Twyman v. Walton

Filing 9

ORDER granting 7 Motion to Dismiss and Dismissing Petition for Writ of Habeas Corpus. Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LORAN TWYMAN,
Case Number: 2:11-CV-10010

Petitioner,

HONORABLE NANCY G. EDMUNDS

v.
J. S. WALTON,
Respondent.
/

ORDER GRANTING RESPONDENT’S MOTION TO DISMISS
AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE
The petitioner, Loran Twyman, a federal inmate incarcerated at the Federal
Correctional Institution in Milan, Michigan (FCI-Milan) has filed a pro se habeas corpus
petition pursuant to 28 U.S.C. § 2241. The petitioner claims that prison officials have
retaliated against him for filing a complaint of staff misconduct by filing false misconduct
charges against him. Respondent has filed a Motion to Dismiss arguing that Petitioner’s
claim of retaliation is not cognizable on habeas review and because Petitioner has not
exhausted his administrative remedies. Because Petitioner has not exhausted his
administrative remedies, the Court shall dismiss the petition without prejudice.
I.
Twyman was convicted of distribution of cocaine and cocaine base in violation of
21 U.S.C. § 841(a)(1). On April 7, 2003, he was sentenced in the United States District

Court for the Northern District of West Virginia to a 172-month term of imprisonment
and three years’ supervised release. His sentence was reduced to a 136-month term of
imprisonment on August 19, 2009, pursuant to 18 U.S.C. § 3582(c)(2).
On August 17, 2010, while incarcerated at the Federal Prison Camp in Beckley,
West Virginia, an incident report was filed charging Twyman with assaulting a
correctional counselor, J. Grimes. The incident alleged that, while walking past Grimes,
Twyman lowered his shoulder and shoved himself into Grimes. The Unit Discipline
Committee referred the case to the Discipline Hearing Officer (DHO). Following a
hearing, the DHO found Twyman guilty of assaulting another person (minor assault).
Sanctions imposed included a 15-day period of disciplinary segregation and the loss of 27
days good conduct time. Twyman subsequently was transferred to the Federal
Correctional Institution in Milan, Michigan.
II.
Twyman claims that he, rather than corrections counselor Grimes, was the victim
of an assault. He claims that Grimes assaulted him and then filed a false incident report
against Twyman in retaliation for a report Twyman made of staff misconduct while
incarcerated at FCI-Morgantown. Twyman alleges that, as a result of the disciplinary
hearing, he lost earned good-conduct time and was denied participation in the Residential
Drug Abuse Program and, consequently, denied the early release benefit.
Respondent argues that Twyman’s claim is not properly filed under 28 U.S.C. §
2241 because Twyman is not challenging the fact or duration of his custody. He claims
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that the retaliation claim should be raised in a civil rights action under Bivens v. Six
Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Sixth Circuit
Court of Appeals has not yet decided whether a retaliation claim is cognizable under §
2241. See Antonelli v. Rios, Civ. No. 06-283-GFVT, 2009 WL 790171, *5 n.1 (E.D. Ky.
March 24, 2009) (assuming for purposes of analysis that a retaliation claim is cognizable
under § 2241, but recognizing a substantial question remains as to whether such a claim is
cognizable). See also Stiger v. Warden, 389 F. App’x 337, 339 (5th Cir. 2010)
(addressing claim filed in § 2241 petition that disciplinary charges resulted from
retaliation for court motion filed by petitioner); Speight v. Minor, 245 F. App’x 213, 215
(3d Cir. 2007) (holding that “evidence of retaliatory motive on the part of a charging
officer and a disciplinary hearing officer might be relevant to the question of whether a
particular disciplinary adjudication violated due process pursuant to § 2241”). Because in
this case, the claim of retaliation is relevant to the misconduct finding and the resulting
loss of good-time credit, Twyman’s retaliation claim implicates the length of his
confinement. Therefore, the Court finds that it is cognizable under § 2241.
Nevertheless, the petition must be dismissed because Twyman has not exhausted
his administrative remedies. A federal habeas corpus petitioner must exhaust
administrative remedies before seeking habeas corpus relief pursuant to 28 U.S.C. § 2241.
Little v. Hopkins, 638 F.2d 953, 954 (6th Cir. 1981). The exhaustion requirement allows
“the Bureau of Prisons . . . the opportunity to consider the application of its policy to [a
prisoner’s] claim before the matter is litigated in the federal courts.” Urbina v. Thoms,
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270 F3d 292, 295 n.1 (6th Cir. 2001) (internal quotation and citation omitted). The
petitioner bears the burden of establishing exhaustion. Prather v. Rees, 822 F.2d 1418,
1420, n.3 (6th Cir. 1987).
Twyman has not appealed the result of the disciplinary hearing. An administrative
remedy is available for him to challenge the decision under 28 C.F.R. § 542.10-542.16.
See Alton v. Bogan, 1995 WL 364184 (6th Cir. June 16, 1995). A prisoner may submit a
complaint to institutional staff. If the problem is not resolved, 28 C.F.R. § 542.13(a) &
(b) allows a prisoner to file a formal request for administrative remedy with the warden of
the prison. Thereafter, a prisoner may file an appeal to the Regional Director and General
Counsel in the central office. 28 C.F.R. § 542.14.
While a formal administrative remedy request to the Warden generally must be
filed within 20 days from the date of the event grieved, the time limit may be extended if
the prisoner demonstrates a “valid reason for delay.” Id. “If a habeas corpus court were
to allow a prisoner to simply wait until the time prescribed by the regulations for filing his
appeal has expired and then file a petition for a writ of habeas corpus which a habeas
corpus court would consider, . . . the doctrine of exhaustion of administrative remedies
would be circumvented.” Marchesani v. U.S. Parole Comm’n, 1991 WL 153131, *2 (6th
Cir. Aug. 12, 1991). If a prisoner is unable to obtain an administrative remedy because of
his failure to appeal in a timely manner, then the petitioner has procedurally defaulted his
habeas corpus claim. See Engle v. United States, 26 Fed.Appx. 394, 396 (6th Cir. 2001).
To excuse the procedural default, Twyman would need to show cause and prejudice for
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the default. Id. Thus, Twyman should attempt to exhaust his administrative remedies
because the Warden may, in his discretion, allow Twyman to file a late appeal and
address the merits of his claims. See 28 C.F.R. §542.14. If the Warden allows the late
appeal and Twyman exhausts his administrative remedies in accordance with the relevant
regulations, he will avoid application of procedural default’s cause and prejudice standard
if he returns to federal court.
In response to the Motion to Dismiss, Twyman asks the Court to stay the habeas
proceedings. A federal district court may stay a habeas petition to allow a petitioner to
properly exhaust his claims and then return to federal court on his perfected petition. See
Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is available only in
“limited circumstances” such as when the one-year statute of limitations applicable to
federal habeas actions poses a concern, and when the petitioner demonstrates “good
cause” for the failure to exhaust before proceeding in federal court and the unexhausted
claims are not “plainly meritless.” Id. at 277. In this case, the timeliness of a future
petition will not be jeopardized if the petition is dismissed. Additionally, Twyman has
failed to show good cause for failing to exhaust his administrative remedies. Therefore,
the Court will dismiss the petition without prejudice.
III.
IT IS ORDERED that Respondent’s Motion to Dismiss Petition for Writ of
Habeas Corpus is GRANTED. The petition is DISMISSED WITHOUT
PREJUDICE.
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s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: August 31, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 31, 2011, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

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