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Wolters v. Thomas

United States District Court, M.D. Pennsylvania

October 20, 2014



RICHARD P. CONABOY, District Judge.


Andrew Wolters, a prisoner presently confined at the McCreary United States Penitentiary, Pine Knot, Kentucky filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Named as Respondent is Warden Thomas who is employed at the Petitioner's prior place of confinement, the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg).[1]

By Memorandum and Order dated May 12, 2014, this Court denied relief with respect to Grounds 2, 3, & 4 of the Petition. See Docs. 31 & 32. In addition, it was determined that Wolters arguably set forth a viable federal habeas corpus claim with regards to his contention (Ground One) that the federal Bureau of Prisons (BOP) was precluded from implementing the Inmate Financial Responsibility Program (IFRP) to collect restitution in his case. Consequently, the Respondent was directed to file a supplemental response addressing Petitioner's surviving claims (Ground One).[2]

The Respondent's supplemental response argues that Ground One is subject to dismissal because "Wolters has failed to exhaust his administrative remedies and because his restitution schedule is consistent with the schedule directed by the sentencing court." Doc. 33, p. 1.


Petitioner alleges that on or about March 28, 2012, he learned that administrative sanctions had been imposed against him for not making payments pursuant to the IFRP. See Doc. 1, Ground One. Relying on Soroka v. Daniels , 467 F.Supp.2d. 1097 (D. Or. 2006), Wolters argues that the imposition of the IFRP in his case was improper because the sentencing court had not amended its restitution order.[3]

Administrative Exhaustion

Respondent's initial argument seeks dismissal of the remaining portion of the petition on the grounds that Wolters failed to exhaust his available administrative remedies.

It is well-settled that "[a] federal prisoner ordinarily may not seek habeas corpus relief until he has exhausted all available administrative remedies." Bradshaw v. Carlson , 682 F.2d 1050, 1052 (3d Cir. 1981)(emphasis added). A party is required to exhaust administrative remedies before seeking relief in federal court unless Congress has indicated to the contrary or the available administrative remedies are inherently inadequate. Young v. Quinlan , 960 F.2d 351, 356 (3d Cir. 1992). Exhaustion is only excused where pursuit of administrative remedies would be futile, the agency's actions clearly and unambiguously violate statutory or constitutional rights, or the administrative procedures would be inadequate to prevent irreparable harm. Lyons v. U.S. Marshals , 840 F.2d 202, 205 (3d Cir. 1988).

The Federal Bureau of Prisons (BOP) has a well established three (3) step Administrative Remedy Program whereby a federal prisoner may seek review of any aspect of his imprisonment. See 28 C.F.R. §§ 542.10-542.19. After attempting to informally resolve the issue, a BOP inmate can initiate the first step of the grievance process by submitting "a formal written Administrative Remedy Request, on the appropriate form (BP-9), " within twenty (20) calendar days "following the date on which the basis for the Request occurred." See 28 C.F.R. § 542.14(a). The Warden has twenty (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 (step two) on the appropriate form (BP-10) to the Regional Director within twenty (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 (step three) on the appropriate form (BP-11) to the General Counsel within thirty (30) calendar days from the date the Regional Director signed the response. 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.

In support of the non-exhaustion argument, Respondent has submitted a declaration under penalty of perjury by USP-Lewisburg Attorney Advisor Michael Romano. See Doc. 33-1, Exhibit A. Attorney Romano states that a review of the BOP's computerized index of administrative remedies reveals that since Wolters has been in federal custody he has filed 241 administrative grievances, 75 of which were fully exhausted. See id. at ¶ 6.

Romano's declaration elaborates that Petitioner attempted to initiate an IFRP related grievance at the national level. However, it was rejected on July 15, 2010 on the basis that it was not related to a sensitive issue.[4] The notice of rejection directed Petitioner that he needed to refile his grievance at the institutional level and then the regional level, if necessary before filing at the national level. See id. at ¶ 7. However, Wolters failed to do ...

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