White v. Berkebile
MEMORANDUM OPINION & ORDER: (1) Petitioner Karl Alan White's § 2241 petition, R. 2 is DENIED; (2) This action is DISMISSED WITHOUT PREJUDICE to White asserting his claims through the Bureau of Prisons administrative remedy p rocedures, 28 C.F.R. § 542. 13-19, and filing a new § 2241 petition if his claims are adversely decided; and (3) Judgment shall be entered contemporaneously with this Memorandum Opinion and Order in favor of the respondent. Signed by Judge Karl S. Forester on 5/16/2011. (TDA)cc: White
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
KARL ALAN WHITE,
D. BERKBILE, Warden,
Civil Action No. 7:11-00048-KSF
MEMORANDUM OPINION AND
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Karl Alan White, confined in the United States Penitentiary-Big Sandy (“USP-Big
Sandy”), located in Inez, Kentucky, has filed a pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241, [R. 2]. White challenges his security classification status and seeks a
transfer to a correctional institution with a lower security level. He has paid the $5.00 filing fee.
The Court reviews the § 2241 petition to determine whether, based on the face of the
petition and any exhibits attached thereto, White is entitled to relief. See Rule 4, Rules
Governing 28 U.S.C. § 2254 Cases; (applicable to § 2241 petitions under Rule 1(b)). See, e.g.,
Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa. 1979); see also 28 U.S.C. § 2243. A
district court may summarily dismiss a petition if it appears from its face that the petitioner is not
entitled to relief. See 28 U.S.C. § 2243; Blevins v. Lamanna, 23 F. App’x 216, 218 (6th Cir.
2001); Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970).
For the reasons set forth below, the Court will deny White’s § 2241 petition and dismiss
this proceeding without prejudice for his failure to exhaust applicable administrative remedies.
WHITE’S CRIMINAL HISTORY
In September 2007, a jury convicted White of seven federal drug and firearm offenses and
on November 2, 2007, White received a life sentence as to Counts 1 and 5 of the Indictment;
fifty (50) years as to Counts 2, 4 and 6; sixty (60) months as to Count 3; and sixty (60) months
as to Count 6. See United States v. White, No. 1:07-CR-00029-RHB (W. D. Mich.) [R. 130].
ALLEGATIONS OF THE PETITION
Prior to his transfer to USP-Big Sandy in 2010, White was confined in the United States
Penitentiary-Hazelton (“USP-Hazelton”), located in Bruceton Mills, West Virginia. White
alleges that because USP-Hazelton officials “fraudulently” assigned him a greater security
management variable than was warranted, he was transferred to USP-Big Sandy, which he
indicates is a higher security federal prison than USP-Hazelton. [R. 2-2, p. 6]. White alleges
that officials in the Bureau of Prisons (“BOP”) Designation and Sentence Computation Center
(“DSCC”), located in Grand Prairie, Texas, neglected to review his record and correct his
classification prior to his transfer from USP-Hazleton, and that USP-Sandy Warden Berkebile
committed “misfeasance” by not rejecting his transfer to USP-Big Sandy and failing to explain
to USP-Hazelton officials that he should not have been transferred. [Id.].
White alleges that he is exposed to a more violent atmosphere at USP-Big Sandy,
specifically, prison gangs, and that USP-Big Sandy officials have abused their discretion by
refusing to explain or document their reasons for keeping him there. [R. 2, p.3; R. 2-2, p. 6].1
He claims that the geographic separation from his family constitutes “unwarranted cruelty on
White alleges, however, that he “has already been the victim of gang violence at a
previous USP. . . .” See Petition, [R. 2, p. 3].
myself that has resulted in a sentence greater than necessary. I’m being deprived of my liberty
interest, by being placed in this harsh institution . . . .” [R. 2-2, p. 6.]. White further argues that
the Constitution grants him the right to be “free from being assaulted or excessive force used.”
[Id., p. 7]. White seeks an Order directing the BOP to transfer him to “a lower security federal
prison in the State where the commercial crimes were committed.” [R. 2, p. 3].
WHITE’S EXHAUSTION EFFORTS
In early October 2010, White submitted to USP-Big Sandy staff a “Request for an
Informal Resolution,” objecting to his security classification and arguing that it should be a “14.”
[R. 2-1, pp. 2-4]. White’s Counselor responded that a “greater security management variable”
had been placed on him until August 11, 2011; that White would not be transferred until that
date; and that White should read BOP Program Statement (“PS”) 5100.08, Management
Variables, which the Counselor attached to the response. Id., p. 2.
