IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
March 19, 2013
SHAWN HENDERSON, PETITIONER,
ASSOCIATE WARDEN YOUNG, RESPONDENT.
The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge
(Magistrate Judge Carlson)
REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
The petitioner, Shawn Henderson, is a federal prisoner with a penchant for breaking the rules. Indeed, since he entered the federal prison system in 2007 Henderson has incurred no less than 73 incident reports for prison rules infractions. As a consequence of this recidivism, and persistent failure to abide by institutional rules, Henderson has not been favorably considered for early release to a residential re-entry center (RRC).
These multiple disciplinary infractions, and their impact upon Henderson's early release to a residential re-entry center, now are the subject of Henderson's current habeas corpus petition. Ignoring his own misconduct, Henderson has filed this petition urging the court to both vacate his disciplinary citations, and direct prison officials to give him early favorable consideration for release to a residential re-entry center. Yet, while Henderson seeks this relief he has, once again, neglected to obey the rules. Specifically, Henderson has failed to follow the prison rule which requires inmates to fully exhaust their administrative remedies before seeking habeas corpus relief in federal court.
There are consequences which flow from failure to abide by the rules. In this case, for the reasons set forth below, we find that one of these consequences is that Henderson's petition should be dismissed for failure to exhaust his administrative remedies.
B. Factual Background
The pertinent facts can be simply stated:
Shawn Henderson is currently serving a 60 month sentence imposed upon the petitioner following his conviction in 2007 for possession of firearms by a convicted felon in further of drug trafficking. (Doc. 7, Ex. A, ¶3.) In federal prison Henderson was convicted in 2009 of possession of contraband, and was sentenced to an additional 18 months imprisonment. (Id., ¶4.) While in custody Henderson has amassed 73 separate incident reports, a record of prison misconduct which has led prison officials to decline to recommend Henderson for early release from prison to a residential re-entry center. In the instant federal habeas corpus petition, Henderson challenges both these multiple disciplinary citations, and the refusal of prison officials to award him favorable residential re-entry center consideration. Yet while Henderson challenges these prison decisions it is evident that he has not followed prison rules by properly exhausting his administrative remedies with respect to these disciplinary and residential re-entry center placement issues.
This is a significant failure on Henderson's part since the Bureau of Prisons has an administrative remedy process which must be exhausted before an inmate can bring an action in federal court. 28 C.F.R. §§ 542, et seq. This administrative remedy process is a method by which an inmate may seek formal review of a complaint related to any aspect of his imprisonment. 28 C.F.R. § 542.10(a).
Under this process in order to exhaust appeals an inmate must first raise his complaint with his unit team through an informal resolution attempt. If the concern is not informally resolved, the inmate may file an appeal to the Warden of the institution where he is confined. 28 C.F.R. § 542.13. However, appeals of a Disciplinary Hearing Officer (DHO) decision must be submitted initially "to the Regional Director for the region where the inmate is currently located." 28 C.F.R. § 542.14(d)(2). An inmate has twenty calendar days to file an appeal of a DHO's decision with the Regional Director. 28 C.F.R. § 542.15(a). The inmate may further appeal an adverse decision to the Central Office of the Bureau of Prisons within 30 calendar days of the Regional Director's decision. Id. No administrative remedy appeal is considered to have been fully exhausted until it has been filed at the Bureau of Prisons's Central Office. 28 C.F.R. § 542, et seq. "If 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." 28 C.F.R. § 542.18.
In this case prison records reveal that Henderson has filed twenty (20) administrative remedies while in its custody. (Doc. 7, Ex. 1, Decl. of Paralegal Specialist Susan Albert, ¶ 7.) Four of those remedies challenged DHO sanctions, while six challenged Residential Re-entry Center (halfway house) placement issues, the matters which Henderson now seeks to contest in this habeas corpus petition. (Id.) The remaining ten remedies are unrelated to the issues raised in Henderson's petition. ( Id.)
None of these administrative remedy appeals have ever been fully or properly exhausted by Henderson. For example, on August 24, 2010, Henderson filed administrative remedy 604093-F1 at the institution level regarding good conduct time and a disciplinary transfer. (Id. ¶ 8; Attach. 1 at 8.) The administrative remedy was rejected the same day for being submitted at the wrong level, failing to submit the request through the correct staff, and failing to provide a copy of the DHO report, which he was challenging. (Id.) Henderson then took no further steps to correct these errors or file other administrative remedies regarding this disciplinary issue. (Id. ¶ 8; Attach. 1 at 8-17.)
