The opinion of the court was delivered by: Chief Judge Kane
Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by Rasheen Johnson, at the time an inmate confined at the United States Penitentiary at Lewisburg, Pennsylvania.*fn1 In the petition, Johnson challenges the validity of disciplinary proceedings that resulted in his loss of forty (40) days of good conduct time. The petition is ripe for consideration and, for the reasons that follow, will be denied.
Johnson challenges events that occurred at the Federal Correctional Institution at Greenville, Illinois (FCI-Greenville), his former place of confinement. While he was confined there, the staff received confidential information that Johnson possessed narcotics. His cell was subsequently searched on March 1, 2005, but no drugs were found. Johnson was thereafter placed in a dry cell pursuant to 28 C.F.R. § 552.12.*fn2 Once there, he was ordered by staff to provide a urine sample within two (2) hours for drug analysis. When he failed to do so, he was issued an incident report for violating Code 110, refusing to provide a urine sample. (Doc. No. 9-3, Ex. B at 2-3.) A Unit Discipline Committee ("UDC") hearing was conducted on March 7, 2005. At the hearing Johnson stated that he was in the dry cell when he was told he had to provide a urine sample, but that he did not have to "pee" at that time. He states he did urinate within 2-3 hours of being instructed to do so. The UDC referred the charge to the Discipline Hearing Officer ("DHO") for further hearing. (Id.)
A DHO hearing was held on March 10, 2005, before Robert M. Whitehouse. At the hearing, Johnson claimed that he was not told he only had two (2) hours to provide a sample, and that he did subsequently provide a sample. After considering the evidence, the DHO concluded that Johnson had committed the prohibited act. He was sanctioned to thirty (30) days of disciplinary segregation, the disallowance of forty (40) days of good conduct time, and the loss of visiting privileges for a year. (Id. at 5-7.) Johnson filed a Regional Administrative Remedy Appeal from the DHO's finding on April 22, 2005. (Doc. No. 9-4 at 2-3.) He claimed that he never refused to provide a urine sample or was told how long he had to provide one. On May 23, 2005, his appeal was denied. (Id. at 4.) Johnson filed an appeal with the Central Office on June 22, 2005. (Id. at 5.) Again he maintained that he never refused to provide a urine sample, and sought the expungement of the incident report. On August 16, 2005, his appeal was denied. (Id. at 6.)
Johnson thereafter filed the pending habeas petition wherein he claims his right to due process was violated when: (1) FCI-Greenville staff failed to adhere to 28 C.F.R. § 541.19 through § 541.23 as set forth in Program Statement 5270.07; (2) staff failed to adhere to 28 C.F.R. §§ 550.30 and 550.31 as set forth in Program Statement 6060.80; (3) Lieutenant Bowling failed to read him his rights or conduct a thorough investigation of the incident; (4) Lt. Bowling participated in the disciplinary process even though he was involved with Johnson's placement in the dry cell; (5) Officer Braning only asked Johnson if he had to urinate, but did not specifically request a urine sample; (6) Johnson was not notified that a prisoner must provide a urine sample upon being placed in a dry cell; (7) the UDC hearing was not held within 72 hours; (8) Johnson was not provided with a copy of the findings and disposition of the UDC hearing within 24 hours; (9) video of Johnson in the dry cell was not reviewed to show he did provide a urine sample; (10) the DHO did not sufficiently consider the testimony of a staff witness; (11) Johnson did not receive at least 24 hours advance written notice of the charges before his DHO hearing; (12) Johnson was denied enough time to prepare and speak with his staff representative before the hearing; and (13) his staff representative did not present any of the favorable evidence. (Doc. No. 1, Pet. at 4-6.)
Although Section 2241 does not contain a statutory exhaustion requirement, the United States Court of Appeals for the Third Circuit has consistently required an inmate to exhaust his administrative remedies prior to petitioning for a writ of habeas corpus. Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996)(citing Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981)(per curiam)); e.g., Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000). Exhaustion is required for the following reasons: "(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy." Moscato, 98 F.3d at 761-62 (3d Cir. 1996) (citations omitted).
