas’s
conviction and his loss of good time credits, commissary
privileges, and phone privileges; found that Thomas had suffered
a violation of his Eighth Amendment rights regarding his loss of
visitation privileges; and ordered the Bureau of Prisons (“BOP”)
to re-sentence Thomas only on his visitation privileges.
Shortly thereafter, Drew filed a status report with the court,
indicating that Thomas had been re-sentenced and his visitation
privileges were suspended for 99 months, with those privileges
to be restored on January 15, 2015. Thomas filed a timely
notice of appeal.
On appeal, Thomas first asserts that the “de facto”
permanent ban on his telephone privileges is a violation of his
Eighth Amendment rights. Second, Thomas challenges the BOP’s
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revised sanction of 99 months of loss of visitation privileges,
asserting that it still amounts to a permanent ban, and
therefore despite the court’s order, Thomas received no relief.
Third, Thomas claims that his sanctions were retaliatory,
because the other two inmates involved have already had their
privileges reinstated, despite having a record of prior
institutional infractions while Thomas has no such record.
Finally, Thomas asserts that the sanctions imposed regarding his
visitation privileges violate the Eighth Amendment rights of his
two sons, who are no longer able to visit Thomas while he is in
prison.
As to his third and fourth claims, neither was raised
in Thomas’s administrative appeals, or in his complaint filed in
the district court. This court generally does not address
claims raised for the first time on appeal. See Muth v. United
States, 1 F.3d 246, 250 (4th Cir. 1993). Furthermore,
“[e]xceptions to this general rule are made only in very limited
circumstances, such as where refusal to consider the newly-
raised issue would be plain error or would result in a
fundamental miscarriage of justice.” Id. Here, Thomas concedes
in a reply to Drew’s informal brief that his claims are not
properly before this Court, and instead asserts again that the
ban violates his own Eighth Amendment rights, as previously
argued. Because Thomas has not argued that exceptional
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circumstances exist to justify departure from the general rule,
and we perceive no such circumstances, we decline to address
these two claims.
Thomas’s claim that his revised sentence of 99 months
without visitation privileges still violates his Eighth
Amendment rights also is not properly before this court on
appeal. We have jurisdiction only over “all final decisions of
the district courts of the United States,” 28 U.S.C. § 1291(2006), and certain interlocutory orders from the district
courts. See 28 U.S.C. § 1292 (2006). However, we do not have
jurisdiction to hear appeals directly from a BOP disciplinary
hearing or re-sentencing. Therefore, Thomas is entitled to no
relief on this claim.
Finally, Thomas challenges the “de facto” ban on his
telephone privileges as a violation of his Eighth Amendment
rights. * “To demonstrate that conditions of confinement
constitute cruel and unusual punishment, [an inmate] must (1)
establish that prison officials acted with ‘deliberate
indifference’ and (2) prove extreme deprivations of basic human
needs or ‘serious or significant’ pain or injury.” Smith v.
*
Because Thomas failed to challenge the district court’s
decision to uphold his loss of good time credits and his
commissary privileges, he has waived review of these claims
pursuant to 4th Cir. R. 34(b).
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Ozmint, 578 F.3d 246, 255 (4th Cir. 2009) (quoting Williams v.
Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). Thomas has done
neither; he has not alleged that he is experiencing an extreme
deprivation or that he has suffered a significant injury.
Therefore, Thomas has failed to demonstrate that his Eighth
Amendment rights have been violated.
Accordingly, although we grant leave to proceed in
forma pauperis, we deny as moot Thomas’s motion to expedite and
affirm the order of the district court. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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