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Tinsley v. Perdue

United States District Court, M.D. Pennsylvania

February 14, 2017

THEODORE TINSLEY, Petitioner
v.
WARDEN R.A. PERDUE Respondent

          MEMORANDUM

          MALACHY E. MANNION United States District Judge

         I. Background

         On July 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).

         The 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.

         By 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 denied.

         II. DISCUSSION

         A 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. 1995).

         A 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 corpus:

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) (citations omitted).
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 regulations.[1]

(Doc. 8, Memorandum at 5-7).

         Petitioner 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).

         In 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 ...


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