Rosario v. Quay

Filing 6

ORDER: Please see attached Ruling and Order denying PETITION for Writ of Habeas Corpus 1 . The Clerk may enter judgment and close the file. So ordered. Signed by Judge Robert N. Chatigny on 1/21/2017.(Rickevicius, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHARLIE ROSARIO,
Petitioner,
v.
HERMAN QUAY,
Respondent.

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PRISONER
CASE NO. 3:15cv523(RNC)

RULING AND ORDER
Charlie Rosario, an inmate at FCI Danbury, brings this
action pro se pursuant to 28 U.S.C. § 2241 claiming that he was
denied due process in connection with a prison disciplinary
proceeding that resulted in his confinement in disciplinary
segregation and loss of good conduct time.

Respondent argues

that the petition should be denied because the record establishes
that petitioner has failed to exhaust administrative remedies and
was afforded all the process he was due.

I agree and therefore

dismiss the petition.
I.

Background
The record shows the following.

On November 15, 2014,

petitioner was charged with the prohibited act of Threatening
Another With Bodily Harm, which is classified as a High Severity
offense.

See 28 C.F.R. Part 541, Subpart A, “Table 1 -

Prohibited Acts and Available Sanctions.

The charge was based on

an incident at FCI Danbury earlier that day involving a
correctional officer and petitioner.

According to the officer’s

written report of the incident, the officer spoke with petitioner
while conducting rounds in petitioner’s housing unit.

Petitioner

told the officer he was working too hard and needed to relax
because some inmates did not like to be “mess[ed] with.”
Petitioner stated that the officer could be jumped.

When the

officer told petitioner that he was just doing his job,
petitioner again stated that the officer could be jumped.
On November 16, the officer’s report of the incident was
issued to petitioner.
concerning the report.

Lieutenant North interviewed petitioner
Petitioner admitted making the statements

attributed to him in the report but claimed “We were just joking
around.”

Lieutenant North concluded that the incident report was

accurate and referred the matter to the Unit Disciplinary
Committee.
On November 24, Correctional Counselor Rivera conducted a
Unit Disciplinary Committee Review, forwarded the matter to a
Disciplinary Hearing Officer (“DHO”), provided petitioner with
notice of a disciplinary hearing, and advised him of his rights.
On November 25, a disciplinary hearing was held.

Petitioner

acknowledged the incident report was correct but claimed he did
not intend to threaten the officer.

The DHO concluded that

petitioner had threatened the officer with bodily harm and
imposed the following sanctions: 27 days loss of good conduct
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time, 20 days confinement in disciplinary segregation, 90 days
loss of email privileges, and 90 days loss of commissary
privileges.
In this action, petitioner challenges the disciplinary
finding on the ground that he was denied due process.

He also

contends that he was unable to appeal the disciplinary finding
because documents were not delivered to him in a timely manner.
II.

Discussion
A petition pursuant to 28 U.S.C. § 2241 may be used by a

federal prisoner to expunge disciplinary sanctions, including
loss of good time credit.

Carmona v. United States Bureau of

Prisons, 243 F.3d 629, 632 (2d Cir. 2001).

Before commencing an

action under § 2241, a prisoner must exhaust administrative
remedies.

Id. at 634.

The purposes of the exhaustion

requirement include “protecting the authority of administrative
agencies, limiting interference in agency affairs, developing the
factual record to make judicial review more efficient, and
resolving issues to render judicial review unnecessary.”
v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003).

Beharry

Respondent has

shown that petitioner failed to comply with applicable
regulations of the Bureau of Prisons and thus failed to exhaust
his administrative remedies.

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BOP regulations provide that disciplinary findings may be
appealed to the Regional Director within 20 calendar days of the
date of decision.

28 C.F.R. §§ 542.14(d)(2), 542.15(a).

A

final appeal may be submitted to the General Counsel's Office
within 30 calendar days of denial of relief by the Regional
Director.

Id.

The filing date of an appeal is the date it is

received.

28 C.F.R. § 542.18; see also Marra v. Baird, No. 3:14-

CV-1011 (AVC), slip op. 9 (D. Conn. Apr. 9, 2015).

The time

limits at any level of review may be extended for a valid reason.
28 C.F.R. §§ 542.14(b), 542.15(a).
The administrative record establishes that petitioner did
not comply with the regulations.
report on November 25, 2014.

He received a copy of the DHO

In order to satisfy the 20-day

period for a timely appeal, he had to submit documents to the
Regional Director by December 15.

He missed the deadline by

approximately 9 days and his appeal was rejected as untimely.

He

was promptly notified that he could resubmit the appeal within 10
days supported by staff verification that the untimely filing was
not his fault.

Petitioner resubmitted the appeal beyond the 10-

day period and it too was rejected as untimely.

At that time, he

was given another opportunity to resubmit the appeal supported by
staff verification regarding the delay in filing but he took no
further action.
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Failure to exhaust administrative remedies results in a
procedural default, which bars judicial review of the defaulted
claim unless the prisoner shows that the failure to exhaust
should be excused.

See Carmona, 243 F.3d at 634.

Non-exhaustion

may be excused if the prisoner shows cause and prejudice, such as
“legitimate circumstances beyond the prisoner’s control [that]
preclude[d] him from fully pursuing his administrative remedies.”
Id.
Based on the administrative record, it is apparent that
petitioner filed his appeal after the 20-day deadline expired,
failed to resubmit the appeal in a timely manner despite being
given notice and an opportunity to do so, and ultimately
abandoned the appeal.

