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October 11, 2005.

WARDEN JOHN NASH, ET AL., Respondents.

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. Exhaustion

  "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 § 542.10.

  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." Id.

  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 ...

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