IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
March 6, 2012
ISSAC LITTLE, PETITIONER,
B.A. BLEDSOE, RESPONDENT.
The opinion of the court was delivered by: (Magistrate Judge Carlson)
REPORT AND RECOMMENDATION
This habeas corpus petition invites the Court to address a legal question regarding the application of the Second Chance Act, a 2008 federal statute designed to provide prison officials with greater discretion in assisting inmates in making the transition back into society by permitting prison officials to place inmates in Residential Re-entry Centers up to 12 months before they are released from custody. Specifically, this petition invites us to determine whether, and to what extent, the Second Chance Act gives a federal inmate with a history of disruptive violence at a maximum security prison a substantive right to early release to a halfway house or other non-custodial setting as he nears the conclusion of his prison term.
Although Little invites us to reach and resolve all of these constitutional issues, he extends this invitation to us without first having invited the Bureau of Prisons to address his concerns by filing a proper, timely, fully-exhausted administrative request for relief from this proposed RRC placement decision that Little now challenges.
It is recommended that the Court decline this invitation to address these legal issues since it is well-settled that a federal inmate who wishes to bring a habeas corpus petition based upon an alleged failure by prison staff to comply with the Second Chance Act must first fully exhaust administrative remedies within the prison system. For the reasons set forth below, we conclude that exhaustion of these administrative remedies is a prerequisite to federal habeas corpus relief in this setting, and further find that Little has failed to exhaust his administrative remedies, a failure which compels dismissal of this case.
II. Statement of Facts and of the Case
Issac Little is a federal inmate, who is housed in the Special Management Unit of the United States Penitentiary Lewisburg. Since his arrival at the Lewisburg Penitentiary in May 2010, Little has been cited for 16 different disciplinary infractions. (Doc. 7-1) These disciplinary violations have entailed instances of serious misconduct, including assaultive conduct and thee commission of sexual acts. (Doc. 7-1, p.21)
While Little was serving this federal sentence, in April of 2008, the Second Chance Act of 2007, Pub. L. No. 110-199, went into effect. This act contains several provisions which are designed to aid prisoners in their transition back into society. For example, the Act provides that, in its discretion, the Bureau of Prisons may place certain inmates in Residential Re-entry Centers (RRC) for as much as one year at the end of their prison terms to aid them in their readjustment into society. See 18 U.S.C. Â§ 3624(c)(1).*fn1
In Little's case, the repeated episodes of serious institutional misconduct that marked his prison record have led prison officials to be reluctant to release Little into a less structured environment like a halfway house. Accordingly, in exercising their discretion under the Second Chance Act, 18 U.S.C. Â§3624 (c), correctional staff have not to date granted Little an early halfway house placement. (Doc. 7-1)
With respect to inmate concerns regarding RRC placements and other matters, the Bureau of Prisons has adopted a three-tiered administrative remedy procedure with respect to inmate complaints which is set forth at 28 C.F.R. Â§ 542.10, et seq. As part of this grievance process, inmates should first present their complaints to staff, and staff are obliged to attempt to informally resolve any issues before an inmate files a formal request for Administrative Remedy. Id. at Â§ 542.13(a). At the second stage of this process, if an inmate is unable to informally resolve his complaint, the inmate may file a formal written complaint to the warden, on the appropriate form within 20 calendar days of the date on which the events which form the basis for the complaint took place. Id. at Â§ 542.14(a). If the inmate's concern is not addressed to the inmate's satisfaction by the warden's response, the inmate may then file an appeal to the Regional Director within 20 calendar days. Id. at Â§ 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, that decision may then be appealed to the General Counsel (Central Office) within 30 calendar days from the date of the Regional Director's response. Id. The Regional Director then has 30 calendar days to respond and the General Counsel has 40 calendar days to address the inmate's concern. Id. at Â§ 542.18.
As these regulations state: "The purpose of the Administrative Remedy Program is to allow an inmate to seek formal review of an issue relating to any aspect of his/her own imprisonment." 28 C.F.R. Â§ 542.10(a). Under this grievance process: "If an inmate raises an issue in a request or appeal that cannot be resolved through the Administrative Remedy Program, the Bureau will refer the inmate to the appropriate statutorily-mandated procedures." Id. at Â§ 542.10(c). Furthermore, under these procedures, no administrative remedy appeal is considered to have been fully exhausted until decided by the Central Office. 28 C.F.R. Â§ 542, et seq.
