Opinion
C22-1066-TL-SKV
11-09-2022
GREGORY DAVID WERBER, Petitioner, v. RESIDENTIAL REENTRY MANAGER, Respondent.
REPORT AND RECOMMENDATION
S. KATE VAUGHAN, United States Magistrate Judge.
I. INTRODUCTION
On December 16, 2019, Petitioner pleaded guilty to Conspiracy to Commit Money Laundering and two substantive counts of Money Laundering, both in violation of 18 U.S.C. § 1956. USA v. Hernandez, et al., CR18-5579-RAJ, Dkt. 969-70. In May 2021, Petitioner was sentenced to a 58-month prison term, followed by three years of supervised release. Id. at Dkt. 1342-43. Petitioner spent approximately a year in prison before the Bureau of Prisons (“BOP”) transferred him to prerelease custody in a residential reentry center in Seattle. Dkt. 1 at 4 ¶ 9(c). A month later, Petitioner was transferred to home confinement in Seattle. See id. at 4 ¶ 9(d); Dkt. 4.
Respondent indicates that by the BOP's calculations, Petitioner was scheduled to be released from home confinement on November 1, 2022. Dkt. 14 at 6. It therefore appears to the Court that Petitioner is no longer in custody. Even so, this action is not moot because Petitioner's sentence includes a term of supervised release, which could be reduced by a ruling in his favor. See United States v. Verdin, 243 F.3d 1174, 1178 (9th Cir. 2001); Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993).
On August 1, 2022, Petitioner filed the present 28 U.S.C. § 2241 writ of habeas corpus action, Dkt. 1, in which he contends that the BOP miscalculated the time credits he is entitled to under the First Step Act of 2018, 18 U.S.C. § 3632(d)(4) (“FSA”). Per Petitioner, if those credits were properly calculated and applied to his sentence, he would have been entitled to immediate release from custody to supervised release when he filed this action. Dkt. 1 at 5-6. Respondent Residential Reentry Manager denies that Petitioner's FSA time credits were improperly calculated and moves to dismiss this action on the ground that Petitioner has not exhausted his administrative remedies relative this computational dispute. Dkt. 14 at 2.
Currently pending before the Court are Respondent's Motion to Dismiss, Dkt. 14; and Petitioner's Motion for Expedited Evidentiary Hearing, Dkt. 3; Motion to Seal, Dkt. 5;Motion for Leave to File Surreply, Dkt. 21;Motion for Leave to File Over-Length Motions and Briefs re Surreply, Dkt. 22; and Motion to Correct Docket Sheet, Dkt. 23.
“There is a strong presumption of public access to the court's files.” LCR 5(g). Local Civil Rule 5(g) outlines the requirements for filing a document under seal in this District. A motion to seal a document must include certain information, including:
A specific statement of the applicable legal standard and the reasons for keeping a document under seal, including an explanation of:
i. the legitimate private or public interests that warrant the relief sought;
ii. the injury that will result if the relief sought is not granted; and iii. why a less restrictive alternative to the relief sought is not sufficientLCR 5(g)(3)(B). Here, Petitioner's Motion to Seal provides only that the document he seeks to seal “contains private information that should not be on the public docket.” Dkt. 5 at 1. See also Dkt. 4 at 1 (providing that Petitioner “redacted his home address in his Petition for Writ of Habeas Corpus . . . due to privacy and safety concerns ....”). This is insufficient to overcome the strong presumption in favor of public access to court files. Petitioner's Motion to Seal, Dkt. 5, is denied.
Local Civil Rule 7(g) permits a party to file a surreply to request that the Court strike material contained in an opposing party's reply brief. Any such surreply, however, “shall be strictly limited to addressing the request to strike.” LCR 7(g)(2). “Extraneous argument or a surreply filed for any other reason will not be considered.” Id.; Gauthier v. Twin City Fire Ins. Co., No. 14-cv-00693, 2015 WL 12030097, *1 (W.D. Wash. July 15, 2015). Here, the surreply Petitioner seeks to file does not address a request to strike and instead mainly repeats the arguments made in opposition to Respondent's Motion to Dismiss. The Court therefore declines to consider it. Petitioner's Motion for Leave to File Surreply, Dkt. 21, and Motion for Leave to File Over-Length Motions and Briefs re Surreply, Dkt. 22, are denied, and Petitioner's surreply, Dkt. 20, is stricken from the record. Further, Petitioner's Motion to Correct Docket Sheet, Dkt. 23, which asks the Court to correct the docket entry pertaining to Petitioner's surreply, is denied as moot.