The exhaustion procedure established by the Bureau of Prisons to be utilized by federal inmates is set forth at 28 C.F.R. §§ 542.10-542.19. Except for claims for which other administrative procedures have been established, federal inmates may seek "formal review of an issue which relates to any aspect of his/her own confinement." 28 C.F.R. § 542.10(a). In the case of appeals from findings of a disciplinary hearing officer, an appeal of the DHO's decision shall be submitted initially to the Regional Director for the region where the inmate is currently located. 28 C.F.R. § 542.14(d)(2). The Regional Director shall respond within thirty days. 28 C.F.R. § 542.18. However, an extension of an additional thirty days for a response from the Regional Director may be made in appropriate circumstances. Id. An inmate who is not satisfied with the Regional Director's response may appeal to the General Counsel within thirty days of the date of the Regional Director's response. 28 C.F.R. § 542.15(a). The General Counsel shall respond within forty days. 28 C.F.R. § 542.18. However, an extension of an additional forty days for a response from the General Counsel may be made in appropriate circumstances. Id. "Appeal to the General Counsel is the final administrative appeal." 28 C.F.R. § 542.15(a).
Respondent maintains that Johnson has failed to exhaust his available administrative remedies with respect to all but one of the claims set forth in the instant habeas petition. Specifically, Respondent argues that of the thirteen (13) grounds set forth in the petition, Johnson only exhausted his claim that Officer Braning never requested a urine sample from him. In support of this argument they attach a copy of both the Regional Administrative and the Central Office Administrative Remedy Appeals filed by Johnson with respect to his challenge to the DHO proceedings, and the responses thereto. (Doc. No. 9-4.) In reviewing these submissions, it is clear that in his Regional Administrative Remedy, the only claim raised by Johnson in contesting the DHO proceedings is that he was never requested to provide a urine sample. In his Central Office appeal, he appears to argue that he never refused to give urine or knew there was a time limit to do so. As such, the only claims that can arguably be viewed as exhausted are Johnson's contentions that Officer Braning never specifically requested a urine sample and that he was not notified that he must provide a sample upon being confined in the dry cell.
Johnson's only reply to Respondent's failure to exhaust argument is that the exhaustion requirement should not be strictly enforced because he is an inmate as opposed to a "professional lawyer." He argues that he is only afforded a short time to obtain and prepare proper legal materials while in segregation, and that his failure to include all grounds in his administrative remedy filings should be excused. The Court finds this argument unpersuasive for the following reasons. This is not a situation where a petitioner was unable to access administrative remedy forms for submission. He had the required forms at his disposal and could have easily included all challenges to the DHO proceedings in the grievance and appeals therefrom. Instead, he only listed one claim. Further, if for some reason Johnson did not feel he had sufficient time within which to list all of his challenges on the administrative remedy forms, he could have sought an extension of time within which to do so. He did not. Accordingly, the Court finds that all claims, with the exception of Johnson's claims that he was not requested to provide a urine sample by Braning and/or upon being confined in the dry cell, are subject to dismissal for failure to exhaust available administrative remedies. However, even if all the claims set forth in the petition were exhausted, they are without merit for the following reasons.
"Habeas corpus relief is available to a prisoner who has been sanctioned in violation of due process to a loss of good conduct time." Robinson v. Warden, 250 Fed. App'x 462, 464 (3d Cir. 2007). In Wolff v. McDonnell, 418 U.S. 539, 556 (1974), the Court observed that, while inmates are entitled to a fair process before good conduct time may be removed, prison disciplinary hearings "are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." When a prison disciplinary hearing may result in the loss of good conduct time credits, due process requires that the prisoner receive: (1) written notice of the claimed violation at least twenty-four (24) hours in advance of the hearing; (2) an opportunity to present ...