While Little has clearly been notified of his proposed RRC placement by prison officials, it is equally clear that Little has not fully exhausted his administrative remedies with respect to this matter before proceeding to federal court. (Doc. 7-1) 10, Ex.2.) Indeed, while Little has filed fifteen administrative remedies during his federal imprisonment, (Doc. 7-1, Ex. 1, Declaration of Susan Albert & 3; Attach. 1, Administrative Remedy Generalized Retrieval), five of which have related to his RRC placement, to date none of these administrative remedies have been fully exhausted by the petitioner.
Instead, the record reveals only halting and incomplete efforts on Little's part, efforts hampered by his persistent failure to follow directions and submit properly documented administrative appeals. For example, on November 8, 2011, Little filed Administrative Remedy in which he disputed his case manager's decision to deny him halfway house placement due to his disruptive behavior and lack of institutional programming. (Id.,Ex. 1, Albert Decl. Â¶4; Attach. 1, Administrative Remedy Generalized Retrieval; Attach. 2, Administrative Remedy 663857.) Warden Bledsoe denied this Administrative Remedy on November 22, 2011, informing Little:
A review of this matter reveals that you have received 16 disciplinary code infractions since your arrival at USP Lewisburg on May 11, 2010. These incident reports include incidents such as Engaging in a Sexual Act and Fighting with another person. This recommendation was based upon utilizing the criteria established in the Second Chance Act of 2007. The criteria states, the five factors to consider are . . . the history and characteristics of the prisoners . . . . Therefore, based on the above mentioned factors and your institutional adjustment in the Special Management Unit, you are not being afforded placement in a Residential Re-Entry Center. (Id.)
On December 5, 2011, Little filed a Regional Administrative Remedy Appeal from this decision (Id., Ex. 1, Albert Decl.Â¶ 5; Attach. 1, Administrative Remedy Generalized Retrieval.) The Bureau of Prisons' Regional Office rejected the appeal because Little failed to provide a copy of the institution administrative remedy response, (Id.), but informed Little that he could re-file his administrative remedy within ten days of the rejection notice. (Id.) Seven days later, on December 12, 2011, Little filed another Regional Administrative Remedy Appeal. (Id., Ex. 1, Albert Decl. Â¶Â¶6-7; Attach. 1, Administrative Remedy Generalized Retrieval.) However, on December 21, 2011, the Bureau of Prisons Regional Office rejected this second appeal because, once again, Little failed to provide a copy of the institution administrative remedy response. (Id.) The Regional Office again informed Little he could re-file his appeal within ten days of the notice. (Id.) On January 5, 2012, Little then filed yet another, third, Regional Administrative Remedy Appeal. (Id., Ex. 1, Albert Decl. Â¶8; Attach. 1, Administrative Remedy Generalized Retrieval; Attach. 3, Administrative Remedy 633857-R4.) On February 3, 2012, the Regional Director denied Little's appeal and informed him:
Records indicate you have a January 1, 2012, projected release date. Your Unit Team considered your individual situation, programming and transitional needs pursuant to the above criteria and recommended you be excluded from RRC placement. As indicated by the Warden, staff considered all required factors to include your need for services, public safety, and the need for the Bureau to best manage its inmate population.
Staff are afforded broad discretion in reaching this decision and you present no evidence this discretion was abused. (Id., Attach. 3 to Ex. 1.) Little then neglected to file a Central Office Appeal of this decision, as he was required to do. (Id., Ex. 1, Albert Decl. Â¶9; Attach. 1, Administrative Remedy Generalized Retrieval.)
Instead, on January 6, 2012, Little filed this petition for a writ of habeas corpus. (Doc. 1) In his petition Little challenges the prison's decision to deny him early release consideration under the Second Chance Act, arguing that the actions of prison personnel are arbitrary and inconsistent with the law. These issues have been fully briefed by the parties, (Docs. 1, 7 and 10), and are now ripe for disposition. For the reasons set forth below, it is recommended that the Court find that Little has failed to exhaust his administrative remedies, and dismiss this petition without prejudice.
A. The Exhaustion Doctrine Bars Consideration of
This Habeas Petition.
In our view, this petition suffers from a fundamental procedural flaw, since the petitioner has failed to properly exhaust his administrative remedies within the federal prison system. Although 28 U.S.C. Â§ 2241 contains no express exhaustion requirement, "[o]rdinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. Â§ 2241." Gambino v. Morris, 134 F.3d 156, 171 (3d Cir.1998); see also, e.g., Callwood v. Enos, 230 F.3d 627, 634 (3d Cir.2000); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir.1981). These exhaustion rules serve an important and salutary purpose. The United States Court of Appeals for the Third Circuit requires administrative exhaustion of a claim raised under Â§ 2241 for three 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 v. Federal Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir.1996); see also Gambino, 134 F.3d at 171; Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir.1988).