White submitted a BP-9 “Request for Administrative Remedy,” challenging (1) his
security classification based on the Management Variable which his USP-Hazelton Case
Manager and the DCSS had applied to him, and (2) his transfer to USP-Big Sandy.2 See R. 2-2,
pp. 5-7. White contends that he submitted his BP-9 Remedy Request on October 7, 2010.
The BOP has a multi-tiered administrative remedy process through which a federal
inmate may seek a remedy regarding his confinement. See 28 C.F.R. § § 542.10-542.19. Section
542.13(a) demands that an inmate first informally present his complaint to the staff, thereby
providing them with an opportunity to correct the problem, before filing a request for an
administrative remedy. If the inmate cannot informally resolve his complaint, then he may file a
formal written request (a BP-9 form) to the Warden. See id. § 542.14(a). If the inmate is not satisfied
with the Warden’s response, he may appeal by filing a BP-10 form with the Regional Director, and
if the inmate is not satisfied with the Regional Director's response, he may appeal by filing a BP-11
form with the Office of General Counsel. See id. § 542.15 (a)-(b).
On November 1, 2010, the USP-Big Sandy Administrative Remedy Coordinator issued
a “Receipt,” identifying White’s BP-9 Remedy Request as Remedy No. 613191-F1, stating that
the Remedy Request was received on October 29, 2010, and informing White that the Warden’s
Response would be due on November 18, 2010. Id., p. 8.3
The next day, November 2, 2010, White submitted his BP-10 Appeal to the BOP MidAtlantic Regional Office (“MARO”), see id., p. 9, despite the Administrative Remedy
Coordinator’s November 1, 2010, notice which clearly stated that a response to White’s BP-9
Remedy Request was not due until November 18, 2010. White stated in his November 2, 2010,
BP-10 Appeal that “The Warden, [D. Berkebile], has acquiesced that my liberty right’s [sic] and
welfare are being violated and jeopardize [sic] by not responding to the BP-229(13) that was
submitted to his office on October 7, 2010.” Id.
On November 23, 2010, the USP-Big Sandy Administrative Remedy Coordinator notified
White that it was extending until December 8, 2010, its time for responding to his BP-9 Remedy
Request. See “Extension of Time for Response,” Id., p. 10. On December 22, 2010, White resubmitted his BP-10 Appeal, reiterating the same claims and arguments he had made in his
November 2, 2010, filing. Id., p. 11. On December 30, 2010, the MARO rejected White’s BP10 appeal because he had not attached a copy of either his BP-9 Remedy Request or the
Warden’s response to his BP-9 Remedy Request. See “Rejection Notice,” id., p. 13.
The Administrative remedy Coordinator listed the subject of this Remedy Request
as “Access to Pre-Sentence Investigation Report.” Id.
same day (December 30, 2010), Warden Berkebile denied White’s BP-9 Remedy Request
(Remedy No. 613191-F1). Id.4
On January 11, 2011, White wrote a letter to the MARO, arguing that its December 30,
2010, “Rejection Notice” was erroneous. Id., p. 14. White stated that Warden Berkebile had
improperly listed his BP-9 Remedy Request as “filed” on October 29, 2010, instead of October
7, 2010; that the MARO had not responded to his BP-10 appeals; and that the Warden’s
December 30, 2010, response was twenty-two days late, having been due on December 8, 2010.
On January 14, 2011, the MARO issued a second “Rejection Notice,” again stating that
White had failed to attach a copy of either his BP-9 Remedy Request or the Warden’s response
to his BP-9 Remedy Request. Id., p. 16. However, the MARO informed White could re-submit
his appeal in the proper form “within ten days of this Rejection Notice.” Id.
White did not re-submit his BP-10 appeal and attach the requested BP-9 Remedy Request
documentation. Instead, on January 19, 2011, he wrote another letter to the MARO, arguing
with its January 14, 2011, rejection of his attempted BP-11 appeal(s). Id., p. 17. He reiterated
that Warden Berkebile had improperly treated his BP-9 Remedy Request as “filed” on October
29, 2010, instead of October 7, 2010, and that the Warden’s December 30, 2010, response was
twenty-two days late, having been due on December 8, 2010. Id. He informed the MARO that:
Berkebile concluded that White’s Management Variable complied with the PS
5100.08 and warranted his placement in a High Security Level institution. Id. Berkebile explained
that White’s Management Variable was based on his Public Safety Factor (“PSF”), which is
comprised of White’s criminal history and institutional conduct. Id. Berkebile further explained that
because White is a male inmate who has more than 30 years remaining to serve, including
non-parolable life sentences, he was assigned a PSF “of greatest security” and would be “housed in
a High Security Level institution” unless the PSF was waived. Id.
