CORBIN v. SHARTLE

Filing 2

OPINION. Signed by Judge Robert B. Kugler on 4/11/2013. (bdk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEVIN CORBIN,
Petitioner,
v.
WARDEN J.T. SHARTLE,
Respondent.

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Civil Action No. 13-2142 (RBK)
OPINION

APPEARANCES:
Petitioner pro se
Kevin Corbin
F.C.I. Fairton
P.O. Box 420
Fairton, NJ 08320
KUGLER, District Judge
Petitioner Kevin Corbin, a prisoner currently confined at
the Federal Correctional Institution at Fairton, New Jersey, has
submitted a petition for writ of habeas corpus, pursuant to 28
U.S.C. § 2241,1 challenging the results of a prison disciplinary
proceeding and an application to proceed in forma pauperis

1

United States Code Title 28, Section 2241, provides in
pertinent part:
(a) Writs of habeas corpus may be granted by
the ... district courts ... within their
respective jurisdictions ...
(c) The writ of habeas corpus shall not
extend to a prisoner unless- ... (3) He is in
custody in violation of the Constitution or
laws or treaties of the United States ... .

pursuant to 28 U.S.c. § 1915(a).

The sole respondent is Warden

J.T. Shartle.
Based on his affidavit of indigence, the Court will grant
Petitioner’s application to proceed in forma pauperis.

For the

reasons set forth below, the Petition will be dismissed without
prejudice for failure to exhaust administrative remedies.
I.

BACKGROUND

Petitioner Kevin Corbin is a federal prisoner confined at
the Federal Correctional Institution at Fairton, New Jersey,
where he is serving a 60-month sentence for conspiracy to
distribute more than 100 kilos of marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and 846.

See United States v. Corbin,

Criminal No. 09-0212 (E.D. Ark.).

According to the U.S. Bureau

of Prisons Inmate Locator, Petitioner’s anticipated release date
is December 24, 2013.
Petitioner alleges that on March 3, 2013, Correctional
Officer Vanderlman conducted a search of the 8-man cell in which
Petitioner was then housed with six other inmates, where he found
a metal object sharpened to a point, with a handle and lanyard, a
“shank,” in a metal hatch above the toilet in the cell.

All

seven inmates housed in the cell were issued identical
disciplinary reports, in which each was charged with a Code 108
violation, “Possession of a Hazardous Tool.”

2

Petitioner alleges that on or about March 9, 2013, Mr.
Ebinger came to his cell and conducted a Unit Disciplinary
Committee hearing, advising Petitioner that he was recommending
that the matter be referred to the Disciplinary Hearing Officer
(“DHO”) for final disposition.

Petitioner alleges that he

requested that two inmates be called as witnesses and that he be
provided with a copy of the search log to verify that the cell
had been searched the day before the charged incident.
Petitioner alleges that he appeared before the DHO on March
14, 2013.

He asserts that neither requested witness was brought

to the hearing to testify and that he was not provided with the
documents he had requested.

Petitioner asserts that he denied

any knowledge of the weapon found in the search and that he had
no tools to secret the weapon in the hatch where it had been
found.

Petitioner asserts that the DHO found him guilty of the

charged infraction, and imposed a loss of 40 days Good Conduct
Time, as well as extending his possible pre-release transfer to a
Community Corrections Center for the same 40-day period.
Petitioner asserts that, as of March 29, 2013, he has not
received a written report of the DHO’s findings and disposition.
Nevertheless, he asserts that he filed an appeal to the Northeast
Regional Office, on an unspecified date.

Petitioner asserts

that, as of March 29, 2013, he has not received a response to his
administrative appeal.