The Court, having reviewed the Petition for Writ of Habeas Corpus, Respondent's Motion, and the balance of the record, concludes that this action should be dismissed without prejudice for failure to exhaust. Further, the Court denies Petitioner's Motion for Expedited Evidentiary Hearing, Dkt. 3, and Motion to Correct Docket Sheet, Dkt. 23, as moot; and denies Petitioner's Motion to Seal, Dkt. 5; Motion for Leave to File Surreply, Dkt. 21; and Motion for Leave to File Over-Length Motions and Briefs re Surreply, Dkt. 22. Finally, the Court strikes Petitioner's surreply, Dkt. 20, from the record.
II. BACKGROUND
A. FSA Time Credits
Congress enacted the FSA on December 21, 2018. Pub. L. No. 115-391, 132 Stat. 5194.
The FSA called for the implementation of a “risk and needs assessment” system to evaluate federal inmates' recidivism risk and included a directive to establish evidence-based recidivism reduction programs. 18 U.S.C. § 3632(a)-(b). The FSA also established various incentives for inmates to participate in its anti-recidivism programming. 18 U.S.C. § 3632(d). One such incentive was the awarding of “time credits” to “be applied toward time in prerelease custody or supervised release” upon eligible inmates' successful completion of anti-recidivism programming. 18 U.S.C. § 3632(d)(4)(C). Eligible inmates receive ten days of FSA time credits for every thirty days of anti-recidivism programming they successfully complete. 18 U.S.C. § 3632(d)(4)(A)(i). If the BOP determines that an inmate is at a “minimum” or “low” risk of recidivating and the inmate has not increased his risk of recidivism over two consecutive risk assessments, then he earns an additional five days of time credits for every thirty days of successfully completed programming. 18 U.S.C. § 3632(d)(4)(A)(ii).
Several classes of prisoners are precluded from earning time credits under the FSA, see 18 U.S.C. §§3632(d)(4)(D), but Petitioner does not belong to one of them, see Dkt. 14 at 2 n.1.
Under the FSA, the BOP “shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). An “eligible prisoner” is defined, in part, as a prisoner who has (1) earned FSA time credits “in an amount that is equal to the remainder of the prisoner's imposed term of imprisonment”; (2) “shown through the periodic risk reassessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of imprisonment”; and (3) had “the remainder of the prisoner's imposed term of imprisonment computed under applicable law . . . .” 18 U.S.C. § 3624(g)(1)(A)-(C). Additionally, in order to be eligible for transfer from prerelease custody to supervised release, a prisoner's last risk assessment must show him “to be a minimum or low risk to recidivate.” 18 U.S.C. § 3624(g)(1)(D)(ii). If a prisoner meets all of these requirements, the BOP must transfer him from prerelease custody to supervised release. See 18 U.S.C. §3632(d)(4)(C). In other words, if an inmate has accrued sufficient FSA time credits and he meets the FSA's risk assessment and other statutory requirements, the BOP is required to transfer the inmate from prerelease custody to supervised release.
The BOP was given 210 days following the FSA's enactment to develop the mandated “risk and needs assessment system.” 18 U.S.C. § 3632(a). The BOP then had until January 15, 2020, to conduct an “initial intake risk and needs assessment for each prisoner . . . and begin to assign prisoners to appropriate evidence-based recidivism reduction programs based on that determination.” 18 U.S.C. § 3621(h)(1). The FSA also created a phase-in period of up to two years following the BOP's completion of the initial risk and needs assessment, during which time the BOP was to “provide such evidence-based recidivism reduction programs and productive activities for all prisoners ....” 18 U.S.C. § 3621(h)(2)(A).
