The opinion of the court was delivered by: JAMES McCLURE JR., Senior District Judge
Terrence Edward Hammock ("Petitioner"), an inmate presently
confined at the Schuylkill Federal Correctional Institution,
Minersville, Pennsylvania (FCI-Schuylkill), filed this pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Service of the petition was previously ordered.
Named as Respondents are the following FCI-Schuylkill
officials: Warden John Nash; Disciplinary Hearing Officer ("DHO")
Kevin Bittenbender; Investigating Officer J. Tomlinson and Warden
Ronnie Holt. Petitioner states that on March 31, 2004, he was
charged with being one of three inmates who assaulted fellow
prisoner Kenyatta Brown. Following completion of an internal investigation, two
other inmates identified as being assailants were exonerated, and
Petitioner was issued a misconduct charging him with the assault
on May 4, 2004. He was found guilty of the misconduct following a
May 17, 2004 hearing before DHO Bittenbender. Hammock was
sanctioned to a forfeiture of good time credits, as well as a
loss of commissary, telephone and visitation privileges. He was
also recommended for a transfer.
Hammock claims entitlement to federal habeas corpus relief on
the grounds that DHO Bittenbender violated due process by: (1)
denying Petitioner's request for the victim, Inmate Brown, to
appear as a witness; (2) making a decision based on Officer
Tomlinson's hearsay testimony regarding information provided from
confidential informants; (3) imposing an excessive number of
sanctions in violation of BOP policy. Documents accompanying the
petition additionally assert that DHO Bittenbender was biased and
that Petitioner requested but was denied assistance from a staff
representative. Hammock seeks restoration of his good time
credits, injunctive relief, compensatory and punitive damages.
Respondents argue that there is no basis for habeas corpus
relief because: (1) Hammock failed to exhaust his administrative
remedies; (2) the DHO complied with the BOP's guidelines
regarding inmate discipline; (3) there was sufficient evidence to
support the finding of guilt; (4) there was no actual prejudice
from the alleged due process violations; and (5) Petitioner's
request for monetary damages and injunctive relief are not
properly raised in a habeas corpus petition. Discussion
"A federal prisoner ordinarily may not seek habeas corpus
relief until he has exhausted his available administrative
remedies." Bradshaw v. Carlson, 682 F. 2d 1050, 1052 (3d Cir.
1981). The doctrine of exhaustion of administrative remedies is
well established and a person is not entitled to judicial relief
until the prescribed remedy has been exhausted. McKart v.
United States, 395 U.S. 185, 192 (1969); Arias v. U.S. Parole Comm.,
648 F.2d 196, 199 (3d Cir. 1981) (holding that administrative
remedies must be exhausted before seeking relief in federal
court); U.S. ex rel. D'Agostino v. Keohane, 877 F.2d 1167,
1173-74 (3d Cir. 1989).
The BOP has established a multi-tier Administrative Remedy
Program whereby a federal prisoner may seek review of any aspect
of his imprisonment.*fn1 See 28 C.F.R. §§ 542.10-542.19 (1998). "This program applies to all inmates
confined in institutions operated by the Bureau of Prisons, to
inmates designated to Community Corrections Centers (CCCs) under
Bureau of Prisons' responsibility, and to former inmates for
issues that arose during their confinement but does not apply to
inmates confined in other non-federal facilities." Id. at §
The program provides that, with certain exceptions, ". . . an
inmate shall first present an issue of concern informally to
staff, and staff shall attempt to informally resolve the issue
before an inmate submits a Request For Administrative
Remedy."*fn2 Id. at § 542.13(a). Next, if informal
resolution fails, the inmate must submit "a formal written
Administrative Remedy Request, on the appropriate form (BP-9),"
within 20 "calendar days following the date on which the basis
for the Request occurred." Id. at § 542.14(a). If a valid
reason for delay is given, an extension of the filing time may be
granted. Id. at 542.14(b). The Warden has 20 calendar days from
the date the Request or Appeal is filed in which to respond.
Id. at § 542.18. If not satisfied with the Warden's response, an inmate may
appeal on the appropriate form (BP-10) to the Regional Director
within 20 calendar days of the date the Warden signed the
response. Id. at § 542.15. Finally, if the inmate is
dissatisfied with the Regional Director's response, that decision
may then be appealed on the appropriate form (BP-11) to the
General Counsel within 30 calendar days from the date the
Regional Director signed the response. Id. "When the inmate
demonstrates a valid reason for delay, these time limits may be
extended." Id. The Regional Director has 30 calendar days to
respond and the General Counsel has 40 calendar days in which to
respond. Id. at § 542.18.
The response time provided for at each level may be extended in
writing "once by 20 days at the institution level, 30 days at the
regional level, or 20 days at the Central Office level." Id.
Additionally, "[i]f the inmate does not receive a response within
the time allotted for reply, including extension, the inmate may
consider the absence of a response to be a denial at that level."
Respondents acknowledge that Hammock initiated six (6)
administrative grievances regarding his present claims. His first
two grievances were rejected for procedural errors. Petitioner's
third grievance "was denied and closed" on June 23, 2004. Record
document no. 9, p. 4. The fourth grievance was rejected on July
19, 2004, "because the request had already been responded to by
the Region." Id. Next, Hammock filed an appeal of the Regional
Office's decision which was rejected for a procedural error. His
final administrative grievance was rejected on July 7, 2004 because it was filed at the wrong level.
Petitioner argues that before he initiated this habeas corpus
action, he sought relief from the Warden, Regional Director, and
General Counsel. Hammock states that he filed his appeal to the
General Counsel around July 17, 2004 and the General Counsel
never responded within the allotted 30 day period. See Record
document no. 4, p. 12. His petition adds that the General Counsel
failed to respond to his subsequent letters which inquired as to
why a response was never given. Hammock also notes that the
Respondents' contention that he filed a DHO appeal on May 12,
2004 is clearly erroneous because his disciplinary hearing was
not conducted until May 17, 2004.
Based on this Court's review of the record, it is clear that
Petitioner's present claims were presented to both the Warden and
Regional Director. It is also uncontested that an appeal to the
General Counsel was filed. However, there are factual
discrepancies regarding whether Petitioner properly completed
that final administrative review. Since there are presently
material facts in dispute regarding the outcome of ...