Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shaposhnikov v. Ortiz

United States District Court, M.D. Pennsylvania

December 5, 2017

IGOR SHAPOSHNIKOV, Petitioner
v.
DAVID ORTIZ, Respondent

          MEMORANDUM

          William W. Caldwell United States District Judge.

         I. Introduction

         The pro se petitioner, Igor Shaposhnikov, is an inmate at the Federal Correctional Complex, Allenwood Low, in White Deer, Pennsylvania. Petitioner was formerly incarcerated at FCI Fort Dix, in New Jersey. He has filed a habeas petition under 28 U.S.C. § 2241 seeking reinstatement of 40 days' good conduct time (“GCT”). The GCT was disallowed after FCI Fort Dix prison staff discovered contraband in the 12-person cell to which Petitioner was assigned. Petitioner claims that he was denied due process during the disciplinary hearing held at FCI Fort Dix that resulted in the disallowance of his GCT. Specifically, he claims that there was insufficient evidence to find that he was in possession of the contraband.

         Petitioner named as respondent, David Ortiz, the warden at FCI Fort Dix.[1]Respondent opposes Shaposhnikov's petition on two grounds. First, Petitioner has not exhausted his administrative remedies, so we should not reach the merits. Second, even if we do reach the merits, the petition fails anyway because there was some evidence to support the disciplinary finding by way of Petitioner's constructive possession of the contraband.

         II. Background

         In 2015, Petitioner was serving his sentence in a 12-person cell at FCI Fort Dix. (Doc. 1, 2241 petition, at ECF p. 1). On the morning of August 24, 2015, prison staff conducted a “shakedown” of the cell and discovered “three shanks, a cell phone, and a screwdriver in a hole in the sheet rock . . . .” (Doc. 8 at ECF p. 2; Doc. 8-2 at ECF p. 20, incident report; Doc. 8-2 at ECF p. 26, photo sheet; Doc. 8-2 at ECF p. 27, memorandum from the correctional officers who conducted the search). The hole in the sheetrock was nearest bed 3L. (Doc. 8-2 at ECF p. 20, incident report).

         None of the inmates assigned to the cell claimed responsibility for the contraband, (Doc. 8-2 at ECF p. 21), so each of them, including Petitioner, was issued an incident report for violation of Bureau of Prisons (BOP) Code 108, “possession, manufacture, introduction of a hazardous tool.” (Doc. 8-2, ECF at pp. 20, 26). As Petitioner describes it, he “and all other inmates residing in the twelve-man cell were taken to the lieutenant's office and were issued incident reports as a result of weapons found in the cell.” (Doc. 1 at ECF p. 1).

         Petitioner was issued “Incident Report Number 2753487.” (Doc. 8-2 at ECF p. 18). In a response to the investigating officer, Petitioner stated: “I know nothing about weapons or phone in the room.” (Doc. 8-2 at ECF p. 21).

         On September 9, 2015, Petitioner's disciplinary hearing was held. (Doc. 8-2 at ECF p. 18). At the hearing, Petitioner stated that he had never seen the contraband before, that he was “not aware they were in the room, ” and that he had “been in the room for four or five months.” (Doc. 8-2, at ECF p. 18).

         The Discipline Hearing Officer (DHO) found that Petitioner had committed the prohibited act. The decision was based on the evidence provided, which included the written report by one of the correctional officers who conducted the search. (Doc. 8-2 at ECF p. 19). The DHO imposed sanctions on Petitioner, including a disallowance of 40 days of GCT. (Id.) The DHO report was prepared on September 22, 2015, Petitioner was provided a copy of the report on September 30, 2015, and advised that he had the right to appeal through the administrative remedy procedure within twenty calendar days. (Id.)

         On Friday, October 2, 2015, Petitioner initiated efforts to appeal the DHO's decision by filing Administrative Remedy Request Number 837708 at FCI Fort Dix, which is considered the “institution level.” (Doc. 8 at ECF p. 7). The appeal was rejected that same day because Petitioner incorrectly filed the appeal at the institution level; it should have been filed at the regional level. (Id. at ECF p. 8). Petitioner, on the other hand, claims that he inquired with his correctional counselor, Mr. Lee, to determine how he should appeal the DHO's decision. (Doc. 1 at ECF p. 6). Petitioner avers that Mr. Lee instructed him to complete a BP-9 form and return it to him the next day.[2] (Id.) Petitioner states that he did as instructed. (Id.) Petitioner claims that his appeal was rejected at the institution level three days later because it was filed at the incorrect level.[3] (Id.)

         On October 26, 2015, Petitioner filed Administrative Remedy Request Number 837708 at the BOP's Northeast Regional Office. (Doc. 8 at ECF p. 8). Petitioner affirms under penalty of perjury that he used a BP-10 form[4] to make this submission.[5](Doc. 1 at ECF p. 6, penalty-of-perjury declaration). On November 4, 2015, the Administrative Remedy Coordinator at the Northeast Regional Office rejected Petitioner's appeal because it was not submitted “on the proper form.” (Doc. 1-1 at ECF p. 5).

         The rejection notice instructs the Administrative Remedy Coordinator to “circle” either “BP-9, ” “BP-10, ” or “BP-11” to indicate to Petitioner which is the proper form on which to submit an appeal at the regional level. (Id.) None of the listed options were circled. (Id.) The rejection notice further directs that “you may resubmit your appeal in proper form within 10 days of the date of this rejection notice.” (Id.) The rejection notice, however, does not indicate which form Petitioner submitted, why it was not the proper one, or which form would be proper.[6] According to the rejection notice, Petitioner had until November 14, 2015, to resubmit Administrative Remedy Request Number 837708.

         On November 16, 2015, Petitioner again appealed the DHO's decision to disallow his 40 days' GCT. (Doc. 8 at ECF p. 8). This time, he appealed to the Northeast Regional Office using a separate Administrative Remedy Request Number: 842681. (Id.) On November 18, 2015, the Administrative Remedy Coordinator rejected Petitioner's appeal for again being submitted on the improper form. (Id.) Again, there is no indication which form Petitioner actually submitted or why it was rejected as “improper.” Petitioner was instructed to resubmit Administrative Remedy Request Number 842681 by November 28, 2015. (Id.)

         Also on November 18, 2015, Petitioner refiled Administrative Remedy Request Number 837708 at the regional level.[7] (Doc. 8-2 at ECF p. 4). The next day, November 18, 2015, the Administrative Remedy Coordinator rejected Petitioner's resubmission of Administrative Remedy Request Number 837708. (Id.) The corresponding rejection notice indicates that the resubmission was due by November 14, 2015, and, as a result, the resubmission was rejected as untimely. (Id.) Petitioner avers that he was hindered from timely resubmitting his appeal because his correctional counselor was dilatory in providing Petitioner with the correct Administrative Remedy Request form:

I sent the BP-10 for[m] to Region. It was returned stating it was the wrong form. They stated I have 10 days to re-appeal from the date it was sent. However, by the time I obtained the right form from my counselor it was another four days. Region claimed it received my appeal after the 10 days. Therefore it was time-barred.[8]

(Doc. 1 at ECF p. 6). Regardless, the rejection notice instructed Petitioner to resubmit Administrative Remedy Request Number 837708 by November 29, 2015. (Doc. 1-1 at ECF p. 6). The rejection notice further instructed that, to be considered on its merits, Petitioner must include with his resubmission a memorandum from an appropriate staff ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.