This constitutes a failure to exhaust.

See Champley v. Baird, No. 3:11CV635 VLB, 2012 WL 2872833, at *3
(D. Conn. July 11, 2012).

Accordingly, petitioner has the burden

of showing that circumstances beyond his control prevented him
from fully pursuing his remedies.

Carmona, 243 F.3d at 634.

In the absence of a showing of good cause for non-exhaustion, the
petition must be dismissed.

See Atkinson v. Willingham, No. 305-

CV-673 RNC, 2007 WL 685168, at *4 (D. Conn. Mar. 3, 2007).
Petitioner has not made the required showing.

He alleges

that prison officials failed to provide him with documents in a
timely manner.

But the record establishes that he got a copy of
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the incident report on November 16, the day after the incident
occurred, see Pet. (ECF No. 1) at 32, 65, and a copy of the DHO
report on November 25, the same day as the hearing.
(ECF No. 1) at 34.

See Pet.

After receiving these documents in a timely

manner, petitioner apparently took no action until December 15,
the appeal deadline.

On that date, he requested a complete copy

of the incident report, one that included a completed section
“Part II – Committee Action.”

See Pet. (ECF No. 1) at 63-65.

He

was given a copy of the completed report within 24 hours.
Petitioner has not shown that he needed the “Committee Action”
section in order to prepare and file a timely appeal and, even
assuming he did, he provides no explanation for his failure to
seek a complete copy of the report until the day the appeal was
due.
In addition to alleging that documents were not given to him
in a timely manner, petitioner makes generalized allegations
regarding prison officials’ interference with the administrative
process.

He alleges that he was “hampered” from timely appealing

the disciplinary sanctions; that prison staff “continuously”
discourage inmates from using the Administrative Remedy Process
by “with[h]olding the remedies until requested deadlines have
lapse[d]” and then refusing to sign documentation as to why
service was untimely; that inmates become “frustrated” and
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“abandon[]” their claims; and that prison staff have
“continuously erected illegitimate barrie[r]s retarding the
[administrative] process.”

Pet. (ECF No. 1) at 3-5.

Petitioner’s allegations are too general and conclusory to
sustain his burden of showing that he was prevented from fully
pursuing his administrative remedies due to circumstances beyond
his control.

To satisfy his burden, petitioner has to allege

facts showing that prison staff prevented him from pursuing an
appeal.

See Whalen v. Fed. Bureau of Prisons, No. 09-CV-1572

ENV, 2011 WL 2669112, at *3 (E.D.N.Y. June 30, 2011) (stating
that “interference by officials” can excuse non-exhaustion only
if it “makes compliance with procedural rules
impracticable”)(quotations and citations omitted); Dunbar v.
Sabol, 649 F. Supp. 2d 1, 4 (D. Mass. 2009) (stating that “merely
conclusory statements” are not sufficient to excuse failure to
exhaust administrative remedies); cf. Hinebaugh v. Wiley, 137 F.
Supp. 2d 69, 75 (N.D.N.Y. 2001) (finding that the failure to
exhaust should be excused when petitioner submits evidence that
his legal files were confiscated and not returned for fourteen
months).

Because petitioner has not made this showing, his

failure to exhaust cannot be excused.
In addition to relying on petitioner’s failure to exhaust,
respondent argues that petitioner’s due process claim is
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unavailing on the merits.

To satisfy due process requirements,

petitioner was entitled to advance written notice of the charge,
an opportunity to call witnesses and present documentary
evidence, and a written statement by the DHO of the evidence
relied on and the reasons for the disciplinary action.

See

Superintendent Mass. Corr. Inst. v. Hill, 472 U.S. 445, 453
(1985).

In addition, a DHO’s decision must be supported by “some

evidence.”

Id. at 455-56.

This standard is satisfied if the

record evidence could support the decision.

Id.

The record establishes that petitioner did receive the
process required by the Constitution.

He was given advance

written notice of the charge, declined an opportunity to call
witnesses and present other evidence, and received a copy of the
DHO’s decision the day of the hearing.

The DHO’s decision states

the evidence relied on and provides reasons for the disciplinary
action.

The decision is adequately supported by the officer’s

report and statements.
Petitioner’s due process complaint may be based on the
timing of the review conducted by the Unit Discipline Committee.
BOP regulations provide that a UDC will ordinarily review an
incident report within 5 work days.

28 C.F.R. § 541.7(c).

this case, there was a delay of 8 days.

In

But the Warden approved

an extension of time for the review as permitted by BOP policy.
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See Resp., Ex. B (ECF No. 5-2), at 7; Resp., Ex. C (ECF No. 5-2),
at 1.

In any event, a violation of the regulation concerning the

time for UDC does not itself constitute a violation of due
process.

See Agramonte v. Bragg, 2013 WL 5530518, *3-4 (D.S.C.

Oct. 7, 2013); Anderrson v. Bledsoe, 2012 WL 1414848, *6 (M.D.Pa.
Apr. 24, 2012).

And there is no indication petitioner was

prejudiced by the brief delay.
IV.

Conclusion
Accordingly, the petition is hereby denied.

Because I do

not think reasonable jurists would find it debatable whether the
petitioner failed to exhaust or whether the petition states a
valid due process claim, a certificate of appealability will not
issue.

The Clerk may enter judgment and close the case.

So ordered this 21st day of January 2017.

______________/s/ RNC ___________
Robert N. Chatigny
United States District Judge

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