JONES v. HOLLINGSWORTH

Filing 11

OPINION. Signed by Judge Renee Marie Bumb on 1/21/2016. (TH, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

Shawn Dwayne Jones,
Petitioner,
v.
Warden Jordan Hollingsworth,
FCI Fort Dix,
Respondent.

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Civil Action No. 15-2401(RMB)

OPINION

BUMB, District Judge
I.

BACKGROUND
Petitioner, incarcerated in FCI-Fort Dix, in New Jersey

when he filed the present petition for a writ of habeas corpus
under 28 U.S.C. § 2241, challenges his loss of good conduct time
as a result of his disciplinary hearing held at a FCI-Jesup, in
Jesup, Georgia1 on August 7, 2014. (Pet., ECF No. 1 at 11.)
Petitioner asserts that he exhausted his administrative
remedies. (Id. at 11-13.) He asserts one ground for habeas
relief, the Disciplinary Hearing Officer (“DHO”) did not have

1

FCI-Jesup is “a medium security federal correctional
institution with an adjacent low security satellite prison and a
minimum security satellite camp.” available at
http://www.bop.gov/locations/institutions/jes/

any evidence to support a finding of guilt for violation of Code
225, Stalking. (Pet., ¶13, ECF No. 1 at 6.)2
Respondent filed an answer to the petition. (Respondent’s
Answer to the Petition for a Writ of Habeas Corpus, ECF No. 4.)
Respondent contends the petition should be dismissed because
Petitioner failed to exhaust his administrative remedies. (ECF
No. 4 at 16-19.) Alternatively, Respondent contends the petition
should be dismissed because Petitioner received all of the due
process to which he was entitled, and Code 225 is not vague.
(ECF No. 4 at 20-24.)
Petitioner filed a reply to the answer. (Def’s Mem. of Law
and Brief in Supp. of Pet. for a Writ of Habeas Corpus Under 28
U.S.C. § 2241 (“Reply”), ECF No. 7.) He asserted that a prisoner
is not held to strict compliance with the exhaustion requirement
if prison officials directly caused or contributed to the

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Although not specifically raised as ground for relief in his
habeas petition, Petitioner cites a New Jersey Supreme Court
case which held a New Jersey statute prohibiting “bias
harassment” was void for vagueness because the statute relied on
the victim’s perception of bias rather than the defendant’s
intent. (Pet., ECF No. 1 at 18 (citing State v. Pomianek, 221
N.J. 66 (2015)). Pomianek is inapposite to the case at bar
because it involved a state crime rather than a prison rule, and
the Due Process Clause requires greater specificity in ordinary
criminal sanctions than it does in violations of prison rules.
Meyers v. Aldredge, 492 F.2d 296, 310 (3d Cir. 1974). The case
is also inapposite because the New Jersey statute was void
because it relied on the victim’s perception that the defendant
was motivated by bias, not because it relied on the victim’s
perception that she was being stalked, as is the case here.
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prisoner’s procedural default on a grievance.3 (Id. at 1.) He
attached copies of his administrative remedy requests. (Id.)
II.

DISCUSSION
A.

The Disciplinary Hearing

On July 7, 2014, at FCI-Jesup, an Incident Report was
issued charging Petitioner with stalking4 in violation of Code
225. (Declaration of Tara Moran (“Moran Decl.,” Ex. 4, ECF No.
4-1 at 20-22). “J. Green,” who was Petitioner’s counselor, made
a statement for the Incident Report. (ECF No. 4-1 at 21.) In
summary, she complained that Petitioner began paying her too
much attention in June 2013, by opening doors for her,
complimenting her, and standing by her office staring at her.
(Id.) After she had a second conversation with Petitioner about
how this made her uncomfortable, and that other staff members
had complained as well, he ceased the behavior until around July
7, 2014. (Id.) He began opening doors for her again, guarding
her office door, and inappropriately staring. (Id.)
The incident report, dated July 7, 2014, was delivered to
Petitioner on July 10, 2014, and he denied the charges. (Id.)
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Petitioner did not explain how prison officials directly caused
or contributed to his procedural default.
4

