United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge.
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.
named as respondent, David Ortiz, the warden at FCI Fort
Dix.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.
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,
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).
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).
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).
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.
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
(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. (Id.)
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 to make this
submission.(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).
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. According to the rejection notice,
Petitioner had until November 14, 2015, to resubmit
Administrative Remedy Request Number 837708.
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,
November 18, 2015, Petitioner refiled Administrative Remedy
Request Number 837708 at the regional level. (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.
(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 ...