United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge
1, 2015, the Petitioner, an inmate at the Federal
Correctional Institution at Schuylkill,
(“FCI-Schuylkill”), Minersville, Pennsylvania,
filed the instant petition for writ of habeas corpus pursuant
to 28 U.S.C. §2241. (Doc. 1). After receipt of the
appropriate filing fee, on September 28, 2015, an order to
show cause was issued. (Doc. 3). A response to the petition
was filed on October 19, 2015. (Doc. 4). On November 20,
2015, the Petitioner filed a reply brief. (Doc. 7).
Petitioner claims in the instant action that he was not
afforded due process in relation to his disciplinary
proceedings and that the requirements of the Administrative
Procedure Act, (“APA”), were violated by way of
the monetary sanction. (Doc. 1). As relief, he
requests that this Court order his good time credits and
institutional privileges be restored, declare that the
monetary fine is invalid and be restored to his inmate
account, and expunge the conviction stemming from the
September 2, 2014, urinalysis from his record. Id.
Petitioner further seeks a declaratory judgment that the BOP
regulation which allows for the imposition of a monetary fine
violates the APA and the Due Process Clause. Id.
Memorandum and Order dated May 3, 2016, Tinsley's
petition was dismissed for Tinsley's failure to exhaust
administrative remedies. (Docs. 8, 9).
Presently before the Court is Petitioner's motion for
reconsideration of this Court's May 3, 2016 Memorandum
and Order. (Doc. 10). For the reasons set forth
below, Petitioner's motion for reconsideration will be
motion for reconsideration is a device of limited utility. It
may be used only to seek remediation for manifest errors of
law or fact or to present newly discovered evidence which, if
discovered previously, might have affected the court's
decision. Harsco Corp. v. Zlotnicki, 779 F.2d 906
(3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986).
Accordingly, a party seeking reconsideration must demonstrate
at least one of the following grounds prior to the court
altering, or amending, a standing judgment: (1) an
intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion; or (3) the need to correct a clear
error of law or fact or to prevent manifest injustice.
Max's Seafood Café v. Quineros, 176 F.3d
669, 677 (3d Cir. 1999)(citing North River Ins. Co. v.
CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.
1995)). A motion for reconsideration is appropriate in
instances where the court has “...misunderstood a
party, or has made a decision outside the adversarial issues
presented to the Court by the parties, or has made an error
not of reasoning, but of apprehension.” See
Rohrbach v. AT & T Nassau Metals Corp., 902
F.Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other
grounds on reconsideration, 915 F.Supp. 712 (M.D. Pa. 1996),
quoting Above the Belt, Inc. v. Mel Bohannan Roofing,
Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). It may not be
used as a means to reargue unsuccessful theories, or argue
new facts or issues that were not presented to the court in
the context of the matter previously decided. Drysdale v.
Woerth, 153 F.Supp.2d 678, 682 (E.D. Pa. 2001).
“Because federal courts have a strong interest in the
finality of judgments, motions for reconsideration should be
granted sparingly.” Continental Casualty Co. v.
Diversified Indus. Inc., 884 F.Supp. 937, 943 (E.D. Pa.
review of the Court's May 3, 2016, Memorandum and Order
reveals the following with respect to this Court's
decision to dismiss the instant Petition for writ of habeas
Federal prisoners are generally required to exhaust
administrative remedies prior to seeking a writ of habeas
corpus pursuant to §2241. See Moscato v. Fed. Bureau
of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). Where a
petitioner has failed to exhaust his administrative remedies
due to a procedural default, and the default renders the
administrative process unavailable, consideration of a
§2241 claim is barred unless the petitioner can show
cause and prejudice. Speight v. Minor, 245 Fed.
App'x 213, 215 (3d Cir. 2007). However, the Third Circuit
has also “held that the administrative exhaustion
requirement in this context may be excused if an attempt to
obtain relief would be futile or where the purposes of
exhaustion would not be served.” Cerverizzo v.
Yost, 380 Fed. App'x 115, 116 (3d Cir. 2010)
The BOP's well-established multi-tier administrative
remedy program is set forth in 28 C.F.R.
§§542.10-542.19. Pursuant to the program's
provisions, appeals of DHO decisions must be submitted
initially to the Regional Director for the region where the
inmate is housed within twenty days of the DHO decision. 28
C.F.R. §§542.14(d)(2), 542.15(a). Once an appeal is
filed to the Regional Director, a response is due by the
Regional Director within thirty calendar days, and if no
response is received within that time, the inmate may
consider the absence of a response to be a denial.
Id. at §542.18. If the inmate is not satisfied
with the Regional Director's response, he may submit an
appeal to the General Counsel (Central Office) within thirty
calendar days of the date the Regional Director signed the
response. Id. at §542.15(a). An appeal to the
General Counsel is the final administrative appeal.
Id. Completion of an appeal to the General Counsel
constitutes exhaustion of administrative remedies. See
Lindsey v. Thomas, 2014 WL 3890005, at *5 (M.D.Pa.
Aug. 8, 2014). Once an appeal is filed with the General
Counsel, a response shall be made in forty calendar days. 28
C.F.R. §542.18. Again, if a response is not received
within this time, the inmate may consider the absence of a
response to be a denial. Id.
In his reply brief, the petitioner does not deny that he did
not file a final appeal with the General Counsel, but argues
that he did not do so because he never received the denial of
his appeal from the Regional Office. He claims, therefore,
that administrative remedies were not available to him
because he did not know to file an appeal to the General
Counsel. As discussed, the record demonstrates that the
petitioner's Regional Office appeal was denied on
November 7, 2014. However, even if for some reason the
petitioner did not receive a copy of the denial, as set forth
above, the regulations provide that an absence of a response
within the required time is to be construed by the inmate as
a denial, and the petitioner should have proceeded
accordingly to fully exhaust his administrative remedies. The
petitioner took no action to fully exhaust his administrative
remedies and offers no valid explanation for his failure to
follow the well-established administrative
(Doc. 8, Memorandum at 5-7).
makes two arguments in his motion for reconsideration. First,
he claims that pursuant to the Sixth Circuit's holding in
Risher v. Lappin, 639 F.3d 236, (6th Cir.
2011), this Court should find that Petitioner was prevented
from exhausting his administrative remedies. Additionally,
Petitioner claims that, pursuant to Woodall v. Fed.
Bureau of Prisons, 432 F.3d 235 (3rd Cir.
2005), exhaustion is not required, because he is challenging
the constitutionality of the BOP's regulation regarding
monetary fines as sanctions for misconduct. (Doc. 11).
Risher, after failing to receive a response from the
Regional Director in the time allotted for a reply, the
Plaintiff filed an appeal with the General Counsel,
explaining that the time for an answer from the Regional
Director expired and that he had not received a response.
Risher, 639 F.3d at 239. The General Counsel's
office rejected Risher's appeal because he failed to
include copies of his appeal to the Regional Director and the
Regional Director's response. Id. The rejection
notice indicated that Risher ...