Stalking is defined as “Stalking another person through
repeated behavior which harasses, alarms, or annoys the person,
after having been previously warned to stop such conduct.” BOP
Program Statement, 5270.09, Table 1, Code 225 (effective Aug. 1,
2011). Available at www.bop.gov/policy/progstat/5270_009.pdf
3

The Unit Disciplinary Committee5 referred the incident report to
a DHO for a hearing on July 22, 2014. (ECF No. 4-1 at 22, 28.)
Petitioner requested a staff representative and witnesses to
appear at the hearing. (Id.)
The hearing was held before DHO Scott Schleder on August 7,
2014. (Moran Decl., Ex. 10, ECF No. 4-1 at 34-38.) Petitioner
appeared with a staff representative, and he submitted
documentary evidence of written memoranda by witnesses. (Id. at
35.) The DHO cited the following evidence in support of his
decision that Petitioner was guilty of Stalking under Code 225:
(1) Counselor Green’s statement in the Incident Report; (2)
memorandum by drug specialist K. Sapp; and (3) memorandum of
Secretary R. Poole. (Id. at 36.) The DHO Hearing Report was
delivered to Petitioner on October 16, 2014. (ECF No. 4-1 at
38.)
B.

Administrative Remedies

On September 29, 2014, Petitioner appealed the DHO’s
decision to the BOP Northeast Regional Office.6 (Moran Decl., Ex
2, ECF No. 4-1 at 10.) The appeal was rejected because
Petitioner had not attached a copy of the DHO report or

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The BOP regulations governing the Inmate Disciplinary Program
are found at 28 C.F.R. §§ 541.1-8.
6

Petitioner attached copies of his Administrative Remedy
Requests to his reply to Respondent’s answer. (Reply, ECF No. 7
at 4-7.)
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submitted the correct number of copies and continuation pages.
(Id.) Petitioner received a copy of the DHO report on October
16, 2014. (Moran Decl., Ex. 10, Part IX, ECF No. 4-1 at 38.) He
refiled his appeal with the Northeast Regional Office on or
about October 20, 2014. (Moran Decl. ¶6, Ex. 2, ECF No. 4-1 at
11.) The appeal was again rejected because Petitioner failed to
attach a copy of the DHO Report or submit the correct number of
copies. (Id.)
Petitioner refiled his appeal in the Northeast Regional
Office on November 18, 2014, but he still did not attach the DHO
Report or the correct number of copies. (Moran Decl., Ex. 2, ECF
No. 4-1 at 12.) He tried again on December 1, 2014. (Id. at 13.)
This time, it was rejected as untimely. (Id.)
Petitioner appealed the rejection to the Central Office.
(Moran Decl. ¶9, Ex. 2, ECF No. 4-1 at 15.) On January 28, 2015,
the Central Office rejected the appeal, concurring with the
reasons cited by the Regional Office, and also rejecting the
appeal as untimely. (Id.) The Central Office directed Petitioner
to “provide staff verification stating reason untimely
resubmission of Regional Appeal on December 1, 2014 was not your
fault.” (Id.) Petitioner appealed to the Regional Office on
February 23, 2015, but he failed to explain why the untimeliness
of his December 1, 2014 remedy request was not his fault.

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(Reply, ECF No. 7 at 5.) Therefore, the appeal was rejected as
untimely. (Moran Decl. ¶10, Ex. 2, ECF No. 4-1 at 16.)
C.