The BOP implemented its final rules regarding the earning and awarding of FSA time credits on January 19, 2022, 87 Fed.Reg. 2705-01, 2022 WL 159155, which are codified at 28 C.F.R. §§ 523.40-523.44. These rules provide that “an eligible inmate who successfully participates in Evidence-Based Recidivism Reduction [] Programs or Productive Activities [] that are recommended based on the inmate's risk and needs assessment may earn FSA Time Credits to be applied toward prerelease custody or early transfer to supervised release under 18 U.S.C. 3624(g).” 28 C.F.R. §§ 523.40(b).
B. BOP's Grievance Procedure
The BOP has established an Administrative Remedy Program through which prisoners can seek formal review of a complaint which relates to “any aspect of [their] own confinement[,]” 28 C.F.R. § 542.10(a), including the BOP's computation of their sentences, see United States v. Wilson, 503 U.S. 329, 335 (1992). Subject to limited exceptions not applicable here, see 28 C.F.R § 542.14(d), a prisoner “shall first present an issue of concern informally” to prison staff, 28 C.F.R. § 542.13(a). If dissatisfied with prison staff's informal response, the prisoner must then formally complain to the prison's warden. See 28 C.F.R. § 542.14(a)-(c). If dissatisfied with the warden's response, the prisoner may appeal to the Regional Director of the region in which he is confined. 28 C.F.R. § 542.15(a). And if the prisoner is dissatisfied with the Regional Director's response, he may appeal to the BOP's General Counsel. Id. “Appeal to the General Counsel is the final administrative appeal.” Id.
III. DISCUSSION
Respondent argues the Petition should be dismissed because Petitioner failed to utilize the BOP's administrative appeals procedures before filing this lawsuit and therefore has not exhausted his administrative remedies. See Dkt. 14. Petitioner concedes that he did not exhaust his administrative remedies, but asks the Court to waive the exhaustion requirement because Respondent has prevented him from “obtaining a timely and meaningful administrative remedy” and because “requiring administrative remedy procedures would be inadequate, not efficacious, futile, highly prejudicial, and cause irreparable injury to petitioner ....” Dkt. 15 at 6.
As a general matter, “[f]ederal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in federal court.” Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see also Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012); Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004). Although exhaustion is not a jurisdictional requirement with which a petitioner must comply before bringing a § 2241 habeas action, Ward, 678 F.3d at 1045, a court's discretion to waive the exhaustion requirement is “not unfettered[,]” Laing, 370 F.3d at 998. There are good reasons for requiring a petitioner to exhaust administrative remedies before pursuing an action in district court:
[T]he requirement of exhaustion of remedies [aids] judicial review by allowing the appropriate development of a factual record in an expert forum; conserve[s] the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow[s] the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings.Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Even so, the Court can waive the exhaustion requirement if pursuing administrative remedies would be futile. Ward, 678 F.3d 1045 (quoting Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993)).
Petitioner argues the exhaustion requirement should be waived in this case because the BOP does not apply FSA time credits until “the day the actual release day arrives,” meaning he has “no standing or administrative remedy available to him until he is overdue for release and illegally confined.” Dkt. 15 at 6 n.1. Petitioner further contends that exhaustion should be waived as futile because he is already overdue for release, and because requiring him to exhaust at this juncture would result in irreparable injury. Id. at 6 n.2
The Court is not persuaded that waiving the exhaustion requirement is appropriate here. Petitioner cites no statute or BOP policy or regulation to support his assertion that the BOP does not apply FSA time credits until a prisoner's release date arrives. Instead, he cites Jefferson v. Thompson, No. 21-cv-01783-TLN-CKD, 2022 WL 1215441, at *3 (E.D. Cal. Apr. 25, 2022), report and recommendation adopted, No. 21-cv-01783-TLN-CKD, 2022 WL 2758625 (E.D. Cal. July 14, 2022) (finding that the case was not yet ripe for review because “the BOP has not yet calculated petitioner's [earned time credits] because his release date is too far in the future and the agency has chosen to calculate FSA sentencing credits on a rolling basis with those with an anticipated release date within 45 days given first priority”); and Turner v. Heisner, No. 22-cv-00178-PHX-JAT (ESW), 2022 WL 2195348, at *3 (D. Ariz. May 16, 2022), report and recommendation adopted sub nom., Turner v. Cole, No. 22-cv-00178-PHX-JAT, 2022 WL 2192212 (D. Ariz. June 17, 2022) (finding that the case was not yet ripe for review because under the FSA, earned time credits can be applied toward prerelease custody or supervised release only when accumulated credits are equal to the remainder of the sentence, and the number of credits the petitioner alleged he had were not equal to the remainder of his sentence). Dkt. 15 at 6 n.1. Neither case supports Petitioner's proposition.
