United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, Magistrate Judge.
I. Statement of Facts and of the Case
This case involves a habeas corpus petition by a federal inmate, challenging the outcome of a disciplinary proceeding. We had initially recommended that this disciplinary matter be remanded to the Bureau of Prisons for further proceedings to further consider exculpatory information presented by the petitioner. (Doc. 8.) Upon review, the District Court determined, however, that a remand to the Bureau of Prisons was not necessary on this claim. (Docs. 14 and 15.) Instead, the District Court upheld the DHO's treatment of the evidence in this case, and remanded this matter to us for consideration of two procedural complaints made by Howell; namely, Howell's claim that the Bureau of Prisons violated its own regulations by failing to hold a timely hearing and further failed to provide the petitioner with staff assistance in this disciplinary setting.
For the reasons set forth below, it is recommended that these procedural claims advanced by Howell in this habeas corpus petition be denied
B. DHO Proceedings
The pertinent facts in this case can be simply stated:
The petitioner, Jacob Howell, is a federal prisoner who was housed at the Federal Correctional Institution, Schuylkill, in April of 2012. On the evening of April 12, 2012, Howell was moved by prison staff into cell 211, a cell previously occupied by other prisoners, and a cell that Howell now shared with another inmate. The following morning, the cell that Howell shared with another inmate was searched and the searching officer reported that:
On 4/13/2012 at 11:05 am, while shaking down cell 211, I discovered a 5 3/4 & 10 3/4 inch metal weapon located in the window fixture. The 5 3/4 inch weapon was a flattened piece of metal that was bent to a point and the 10 3/4 inch weapon was a silver piece of metal rod from an unknown source. The cell is also occupied by inmate BOWMAN #XXXXX-XXX.
(Doc. 5-1, Ex. G.) This incident report was delivered to Howell on April 13, 2012, at approximately 6:19 p.m. (Id. §§ 14-16.) Six days later, on April 19, 2012, Howell appeared before the Unit Discipline Committee ("UDC"), where he received and signed a copy of the "Inmate Rights at Discipline Hearing" form. ( Id., Ex. 1, McCluskey Decl.; Attach. F, Inmate Rights at Discipline Hearing Form, at 1.) Howell also signed the form entitled "Notice of Discipline Hearing Before the DHO." ( Id., Ex. 1, McCluskey Decl.; Attach. F, Notice of Discipline Hearing Before the DHO Form, at 2.) These forms notified Howell of his right to staff assistance at disciplinary hearings, and on the forms, Howell indicated that he understood his rights and he did not want a staff representative or any witnesses at the DHO hearing. (Id.) The UDC then referred the charge to the DHO for further hearing. ( Id., Ex. 1, McCluskey Decl; Attach. E, Incident Report §§ 17-21.)
That DHO hearing took place approximately 2 weeks later, on May 2, 2012. ( Id., Ex. 1, McCluskey Decl.; Attach. G, DHO Report § I(B).) At the hearing, the issue of Howell's right to staff assistance arose again, and it was noted that Howell requested a staff representative who was not available. (Id. § II(C).) Howell was informed he had the option of postponing the hearing, however, he elected to waive the appearance of a staff representative and declined the appearance of any witnesses. (Id. §§ II(C), III(C)(1).) At this hearing, Howell was advised of his rights and denied the charge stating he understood he was responsible for items found in his cell, but the weapons found were not his. (Id. § III(B).)
On May 10, 2012, the DHO issued his written decision in this disciplinary matter. ( Id . § IX.) In that decision, the DHO found, based upon the greater weight of the evidence, that Howell committed the prohibited act of possession of a weapon on April 13, 2012. (Id. § V.) The DHO sanctioned Howell to thirty days in disciplinary segregation, a twenty-one day disallowance of good conduct time, and a four-month loss of telephone privileges. (Id. § VI.) A copy of the report was delivered to petitioner on May 11, 2012. (Id. § IX.)
C. Howell's Administrative Appeal
The Bureau of Prisons has an administrative remedy process, which must be exhausted before an inmate can bring an action in federal court. See 28 C.F.R. § 542 et seq. The administrative remedy process is a method by which an inmate may seek formal review of a complaint related to any aspect of his imprisonment. See 28 C.F.R. § 542.10(a). While there are generally several levels of review within an institution for inmates, appeals of a 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 such an appeal. See 28 C.F.R. § 542.15(a). The inmate may further appeal an adverse decision to the Central Office of the BOP within thirty calendar days of the Regional Director's decision. Id . No administrative remedy appeal is considered to have been fully and finally exhausted until it has been denied by the BOP's Central Office. ( Id., Ex. 1, ¶ 7.) All administrative remedies, whether accepted or rejected, are entered into the BOP's computerized database. However, actual copies of rejected administrative remedies are not maintained. (Id. ¶ 8.)
In this case, a review of the Bureau of Prison's administrative remedy record for Howell indicates that Howell appealed the DHO's decision to both the Regional and Central Offices, but did not assert in those appeals the procedural due process violations cited here relating to not having a staff representative and an untimely DHO hearing. ( Id., Ex. 1, McCluskey Decl.; Attach. D, Administrative Remedy Appeal and Resp.) Furthermore, even if Howell attempted to raise these procedural due process claims for the first time mid-way through this administrative process, those claims would ...