3

On or about April 1, 2013, Petitioner filed this § 2241
Petition challenging the results of the disciplinary hearing.
Petitioner asserts the following grounds for relief:

(1) that he

was deprived of substantive and procedural due process in
connection with the disciplinary proceeding, in that (a) the
advance written notice was confusing because the officer who
conducted the search was not the officer who wrote the incident
report, (b) Petitioner was denied his right to call witnesses and
obtain documentary evidence, (c) the decision was not supported
by adequate evidence, because many prisoners had access to the
cell and Petitioner did not have the tools necessary to remove
the bolted metal cover from the hatch where the shank was found,
(d) he has not received a timely written decision, (e) the
sanctions are disproportionate to the offense, (f) the decision
to find all seven inhabitants of the cell guilty of the
infraction was arbitrary and capricious, (Memorandum of Law [1]
at 3-); (2) that Code 108 is void for vagueness; and (3) that he
was denied due process when Respondent failed timely to review
him for pre-release transfer to a Community Corrections Center in
violation of the Second Chance Act, Pub. L. No. 110-199, 18
U.S.?C. § 3624(c) (as amended, effective Apr. 9, 2008).

This

last allegation appears unrelated to the disciplinary proceeding.
Petitioner seeks a declaration that the Code 108 violation
is void for vagueness and asks this Court to reinstate his 40

4

days lost Good Conduct Time and to reinstate his pre-release
transfer date back to May 2013.
II.

LEGAL STANDARD

“Habeas corpus petitions must meet heightened pleading
requirements.”

McFarland v. Scott, 512 U.S. 849, 856 (1994).

A

petition must “specify all the grounds for relief” and must set
forth “facts supporting each of the grounds thus specified.”

See

Rule 2(c) of the Rules Governing § 2254 Cases in the U.S.
District Courts (amended Dec. 1, 2004) (“Habeas Rules”), made
applicable to § 2241 petitions through Rule 1(b) of the Habeas
Rules.
Nevertheless, a pro se pleading is held to less stringent
standards than more formal pleadings drafted by lawyers.

Estelle

v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972).

A pro se habeas petition and any supporting

submissions must be construed liberally and with a measure of
tolerance.

See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);

Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
A court presented with a petition for writ of habeas corpus
“shall forthwith award the writ or issue an order directing the
respondent to show cause why the writ should not be granted,
unless it appears from the application that the applicant or

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person confined is not entitled thereto.”

28 U.S.C. § 2243.

Thus, “Federal courts are authorized to dismiss summarily any
habeas petition that appears legally insufficient on its face.”
McFarland, 512 U.S. at 856; see also Lonchar v. Thomas, 517 U.S.
314, 320 (1996); United States v. Thomas, 221 F.3d 430, 437 (3d
Cir. 2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert.
denied, 490 U.S. 1025.
III.

ANALYSIS

Convicted and sentenced prisoners retain the protections of
the Due Process Clause of the Fifth and Fourteenth Amendments
that the government may not deprive them of life, liberty, or
property without due process of law.

See Wolff v. McDonnell, 418

U.S. 539, 556 (1974); Haines v. Kerner, 404 U.S. 519 (1972);
Wilwording v. Swenson, 404 U.S. 249 (1971).

Such protections

are, however, “subject to restrictions imposed by the nature of
the regime to which [prisoners] have been lawfully committed.
...

In sum, there must be mutual accommodation between

institutional needs and objectives and the provisions of the
Constitution that are of general application.”

Wolff, 418 U.S.

at 556.
A liberty interest protected by the Due Process Clause may
arise from either of two sources:
or from state or federal law.

the Due Process Clause itself

See Hewitt v. Helms, 459 U.S. 460,

6

466 (1983); Asquith v. Department of Corrections, 186 F.3d 407,
409 (3d Cir. 1999).
Where the government has created a right to good time
credits, and has recognized that a prisoner’s misconduct
authorizes deprivation of the right to good time credits as a
sanction,2 “the prisoner’s interest has real substance and is
sufficiently embraced within Fourteenth Amendment ‘liberty’ to
entitle him to those minimum procedures appropriate under the
circumstances and required by the Due Process Clause to insure
that the state-created right is not arbitrarily abrogated.”
Wolff, 418 U.S. at 557.
Thus, a prisoner is entitled to an impartial disciplinary
tribunal, Wolff, 418 U.S. at 570-71, excluding “only those
[prison] officials who have a direct personal or otherwise
substantial involvement ... in the circumstances underlying the
charge from sitting on the disciplinary body,” Meyers v.
Alldredge, 492 F.2d 296, 306 (3d Cir. 1974).