Moreover, whether Petitioner has standing to bring a legal action in court challenging his FSA time credit calculation and whether the BOP's administrative appeals process is available to him to bring such a challenge are not one and the same. The record indicates that in February 2022, Petitioner was told he had 76 days of FSA time credits. Dkt. 15-1 at 56. Two months later, in April 2022, Petitioner asked for a “print out” of his FSA time credits, and the BOP again informed him that he “had 76 days of [time credits] applied.” Id. at 58. But per Petitioner, he automatically accumulated fifteen FSA time credits for every month he was incarcerated. Dkt. 1 at 5 ¶ 9(f); Dkt. 15 at 10 & n.4. Thus, per his approach to time credit calculation, he should have had approximately thirty more time credits in April 2022 than he did in February 2022. Given this, at least as early as April 2022, Petitioner had notice that the manner in which he was calculating his FSA time credits did not comport with the manner in which the BOP was calculating them, and he could have submitted an administrative grievance at that time. Petitioner did not, instead waiting until a month after his purported release date to file this court action.
But even as early as February 2022, Petitioner should have been on notice that he and the BOP were not calculating his FSA time credits in the same manner. Per Petitioner's calculations, as of January 20, 2022, he should have had 103.5 days of FSA time credits, not the seventy-six days he was told he had in February 2022. See Dkt. 15 at 12.
Petitioner cites Butler v. Bradley, No. 20-cv-11211-DMG-RAO, 2021 WL 945252, at *2-3 (C.D. Cal. Feb. 22, 2021), report and recommendation adopted, No. 20-cv-11211-DMG-RAO, 2021 WL 5596151 (C.D. Cal. Nov. 30, 2021); and Goodman v. Ortiz, No. 20-cv-7582-RMB, 2020 WL 5015613, at *2-3 (D.N.J. Aug. 25, 2020), in support of his argument that requiring exhaustion would be futile and result in irreparable injury. Dkt. 15 at 6 n.2
In Butler, the court found that “Petitioner's allegation that his case manager and other prison officials refused to provide him with grievance forms supports a finding that the exhaustion requirement should be waived ....” Butler, 2021 WL 945252, at *3. The court further noted that “if Petitioner's claim were meritorious, he would suffer irreparable injury from his continued incarceration.” Id. In Goodman, the court found that exhaustion was not required because the case presented “a narrow dispute of statutory construction which is exempt from the exhaustion requirement.” Goodman, 2020 WL 5015613, at *3. Further, because the court found that habeas relief should be granted, it waived exhaustion. Id.
Here, unlike in Butler, Petitioner does not allege that anyone interfered with his efforts to exhaust his claim, nor does he provide any explanation for his failure to exhaust. And unlike in Goodman, this case does not present a narrow issue of statutory construction that is excused from the exhaustion requirement. While it may be true that Petitioner would suffer irreparable injury if his claim were meritorious, unlike in Goodman, Petitioner has failed to demonstrate that it is. Indeed, even if the Court were to waive the exhaustion requirement, Petitioner has not met his burden of proving that he is entitled to relief.
Petitioner argues the BOP's failure to provide documentation substantiating its claims does not comply with the Court's Order for Service and Return, Dkt. 8, which ordered the BOP to “show cause why a writ of habeas corpus should not be granted,” Dkt. 15 at 8 (quoting Dkt. 8 at 1). But “it is the petitioner who bears the burden of proving his case” in federal habeas proceedings. Lambert v. Blodgett, 393 F.3d 943, 969 n.16 (9th Cir. 2004); Caver v. Straub, 349 F.3d 340, 351 (6th Cir. 2003) (“[I]n a habeas proceeding the petitioner ‘has the burden of establishing his right to federal habeas relief and of proving all facts necessary to show a constitutional violation.'”) (quoting Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001)).