Four months later, on December 16, 2010, Henderson filed administrative remedy appeal 618985-R1 at the Regional Office level challenging a DHO hearing dated November 23, 2010. (Id. ¶ 9; Attach. 1 at 9.) The administrative remedy was not legible and was rejected. (Id.) Henderson was informed that he could re-file his administrative remedy appeal within 10 days of the date of the rejection notice, but elected not to do so. (Id. ¶ 9; Attach. 1 at 8-17.)
Six weeks later Henderson pursued another flawed appeal when on January 31, 2011, Henderson filed administrative remedy 624423-F1 at the institution level, requesting that an incident report be expunged. (Id. ¶ 10; Attach. 1 at 10.) The administrative remedy was rejected for failing to attach a copy of the incident report or failing to note the incident report number, and Henderson elected to file any other administrative remedies regarding this issue. (Id. ¶ 10; Attach. 1 at 8-17.)
The following month, on February 25, 2011, Henderson filed administrative remedy appeal 628772-R1 at the Regional Office level regarding a yet another disciplinary decision. (Id. ¶ 12; Attach. 1 at 11.) This administrative remedy appeal was rejected on March 1, 2011, for raising more than one issue within the appeal, failing to attach the DHO report, and for failing to wait for the DHO's decision prior to filing an administrative remedy. (Id.) Henderson was informed that he could re-file his appeal within 10 days of the rejection notice and was also informed to re-submit his DHO appeal to the Regional Office within 20 days of the DHO's rendered decision. (Id.) However, once again Henderson failed to follow the simple steps necessary to perfect this appeal.
Henderson's pattern of procedural non-compliance continued in 2012. Thus, on May 16, 2012, Henderson filed administrative remedy 688595-F1 at the institution level, challenging his denied Residential Re-entry Center placement. (Id. ¶ 13; Attach. 1 at 13.) That same day, the administrative remedy was voided and it was noted that the administrative remedy was "inadvertently accepted. Should be rejected. No [informal resolution] attempt." (Id.)
In addition, on May 16, 2012, Henderson filed another administrative remedy at the institution level, challenging the denial of his Residential Re-entry Center (RRC) placement. (Id. ¶ 14; Attach. 1 at 14.) This administrative remedy was rejected for failing to attempt to resolve the challenged issue at the informal level first or failing to provide necessary evidence of the attempt. (Id.) Henderson was informed that he could re-file his administrative remedy within 10 days of the rejection notice. However, rather than re-file the remedy at the institution level as instructed, Henderson filed administrative remedy appeal 688611-R1 at the Regional level challenging his denied RRC placement. (Id. ¶ 15; Attach. 1 at 15.) The administrative remedy appeal was rejected on June 7, 2012, for failing to attempt to resolve the issue informally and at the institution level or for failing to provide necessary evidence of the attempt, and for failing to provide a copy of the Warden's decision (BP-9) with his appeal. (Id.)
On June 6, 2012, Henderson filed administrative remedy 691517-F1 at the institution level, in which he once again challenged his RRC placement denial. (Id. ¶ 18; Attach. 1 at 14.) The administrative remedy was denied on June 12, 2012, and Henderson failed to file any other administrative remedies regarding this issue. (Id. ¶ 18; Attach. 1 at 8-17.) Instead, ignoring the guidance and direction he had received on multiple prior occasions, on July 2, 2012, Henderson filed administrative remedy appeal 688611-R2 for a second time at the Regional level challenging his denied RRC placement. (Id.¶ 16; Attach. 1 at 15.) On July 5, 2012, the administrative remedy appeal was rejected for failing to attempt to resolve the issue informally and at the institution level or for failing to provide necessary evidence of the attempt, and for failing to provide a copy of the Warden's decision (BP-9) with his appeal. (Id.)
On September 10, 2012, Henderson filed administrative remedy appeal 688611-A1 at the Central Office level which once again challenged his denied RRC placement. ( Id.¶ 17; Attach. 1 at 16.) On October 26, 2012, this administrative remedy appeal was rejected for submitting the appeal at the wrong level and failing to file at the Regional level or institution level first, failing to obtain the Warden's response prior to filing the appeal, failing to submit a copy of the Regional Office's response to his appeal, and for submitting two different remedy numbers. (Id.) Henderson was informed that he could re-file his appeal within 15 days of the rejection notice, but has declined to do so. (Id. ¶ 17; Attach. 1 at 8-17.)
It is against the backdrop of this persistent refusal to follow administrative appeals processes that Henderson now invites us to undertake an evaluation of multiple disciplinary and RRC placement decisions, none of which have been fully examined through the administrative appeal process. For the reasons set forth below, it is recommended that we decline Henderson's invitation and dismiss his petition without prejudice to Henderson attempting to re-present any claims he may have once he has fully and properly exhausted these appeals.