Exhaustion

Prior to filing a habeas petition under 28 U.S.C. § 2241, a
Petitioner is required to exhaust his administrative remedies.
See Vasquez v. Strada, 684 F.3d 431, 433 (3d Cir. 2012) (citing
Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.
1996)). “If a petitioner failed to exhaust his administrative
remedies due to a procedural default, and the default renders
the administrative process unavailable to him, review of his §
2241 claim is barred unless he can show cause and prejudice.”
Speight v. Minor, 245 F. App’x 213 (3d Cir. 2007) (per curiam)
(citing Moscato, 98 F.3d at 761). There is an exception to the
exhaustion requirement “where the issue presented involves only
statutory construction.” Id. at 434 (citing Bradshaw v. Carlson,
682 F.2d 1050, 1052 (3d Cir. 1981)).
Exhaustion is required in this case. The only ground for
relief stated in the habeas petition is that there is no
evidence supporting Petitioner’s guilt of the disciplinary
charge.
The BOP has an administrative remedy program for a prisoner
to appeal a DHO’s decision. 28 C.F.R. § 541.8(i). “DHO appeals
shall be submitted initially to the Regional Director for the
region where the inmate is currently located.” 28 C.F.R. §
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542.14(d)(2). An appeal may be rejected when it does not meet a
requirement of the remedy program. 28 C.F.R. § 542.17(a). The
prisoner must be given a reason for the rejection, and if the
defect is correctable, he shall be informed of a reasonable
amount of time in which to correct the defect and resubmit the
appeal. 28 C.F.R. § 542.17(b).
If an appeal is rejected and the prisoner is not given
notice of an opportunity to correct the defect and resubmit, the
inmate may appeal the rejection to the next appeal level. 28
C.F.R. § 542.17(c). The Coordinator at the next level may (1)
affirm the rejection (2) may direct that the submission be
accepted at the lower level (either upon the inmate's
resubmission or direct return to that lower level); or (3) may
accept the submission for filing. Id.
Appeals of the Regional Director’s response are made to the
General Counsel in the Central Office, within 30 days of when
the response was signed. 28 C.F.R. § 542.15(a). Time limits may
be extended when the inmate demonstrates a valid reason for
delay. Id. Appeal to the General Counsel is the final
administrative appeal. Id.
An inmate has 20 calendar days following the date on which
the basis for the administrative appeal occurred to begin the
administrative remedy procedure. 28 C.F.R. § 542.14(a), (d)(2).
Here, Petitioner received the DHO Report on October 16, 2014,
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and he had twenty days to file an appeal with the Regional
Office. He made two attempts to timely file, but he neglected to
attach a copy of the DHO Report, as required. He did not file a
proper request, with the DHO Report attached, until December 1,
2014.
Petitioner was given a final opportunity by the Central
Office, on January 28, 2015, to explain why it was not his fault
that he did not file a proper request, an appeal to the Regional
Office with the DHO report attached, until December 1, 2014.
Petitioner did not explain why his untimeliness was not his
fault. On February 23, 2015, his appeal was rejected as
untimely.
The BOP administrative remedy process is no longer
available to Petitioner because his requests were untimely. He
has procedurally defaulted his administrative appeals. See
Moscato, 98 F.3d at 760 (“failure to satisfy the procedural
rules of the Bureau's administrative process constitutes a
procedural default.”)
D.

The Merits

The requirements of due process are met, in a prison
disciplinary setting, if “some evidence supports the decision by
prison disciplinary board to revoke good-time credits.”)
Superintendent Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445,
455 (1985). Even if Petitioner’s claim was not procedurally
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barred, the Court holds that the record contains some evidence
supporting the DHO’s hearing decision, including Counselor
Green’s statement in the Incident Report; and memoranda from two
staff witnesses, K. Sapp and R. Poole. (Disciplinary Hearing
Officer Report, ECF No. 4-1 at 36.) Furthermore, the DHO wrote a
detailed decision explaining how he weighed all of the evidence
presented and why he credited the evidence cited in support of
his decision. (Id. at 36-37.)
III. CONCLUSION
Petitioner has not attempted to establish cause and
prejudice to excuse the default.7 He has not explained why he did
not attach a DHO Report to his appeal to the Regional Office
within twenty days of receiving the DHO Report on October 16,
2015. Therefore, in the accompanying Order filed herewith, the
Court will dismiss the habeas petition with prejudice because
the claim for relief is procedurally defaulted. Alternatively,
the Court will dismiss the claim on the merits because there is
some evidence supporting the DHO’s decision.

7

When Petitioner requested that the Court intervene on his
behalf in requesting additional time to respond to the
Administrative Remedy Rejection Notice of February 2, 2015, the
Court declined to do so and notified Petitioner that if his
failure to timely file an administrative remedy request
precluded him from exhausting his administrative remedies, his
course of action in this proceeding was to show cause and
prejudice for the procedural default. (ECF No. 9.)
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s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: January 21, 2016

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