Petitioner alleges that his “sworn petition, response, and evidence shows he earned 15 days a month, totaling 188.5 days of Earned Time Credit . . . under the [FSA] from June 28, 2021[,] through July 9, 2022, and is therefore illegally confined and overdue for release, and was entitled to be released from his Term of Imprisonment and begin his Term of Supervised Release on July 9, 2022.” Dkt. 15 at 6. He argues that he “automatically earns 15 days of [earned time credit] a month unless he formally opts out or refuses to participate in a program offered to him by the BOP or incurs a disciplinary infraction and is placed in disciplinary housing-none of which has ever happened here ....” Id. at 7. And he contends he successfully participatedin all anti-recidivism programming offered to him “and more,” and that he has always been classified as “low” risk of recidivism, meaning he has earned time credits at the rate of fifteen days per month since June 28, 2021. Id. at 9-10.
The parties dispute whether “successful participation” or “successful completion” of antirecidivism programming is the appropriate standard for determining whether an inmate has earned time credits under the FSA. Dkt. 15 at 9; Dkt. 17 at 5-8. They also dispute whether, if successful participation is the standard, Petitioner must demonstrate how many days he actually participated in qualifying programming in order to earn time credits. Dkt. 15 at 7; Dkt. 17 at 6-7. Because it does not change the Court's assessment, the Court declines to reach this issue.
This is insufficient to demonstrate that Petitioner is entitled to relief. Petitioner seemingly alleges he is entitled to time credits for participating in his general prison work assignments, i.e., his work as a chapel orderly. Dkt. 15 at 9; Dkt. 15-1 at 25-26, 28-30, 32-34. But there is no indication in the record that these work assignments qualify as “evidence-based recidivism reduction programming” or “productive activities” such that they entitle Petitioner to accrue time credits under the FSA. See 28 C.F.R. § 523.41(a)-(b) (defining “evidence-based recidivism reduction program” and “productive activity”). In fact, the record lists these work assignments separately from Petitioner's “Current FSA Assignments,” Dkt. 15-1 at 29, 33, arguably indicating they do not qualify as anti-recidivism programming for the purposes of the FSA.
Similarly, Petitioner provides a certificate indicating he successfully completed a drug education program in May 2022, Dkt. 15-1 at 38, and alleges the BOP has not accounted for this program in its allocation of his FSA time credits, see Dkt. 15 at 7, 9. But the record does not show whether the BOP considered this drug education program to be an “evidence-based recidivism reduction program” or “productive activity” within the meaning of the FSA.
But even assuming Petitioner's work assignments do qualify for FSA time credits, it is unclear from the record whether Petitioner “successfully participated” in them. Whether an inmate has “successfully participated” in anti-recidivism programming “requires a determination by [BOP] staff that an eligible inmate . . . has complied with the requirements of each particular [evidence-based recidivism reduction program] or [productive activity].” 28 C.F.R. § 523.41(c)(2). While Petitioner alleges he has successfully participated in every evidence-based recidivism reduction program and productive activity offered to him “and more,” and that the BOP has failed to adequately account for the programming and activities in calculating his time credits, Dkt. 15 at 9-12, he provides no evidence indicating the BOP has determined he successfully participated in such programming and activities. The Court therefore cannot assess Petitioner's successful participation.
Moreover, it is unclear from the record the rate at which Petitioner is entitled to accrue FSA time credits. Petitioner alleges he is entitled to accrue credits at a rate of “15 days a month.” See, e.g., Dkt. 15 at 10-11. But an inmate accrues credits at this rate only if he is classified “at a minimum or low risk for recidivating” and “over 2 consecutive [risk] assessments, has not increased [his] risk of recidivism.” 18 U.S.C. § 3632(d)(4)(A)(ii); see also 28 C.F.R. § 523.42(c)(2). Petitioner alleges he has “always” been classified a ‘“low' risk of recidivism, and his ‘low' risk score has never increased.” Dkt. 15 at 10. While it may be true that the record generally indicates Petitioner has been assessed a low risk of recidivism, Dkt. 151 at 26, 30, 34, it is unclear whether Petitioner has been classified as such over two consecutive risk assessments. Petitioner only submits his initial classification from July 2021, one FSA risk assessment from December 2021, and documents completed over a period of several months after this December 2021 risk assessment indicating Petitioner is low risk. Id. at 25-26, 28-30, 32-34, 36. But because Petitioner has not indicated how often the BOP conducts risk assessments and when the most recent risk assessments were conducted, the Court cannot discern Petitioner's risk classification “over the most recent two consecutive risk and needs assessments” from this record. 8 C.F.R. § 523.42(c)(2)(ii). Thus, the Court cannot adequately assess the rate at which Petitioner is eligible to accrue FSA time credits.