A. The Exhaustion Doctrine Bars Consideration of This Habeas Petition
At the outset, to the extent that Henderson challenges multiple disciplinary citations and RRC placement decisions in this petition, his petition suffers from a fundamental and persistent procedural flaw, since the petitioner has consistently failed to properly exhaust his administrative remedies within the federal prison system, despite being provided with explicit guidance regarding the steps he needs to take to fully exhaust an administrative appeal on numerous occasions. Although 28 U.S.C. § 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. § 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 § 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, Henderson has not fully exhausted his administrative remedies, since Henderson has repeatedly neglected to fully prosecute this grievance through the three-tier grievance process prescribed by prison regulations. Thus, this case presents the very paradigm of an unexhausted petition. With respect to unexhausted habeas claims like those presented by here, 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 . . . ..' " Ross v. Martinez, No. 09-1770, 2009 WL 4573686, 3 (M.D.Pa. Dec. 1, 2009). Quite the contrary, rigorously applying these exhaustion requirements, court have consistently rejected habeas petitions challenging prison disciplinary decisions where the inmate-petitioners have failed to fully exhaust their administrative remedies. See, e.g., Johnson v. Williamson, 350 F. App'x 786 (3d Cir. 2009); Pinet v. Holt, 316 F. App'x 169 (3d Cir. 2009); Moscato v. Federal Bureau of Prisons, 98 F.3d. 757 (3d Cir. 1996).
As this court has previously explained when dismissing a federal prisoner's habeas petition for failure to exhaust administrative remedies:
In order for a federal prisoner to exhaust his administrative remedies, he must comply with 28 C.F.R. § 542. See 28 C.F.R. § 542.10, et seq.; Lindsay v. Williamson, No. 1:CV-07-0808, 2007 WL 2155544, at *2 (M.D.Pa. July 26, 2007). An inmate first must informally present his complaint to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for administrative relief. 28 C.F.R. § 542.13(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. 28 C.F.R. § 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. 28 C.F.R. §§ 542.15(a), 542.18. No administrative appeal is considered finally exhausted until a decision is reached on the merits by the BOP's Central Office. See Sharpe v. Costello, No. 08-1811, 2008 WL 2736782, at *3 (3d Cir. July 15, 2008).
Miceli v. Martinez, No. 08-1380, 2008 WL 4279887, 2 (M.D.Pa. Sept. 15, 2008)
This exhaustion rule in federal habeas corpus proceedings is also subject to a procedural default requirement. As the courts have explained: "[A] procedural default in the administrative process bars judicial review because 'the reasons for requiring that prisoners challenging disciplinary actions exhaust their administrative remedies are analogous to the reasons for requiring that they exhaust their judicial remedies before challenging their convictions; thus, the effect of a failure to exhaust in either context should be similar.' Sanchez, 792 F.2d at 698. We require exhaustion 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. Bradshaw, 682 F.2d at 1052; see also Schlesinger v. Councilman, 420 U.S. 738, 756-57, 95 S.Ct. 1300, 1312, 43 L.Ed.2d 591 (1975) (exhaustion avoids duplicative proceedings and insures that judicial review will be informed and narrowed); McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969) (circumvention of administrative process diminishes effectiveness of an agency by encouraging prisoners to ignore its procedures). Requiring petitioners to satisfy the procedural requirements of the administrative remedy process promotes each of these goals." Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996) For these reasons, it is now well-settled that: "a federal prisoner who challenges a disciplinary proceeding within a federal institution, fails to exhaust his administrative remedies because of a procedural default, and subsequently finds closed all additional avenues of administrative remedy, cannot secure judicial review of his habeas claim absent a showing of cause and prejudice." Id.
These basic legal tenets apply here and are fatal to Henderson's multi-faceted habeas corpus petition, which seeks judicial review of numerous prison rules infractions committed by Henderson over the span of several years, as well as RRC placement decisions, without any compliance by the petitioner with prison rules governing disciplinary appeals. With respect to his complaints regarding these disciplinary citations and prison placement decisions, Henderson is an inmate who has failed to exhaust his remedies, and now fails to provide cause and prejudice which excuses this earlier procedural default. Therefore, Henderson's unexhausted claims should be dismissed.
Accordingly, for the foregoing reasons, upon consideration of the Petition for Writ of Habeas Corpus, IT IS RECOMMENDED that the Petition be DISMISSED, without prejudice to Henderson exhausting 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. § 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.
Submitted this 26th day of February 2013.
Martin C. Carlson
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