Therefore its [sic] the responsibility of your office to authorize my removal
from Big Sandy to a state and institution where the allege commercial crimes
were committed to save the court time from deciding an issue that has already
been decided with evidence presented to your office.
On February 3, 2011, the MARO rejected White’s January 19, 2011, letter for five
reasons, including but not limited to White’s failure to provide either his BP-9 Remedy request
or the Warden’s response thereto, and his non-compliance with the BOP’s specific filing
requirements relating to attachments. See “Rejection Notice,” id., p. 18. However, the MARO
again informed White could simply re-submit his appeal in the proper form “within ten days of
this Rejection Notice.” Id, [Reason No. 5].
On that same date, the MARO also rejected another BP-10 Appeal which White had filed,
which the MARO identified as “Remedy No. 620551-R2,” the subject of which was “TransferOther.” Id., p. 19. The MARO stated that White must first file a BP-9 remedy request with the
Warden, and further noted in the “Remarks” section that there was no record at the institutional
level of White having filed a BP-9 Remedy Request seeking a transfer. Id. Still, White did not
re-submit this BP-10 appeal as the MARO had suggested, but instead filed a BP-11 Appeal to
the BOP Central Office on February 13, 2011. Id., pp. 3-4. White filed the instant § 2241
petition on April 7, 2011.
White alleges that he has done all that he is required to do to administratively exhaust his
claims. He argues that because Warden Berkebile has interfered with and/or thwarted his
exhaustion efforts, the Court should treat his claims challenging his custody classification and
transfer to USP-Big Sandy as being fully exhausted and ripe for consideration. The Court
disagrees with White’s assessment.
Although 28 U.S.C. § 2241 contains no statutory exhaustion requirement, federal courts
consistently require federal prisoners to fully exhaust the available administrative remedies
within the BOP before filing a petition seeking habeas corpus relief pursuant to § 2241. Fazzini
v. Northeast Ohio Corr. Center, 473 F.3d 229, 231 (6th Cir. 2006); Little v. Hopkins, 638 F.2d
953, 953-954 (6th Cir. 1981) (per curiam). See also Kendrick v. Carlson, 995 F.2d 1440, 1447
(8th Cir. 1993); Gambino v. Morris, 134 F.3d 156, 171 (3d Cir.1998).
Exhaustion promotes a number of desirable goals, including filtering out frivolous claims,
giving the agency the opportunity to review its conclusions short of litigation, and developing
a full and complete factual record which allows a district court to review the agency’s final
action. Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988); Brice v. Day, 604 F.2d 664
(10th Cir. 1979), cert. denied, 444 U.S. 1086 (1980). “Proper exhaustion often results in the
creation of an administrative record that is helpful to the court.” Barney v. Correctional Medical
Services, Inc., 08-CV-00694, 2009 WL 3711612, *12 (W.D. Mich. Nov. 3, 2009).
The USP-Big Sandy Administrative Remedy Coordinator notified White on November
1, 2010, that a response to his BP-9 Remedy Request (No. 613191-F1) was not due until
November 18, 2010. Because White believed that the Administrative Remedy Coordinator
should have treated his BP-9 Remedy Request as having been filed on October 8, 2010, instead
of October 29, 2010, (the date reflected in the November 1, 2010, Receipt), he simply ignored
the November 1, 2010, time-extension; unilaterally (and improperly) treated the Warden’s failure
to respond to his BP-9 Remedy request by November 2, 2010, as an “acceptance” of his BP-9
Remedy Request; and prematurely submitted his BP-10 Appeal to the MARO on November 2,
2010, and then again on December 22, 2010.
The Supreme Court has held that in order to satisfy the requirement that administrative
remedies be exhausted prior to filing suit, those remedies must be exhausted properly and within
the time frames required by the remedy process. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)
(“Proper exhaustion demands compliance with an agency's deadlines and other critical
procedural rules because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.”).
Under 28 C.F.R. § 542.18, Warden Berkebile was clearly authorized to extend his
original November 18, 2010, response deadline to December 8, 2010, so White’s submission of
a BP-10 appeal to the MARO on November 2, 2010, was premature and improper. White was
not free to disregard the BOP’s established procedures, deadlines, and authorized response
extensions in order to create his own personal time-table for filing appeals. While it is unclear
why Warden Berkebile did not issue his Response until December 30, 2010, the resulting
twenty-two day delay is irrelevant and moot. The MARO informed White on both January 14,
2011, and February 3, 2011, that he could remedy his defective and premature appeals by simply
re-submitting his BP-10 appeal and attaching the Warden’s response, which White had received
by both of those dates.