Finally, Petitioner “requests an evidentiary hearing if [the] requested relief cannot be granted on the current record.” Dkt. 15 at 1. But because “the record makes clear that [Petitioner] failed to exhaust his administrative remedies, no evidentiary hearing on this issue . . . is necessary.” Martinez, 804 F.2d at 571. Again, “the requirement of exhaustion of remedies [aids] judicial review by allowing the appropriate development of a factual record in an expert forum; conserve[s] the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow[s] the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings.” Ruviwat, 701 F.2d at 845. “This is exactly the type of case in which exhaustion of administrative remedies should be required. There has not been the development of a factual record which would enable this court to review the [BOP's] decision.” Chua Han Mow v. United States, 730 F.2d 1308, 1313-14 (9th Cir. 1984) (affirming dismissal of habeas action on failure to exhaust grounds and denying petitioner's request for an evidentiary hearing). And because the record “refutes the petitioner's factual allegations or otherwise precludes habeas relief, the district court is not required to conduct an evidentiary hearing.” Vela v. McGrath, No. 08-cv-082-JPH, 2009 WL 277535, at *4 (E.D. Wash. Feb. 4, 2009) (citing Estrada v. Scribner, 512 F.3d 1227, 1239 (9th Cir. 2008)). Petitioner should not be entitled to circumvent his failure to exhaust his administrative remedies by resorting to an evidentiary hearing in this Court.
The Court therefore recommends that Petitioner's Petition for Writ of Habeas Corpus, Dkt. 1, be dismissed without prejudice to Petitioner exhausting his administrative remedies relative to this dispute.
Petitioner includes a copy of Stewart v. Snider, No. 22-cv-00294-MHH-JHE, 2022 WL 2032305 (N.D. Ala. May 10, 2022), report and recommendation adopted, No. 22-cv-294-MHH-JHE, 2022 WL 2019965 (N.D. Ala. June 6, 2022), in the record he submits to the Court. Dkt. 15-1 at 62-68. That case also involved a dispute over whether the BOP had properly calculated the petitioner's FSA time credits, and resulted in the court excusing the petitioner's failure to exhaust his administrative remedies and granting the petitioner habeas relief. Id. at *2, 7. However, in that case, the petitioner had “attempted to comply with the BOP's administrative remedy process, but he was released to home confinement before being able to submit the proper forms” and “did not get a timely response from the BOP” when pursuing his claim. Id. at *2. Further, the respondent did not dispute that the petitioner had earned additional time credits between the BOP's last calculation and the relevant time period “which could result in an earlier release date.” Id. at *7. By contrast, here, Petitioner made no effort to exhaust his administrative remedies and Respondent does dispute Petitioner's alleged entitlement to an earlier release date based on time credits accrued under the FSA. Thus, Stewart does not support granting Petitioner relief in this case.
IV. CONCLUSION
Based on the forgoing, the Court recommends that Petitioner's § 2241 Petition for Writ of Habeas Corpus, Dkt. 1, be dismissed without prejudice. Further, the Court denies Petitioner's Motion for Expedited Evidentiary Hearing, Dkt. 3, and Motion to Correct Docket Sheet, Dkt. 23, as moot; and denies Petitioner's Motion to Seal, Dkt. 5; Motion for Leave to File Surreply, Dkt. 21; and Motion for Leave to File Over-Length Motions and Briefs re Surreply, Dkt. 22. Finally, the Court strikes Petitioner's surreply, Dkt. 20, from the record.
A proposed Order accompanies this Report and Recommendation.
V. OBJECTIONS
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within twenty-one (21) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on December 2, 2022.