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Gross v. Warden, USP Canaan

United States District Court, M.D. Pennsylvania

June 23, 2017

ANDREW GROSS, III, Petitioner
v.
WARDEN, USP CANAAN, Respondent

          MEMORANDUM

          Christopher C. Conner, Chief Judge

         Presently before the court is a petition for writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2241 filed by petitioner Andrew Gross ("Gross"), a federal inmate currently confined at the United States Penitentiary, Canaan, in Waymart, Pennsylvania ("USP-Canaan"). Named as the sole respondent is the warden of USP-Canaan. The petition is ripe for disposition and, for the reasons that follow, will be denied.

         I. Background

         Gross raises several issues in the instant habeas petition. First, Gross seeks restoration of fifty-five (55) days good conduct time which he claims the BOP failed to restore after the Regional Director expunged incident report number 2634977. (Doc. 1, at 3).

         Second, Gross claims that his custody classification score is incorrectly elevated because the BOP failed to remove three (3) points after the Regional Director expunged an incident report in which he was charged with attempted escape. (Doc. 1, at 3). He asserts that this elevated custody classification score is preventing him from transfer to a lower security facility and removal from the two-hour watch high accountability program. (Id.) He further claims that he was denied placement in a halfway house because the escape history appears in his prison record. (Id.)

         Third, Gross claims the BOP failed to restore fifty-four (54) days good conduct time after the Regional Director partially granted his appeal of Administrative Remedy 588468-R11, which relates to an appeal of incident report number 1868010. (Doc. 1, at 4).

         Lastly, Gross requests that the court excuse his failure to exhaust administrative remedies as futile. (Doc. 1, at 2). He asserts that his immediate judicial interests outweigh the exhaustion requirement.

         For relief, Gross requests immediate release to a halfway house, reclassification to a lower security institution, restoration of his good conduct time, and a change in his custody classification score. (Doc. 1, at 1, 3-4).

         II. Discussion

         A. Incident Report Number 2634977

         Gross argues that he is entitled to reinstatement of fifty-five (55) days of good conduct time based on the Regional Director's expungement of incident report number 2634977. (Doc. 1, at 3). Respondent counters that the Regional Director only expunged two of the three code violations charged in incident report number 2634977, and the sanctions for the remaining guilty finding of attempted escape included disallowance of forty-one (41) days of good conduct time and forfeiture of fourteen (14) days of non-vested good conduct time. (Doc. 10, at 8-9). Thus, respondent contends that the petition should be denied as to incident report number 2634977. (Id.) Gross' claims regarding incident report number 2364977 are meritless.

         On October 7, 2014, Gross was served with incident report number 2634977, charging him with a code 102A violation for attempted escape, a code 196A violation for use of the mail for an illegal purpose, and a code 305 violation for possession of anything not authorized. (Doc. 10-2, at 12, Incident Report). The incident is described as follows:

On September 30, 2014, 1 Case Manager Jon Schmalensee was conducting a cell search of D2-219L. During a search of his locker, I found Uniform Commercial Code (UCC)-l forms in his property, with his name at the top. UCC forms are prohibited, because inmates can use them to file false liens on staff. I then gathered all of his paperwork, and brought it to the D-Unit crossover in order to search the rest. I searched the rest of the contents of his paperwork, and found numerous altered court documents. He had altered an FRP receipt to fraudulently claim that he had paid his FRP obligation. His altering of FRP receipts, which had appeared as paid through the courts is a use of the mail for an illegal purpose.
I also found in his property a copy of his Judgment and Commitment Order, which he had altered, eliminating two charges from it, effectively making it appear as though his time should be reduced. He also had with this altered J&C a doctored cover letter from the Eastern District Court of Michigan, claiming the doctored J&C was an amended one, certified by the court. His attempt at getting his projected release date changed is an attempted escape.
Finally, I found numerous altered tax documents and hundreds of names and social security numbers in his property. He had filled out and altered W-2 and 1040 documents for a Rebecca Sanchez and an Adrian Cole. All of these items are considered contraband, as they can and might have been used to commit identity theft.

(Id.)

         On December 9, 2014, Gross received advanced written notice of the charges against him. (Doc. 10-2, at 136). The matter was referred to the Unit Discipline Committee ("UDC") for further action. (Id. at 137). Gross appeared before the UDC and the UDC ultimately referred the incident to the Discipline Hearing Officer ("DHO"). (IdJ On December 11, 2014, a staff member informed Gross of his rights at the DHO hearing and provided him with a copy of the "Inmate Rights at Discipline Hearing" form and "Notice of Discipline Hearing before the Discipline Hearing Officer (DHO)" form. (Doc. 10-2 at 137). Gross refused to sign the forms. (Id.)

         On January 29, 2015, Gross appeared for a hearing before DHO D. Ezekiel. (Doc. 10-2, at 136-140, DHO Report). During the January 29, 2015 hearing, the DHO confirmed that Gross received advanced written notice of the charges on December 9, 2014, that he had been advised of his rights before the DHO on December 11, 2014, and that Gross requested the assistance of a staff representative and requested to call one witness. (Id. at 136-37).

         The DHO again advised Gross of his rights and Gross indicated that he understood them. (Id. at 137). Gross did not submit any documentary evidence in support of his position. (Id.) Gross made the following statement regarding the charges:

Ms. Moore locked me up for all this, and then they kicked me out of SHU. Mr. Schamlensee comes to my unit two days later, searches my cell and writes me a shot. I didn't send the envelope to Grand Prairie, and those SS#'s found in my cell ...

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