In this case, it is undisputed that Little has not exhausted his administrative remedies with respect to this RRC placement decision. With respect to habeas claims like those presented by here, which seek placement in a residential setting under the Second Chance Act, it is well settled that:
Courts in the Middle District of Pennsylvania have consistently held that "exhaustion of administrative remedies is not rendered futile simply because a prisoner anticipates he will be unsuccessful in his administrative appeals before the twelve-month pre-release mark, which is simply a statutory maximum and not a mandate." See Malvestuto v. Martinez, 2009 U.S. Dist. LEXIS 78231, *9 (M.D.Pa. Sept. 1, 2009) (Conner, J.); Melchiorre v. Martinez, 2009 U.S. Dist. LEXIS 91137, *7 (M.D.Pa. Sept. 30, 2009) (Conner, J.); D'Alfonoso v. Martinez, 2009 U.S. Dist. LEXIS 90344, *6 (M.D.Pa. Sept. 30, 2009) (Conner, J.); Torres v. Martinez, 2009 U.S. Dist. LEXIS 70577 (M.D.Pa. Aug. 12, 2009) (Munley, J.); Miceli v. Martinez, 2009 U.S. Dist. LEXIS 71877 (M.D.Pa. Sep. 15, 2008) (Rambo, J.)
Ross v. Martinez, No. 09-1770, 2009 WL 4573686, 3 (M.D.Pa. Dec. 1, 2009). Rigorously applying these exhaustion requirements, this Court has consistently rejected habeas petitions brought under the Second Chance Act where inmates have failed to fully exhaust their administrative remedies. See, e.g., Bisulca v. Schism, No. 09-2552, 2010 WL 1805394 (M.D.Pa. May 5, 2010); McCooey v. Martinez, No. 09-1533, 2010 WL 411744 (M.D.Pa. Jan. 25, 2010); Lacy-Thompson v. Martinez, No. 09-1320, 2009 WL 4823875 (M.D. Pa. Dec. 14, 2009); Ferris v. Holt, No. 09-1465, 2009 WL 3260557 (M.D. Pa. Oct. 8, 2009); Drummond v. Martinez, No. 09-1258, 2009 WL 3241851 (M.D. Pa. Oct. 5, 2009).
As the Court has previously explained when dismissing such a habeas petition challenging an RRC placement decision for failure to exhaust administrative remedies:
[C]courts in the United States Court of Appeals for the Third Circuit have consistently required an inmate to exhaust his administrative remedies prior to petitioning for a writ of habeas corpus. 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.
Melchiorre v. Martinez, No. 09-1123, 2009 WL 3241678, *2 (M.D.Pa. Sept. 30,2009).
Nor can an inmate like Little avoid this exhaustion requirement by simply asserting that he regards exhaustion as futile. Quite the contrary, as this Court observed in Melchiorre: "exhaustion of administrative remedies is not rendered futile simply because a prisoner anticipates he will be unsuccessful in his administrative appeals before the twelve-month pre-release mark, which is simply a statutory maximum and not a mandate. See 18 U.S.C. 3624(c)(1)-(6)." Id. at *3. See also, Bisulca v. Schism, No. 09-2552, 2010 WL 1805394 (M.D.Pa. May 5, 2010)(Conner, J., denying petition on exhaustion grounds).
Because Little has not exhausted his available administrative relief regarding the failure to consider him for early transfer or community placement under the Second Chance Act, and has not shown that the failure in pursuing administrative relief should be excused, this Court should, as a threshold matter, dismiss the petition for failure to exhaust administrative remedies, without prejudice to the filing of a new Â§ 2241 petition after the petitioner fully exhausts appropriate administrative relief. See also, Lindsay v. Williamson, 271 F. App'x. 158, 160 (3d Cir. 2008); Craig v. Zickefoose, No. 09-6513, 2010 WL 234908 (D.N.J. Jan. 15, 2010); Shoup v. Schultz, No. 09-0585, 2009 WL 1544664, at *4 (D.N.J. June 2, 2009); Breazeale v. Shultz, No. 09-2118, 2009 WL 1438236 (D.N.J. May 19, 2009).
Accordingly, for the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus filed pursuant to 28, United States Code, Â§ 2241, IT IS RECOMMENDED that the Petition be DENIED, without prejudice while the petitioner exhausts his administrative remedies, and that a certificate of appealability should not issue. The Petitioner is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. Â§ 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Martin C. Carlson United States Magistrate Judge.