But White refused to do that. Instead, he wrote two letters to the MARO officials,
arguing that they had erred, blaming the Warden for the fact that he filed his appeals
prematurely, and instructing the MARO about its responsibilities, and then filed a premature BP11 Appeal to the BOP Central Office on February 13, 2011. Because White prematurely filed
his BP-10 appeal on November 2, 2010, and again on December 22, 2010, prior to the Warden
responding to his BP-9 Remedy Request, and because he refused to remedy those errors by
simply resubmitting his BP-10 appeal and attaching the Warden’s December 30, 2010, response,
White has not obtained a response from the MARO and the BOP Central Office. Accordingly,
he has not properly exhausted the claims in Remedy No. 613191-F15 according to the BOP’s
procedures, and his § 2241 petition is therefore premature.
White must either complete the exhaustion process he started in October 2010, or begin
the process from scratch as to his custody classification challenge, his request for a transfer from
USP-Big Sandy, and his concerns about potential exposure to gang violence. If followed
properly, the entire administrative remedy process takes approximately ninety days. White’s
Counselor stated that his current management variable would remain in effect until August 11,
2011, which is only ninety days from now. Even if the BOP extended the response time at all
levels, the process would most likely take no more than one hundred and sixty days.
White will not be prejudiced by being required to properly exhaust, as he could have
easily and expeditiously remedied his defective BP-10 appeal months ago by simply resubmitting
it and attaching the Warden’s denial of his BP-9 remedy request, which would have put him on
the right administrative track. Further, according to the BOP’s website, www.bop.gov, White’s
actual or projected release date is not until January 5, 2038, over twenty-six years from now.
White thus has ample time in which to complete the entire BOP administrative remedy process,
from start to finish, as to all of his security classification and transfer challenges.
Based on the MARO’s other February 3, 2011, “Rejection Notice,” it appears that
White also failed to administratively exhaust his request seeking a transfer, which he attempted to
set forth in Remedy No. 620551-R2. See Petition, [R 2-2, p. 19].
Even if White fully had completed the administrative exhaustion process and then sought
judicial review, his claims might still fail on the merits. First, White incorrectly alleged that
USP-Big Sandy is a higher security level federal prison than USP-Hazelton. According to the
“Facility Locator” feature of the BOP’s website, www.bop.gov, USP- Hazelton, like USP-Big
Sandy, is also a “high security” institution that houses male inmates.
Second, if White seeks a transfer from USP-Big Sandy because of alleged potential gang
violence, he must do so in a separate civil action filed under 28 U.S.C. § 1331, pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
either pay the $350.00 filing fee or seek pauper status. White cannot seek relief from the
conditions of his confinement in a § 2241 petition. See Martin v. Overton, 391 F.3d 710, 714
(6th Cir. 2004); Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir. 2004).
Third, regardless of whether White files a Bivens civil rights action or a § 2241 petition,
it is well-settled that prison classifications, assignments, and transfers are functions wholly
within the discretion of the BOP. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983). Federal
prisoners have neither a due process liberty interest in their classification while incarcerated, see
Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976), nor a liberty interest in remaining free from
discretionary transfers to less agreeable prisons, Meachum, 427 U.S. 215, 225 (1976), or in being
housed in a particular institution or a particular part of an institution. Montanye v. Haymes, 427
U.S. 236, 242 (1976).
Thus, White does not appear to assert a valid claim under either the Fifth Amendment
Due Process Clause or the Eighth Amendment’s prohibition against cruel and unusual
punishment. See Mader v. Sanders, 67 F. App’x 869, 871 (6th Cir. 2003) (holding that because
Mader had no due process liberty interest in his placement and classification while incarcerated,
neither his due process nor equal protection rights were violated by BOP’s refusal to transfer him
to another facility with other inmates that had the same custody classification).
Despite these perceived deficiencies, White’s § 2241 petition will be dismissed without
prejudice to his properly and timely submitting his claims to the BOP through the
administrative remedy process, 28 C.F.R. § § 542.10- 542.19.
Accordingly, IT IS ORDERED as follows:
Petitioner Karl Alan White’s § 2241 petition, [R. 2] is DENIED;
This action is DISMISSED WITHOUT PREJUDICE to White asserting his
claims through the Bureau of Prisons administrative remedy procedures, 28 C.F.R. § 542. 13-19,
and filing a new § 2241 petition if his claims are adversely decided; and
Judgment shall be entered contemporaneously with this Memorandum Opinion
and Order in favor of the respondent.
This May 16, 2011.
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