In addition, to

comply with the requirements of the Due Process Clause, prison
officials also must provide a prisoner facing loss of good time
credits with: (1) a written notice of the charges at least 24

2

The Constitution itself does not guarantee good time
credits for satisfactory behavior in prison. Congress, however,
has provided that federal prisoners serving a term of
imprisonment for more than one year, other than a term of
imprisonment for the duration of the prisoner’s life, may receive
credit toward the service of their sentence based upon their
conduct. See 18 U.S.C. § 3624(b); 28 C.F.R. § 523.20.
7

hours prior to any hearing, (2) an opportunity to call witnesses
and present documentary evidence in his defense when permitting
him to do so will not be unduly hazardous to institutional safety
or correctional goals,3 and (3) a written statement by the
factfinders as to the evidence relied on and the reasons for the
disciplinary action.

Wolff, 418 U.S. at 564-66.

Due process

also requires that findings of a prison disciplinary official,
which result in the loss of good time credits, must be supported
by “some evidence” in the record.

Superintendent, Massachusetts

Correctional Institution at Wolpole v. Hill, 472 U.S. 445, 454-56
(1985).4

Finally, the “harmless error” rule applies to federal

court review of prison disciplinary actions.

See Elkin v.

Fauver, 969 F.2d 48 (3d Cir.), cert. denied, 506 U.S. 977 (1992);

3

Prison officials must justify their refusal to call
witnesses requested by the prisoner, but such justification need
not be presented at the time of the hearing. To the contrary,
the explanation for refusal to call witnesses requested by the
prisoner may be provided through court testimony if the
deprivation of a liberty interest is challenged because of that
claimed defect in the hearing. See Ponte v. Real, 471 U.S. 491
(1985). “{P]rison officials may deny a prisoner’s request to
call a witness in order to further prison security and
correctional goals. ... [T]he burden of persuasion as to the
existence and sufficiency of such institutional concerns is borne
by the prison officials, not by the prisoners.” Grandison v.
Cuyler, 774 F.2d 598, 604 (3d Cir. 1985).
4

The due process requirements of Wolff, as they relate to
federal prisoners, have been codified in the Code of Federal
Regulations at 28 C.F.R. § 541.1 et seq. See, e.g., 28 C.F.R.
§ 541.5 (Discipline Process); 28 C.F.R. § 541.7 (Unit Discipline
Committee (UDC) review of the incident report); 28 C.F.R. § 541.8
(Discipline Hearing Officer (DHO) hearing).
8

Powell v. Coughlin, 953 F.2d 744 (2d Cir. 1991); Pressley v.
Blaine, 544 F.Supp.2d 446, 457 (W.D. Pa. 2008).
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, a federal prisoner ordinarily may not bring a
petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging the execution of his sentence, including challenges
to disciplinary proceedings, until he has exhausted all available
administrative remedies.

See, e.g., Callwood v. Enos, 230 F.3d

627, 634 (3d Cir. 2000); Stanko v. Obama, 422 Fed.Appx. 146, 148
(3d Cir. April 7, 2011).

The exhaustion doctrine promotes a

number of goals:
(1) allowing the appropriate agency to develop a
factual record and apply its expertise facilitates
judicial review; (2) permitting agencies to grant the
relief requested conserves judicial resources; and
(3) providing agencies the opportunity to correct their
own errors fosters administrative autonomy.
Goldberg v. Beeler, 82 F.Supp.2d 302, 309 (D.N.J. 1999), aff’d,
248 F.3d 1130 (3d Cir. 2000).

See also Moscato v. Federal Bureau

of Prisons, 98 F.3d 757, 761 (3d Cir. 1996).

Nevertheless,

exhaustion of administrative remedies is not required where
exhaustion would not promote these goals.

See, e.g., Gambino v.

Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required
where petitioner demonstrates futility); Lyons v. U.S. Marshals,
840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where
it “would be futile, if the actions of the agency clearly and
unambiguously violate statutory or constitutional rights, or if
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the administrative procedure is clearly shown to be inadequate to
prevent irreparable harm”); Carling v. Peters, 2000 WL 1022959,
*2 (E.D. Pa. 2000) (exhaustion not required where delay would
subject petitioner to “irreparable injury”).
In general, the BOP Administrative Remedy Program is a
multi-tier process that is available to inmates confined in
institutions operated by the BOP for “review of an issue which
relates to any aspect of their confinement.”5
§ 542.10.

28 C.F.R.

An inmate must initially attempt to informally resolve

the issue with institutional staff.

28 C.F.R. § 542.13(a).

If

informal resolution fails or is waived, an inmate may submit a
BP-9 Request to “the institution staff member designated to
receive such Requests (ordinarily a correctional counsel)” within
20 days of the date on which the basis for the Request occurred,
or within any extension permitted.

28 C.F.R. § 542.14.

An

inmate who is dissatisfied with the Warden’s response to his BP-9
Request may submit a BP-10 Appeal to the Regional Director of the
BOP within 20 days of the date the Warden signed the response.
28 C.F.R. § 542.15(a).

The inmate may appeal to the BOP’s

General Counsel on a BP-11 form within 30 days of the day the

5

“This rule does not require the inmate to file under the
Administrative Remedy Program before filing under statutorilymandated procedures for tort claims (see 28 CFR 543, subpart C),
Inmate Accident Compensation claims(28 CFR 301), and Freedom of
Information Act or Privacy Act requests (28 CFR 513, subpart
D),[ or other statutorily-mandated administrative procedures].”
67 F.R. 50804-01, 2002 WL 1789480 (August 6, 2002).
10

Regional Director signed the response.6

Id.

Appeal to the

General Counsel is the final administrative appeal.

Id.

If

responses are not received by the inmate within the time allotted
for reply, “the inmate may consider the absence of a response to
be a denial at that level.”

28 C.F.R. § 542.18.

Disciplinary Hearing Officer (DHO) appeals are submitted
directly to the Regional Director within 20 days.
§§ 542.14(d)(2), 542.15.

See 28 C.F.R.

Therefore, DHO appeals involve fewer

levels of review in order to be considered “exhausted.”
Here, Petitioner filed this Petition less than three weeks
after the challenged disciplinary hearing, admitting that he has
not exhausted his administrative remedies.

He asserts that

“Because Corbin is eligible for transfer to the RRC/CCC in May
2013, the futility doctrine applies in this action, as any
exhaustion would result in permanent injury of not being
transferred in time.”

(Memorandum of Law at 2,

¶ 6.)

This

Court is not persuaded.
The challenges to Petitioner’s disciplinary hearing are of
precisely the type that would benefit from administrative review
which would permit development of a full factual record and
application of the Bureau of Prisons’ considerable expertise in
prison discipline matters, all of which would benefit later

6

Response times for each level of review are set forth in
28 C.F.R. § 542.18.
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judicial review.

The injury of which Petitioner complains, delay

in transfer to pre-release placement in a Community Corrections
Center, is not so egregious as to justify excusing the exhaustion
requirement.

Certainly, there is time to exhaust Petitioner’s

administrative remedies with respect to his loss of 40 days Good
Conduct Time and actual release date, presently projected to be
December 24, 2013.

Moreover, Petitioner’s assertion of futility

pre-supposes that he will not be successful with respect to the
administrative review, a leap this Court is not prepared to make.
Finally, Petitioner makes no attempt to explain his failure to
exhaust administrative remedies with respect to his challenge to
the alleged delay in the initial review for pre-release
placement.

Nor does he assert any facts that would permit this

Court to determine that he suffered any actionable injury as a
result of the alleged delay.
For all the foregoing reasons, the Petition will be
dismissed without prejudice for failure to exhaust administrative
remedies.

See, e.g., Gehl v. Zickefoose, Civil No. 10-4804, 2012

WL 4120481, *3-*4 (Sept. 18, 2012).
IV.

CONCLUSION

For the reasons set forth above, the Petition will be
dismissed without prejudice.

An appropriate order follows.
S/Robert B. Kugler
Robert B. Kugler
United States District Judge

Dated: April 11, 2013
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