Chen v. Warden

Filing 8

MEMORANDUM AND ORDER DISMISSING CASE: For the reasons set forth herein, it is hereby ORDERED that petitioners habeas corpus petitions, docketed as 12-CV-4405, 12-CV-4772, 12-CV-4908, 13-CV-221, and 13-CV-547, are DENIED in their entirety, and the pe titions are DISMISSED. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States , 369 U.S. 438, 44445 (1962). The Clerk of Court is directed to dismiss the petitions, enter judgment accordingly, send to petitioner a copy of this Memorandum and Order and the accompanying judgment, and close these cases. Ordered by Judge Roslynn R. Mauskopf on 7/1/2013. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOHN E. CHEN,
MEMORANDUM AND ORDER
12-CV-4405 (RRM)(LB)
12-CV-4772 (RRM)(LB)
12-CV-4908 (RRM)(LB)
13-CV-221 (RRM)(LB)
13-CV-547 (RRM)(LB)

Petitioner,
- against WARDEN, MDC BROOKLYN,
Respondent.
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ROSLYNN R. MAUSKOPF, United States District Judge.

Petitioner John E. Chen, a federal prisoner appearing pro se, has filed multiple petitions
seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. Initially, in 2012, petitioner filed six
petitions, docketed as 12-CV-4405, 12-CV-4657, 12-CV-4658, 12-CV-4659, 12-CV-4772, and
12-CV-4908. Because petitioner essentially made only three distinct claims – the reinstatement
of good time credit, inadequate medical treatment, and the opening of his legal mail – this Court
consolidated these six petitions into three, docketed as 12-CV-4405, 12-CV-4772, and 12-CV4908. (See Order dated Nov. 5, 2012, 12-CV-4908 (Doc. No. 5); Order dated Nov. 5, 2012, 12CV-4772 (Doc. No. 6).) Respondent filed an omnibus opposition to these petitions, (Ltr. Br.
filed Nov. 30, 2011, 12-CV-4472 (Doc. No. 7)) and petitioner filed a letter in reply. (Ltr. dated
Dec. 11, 2012, 12-CV-4472 (Doc. No. 10).).
Subsequently, in 2013, petitioner filed two additional habeas petitions alleging problems
with e-mail delivery, hot water, and the availability his unit’s inmate phone. (See Habeas Pet.,
13-CV-221 (Doc. No. 1); Habeas Pet., 13-CV-547 (Doc. No. 1).) Respondent filed an omnibus
opposition to these two new petitions on April 2, 2013. (Ltr. Br. filed Apr. 2, 2013, 13-CV-221
(Doc. No. 6).) Petitioner submitted a letter in reply reiterating his complaint regarding e-mails

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and conceding that at least one of his habeas petitions is moot. (Ltr. dated Apr. 12, 2013, 13CV-547 (Doc. No. 7).)
For the reasons set forth below, these petitions are dismissed.
DISCUSSION
I.

Mootness

On February 11, 2013, petitioner advised the Court that he was transferred from the
Brooklyn Metropolitan Detention Center (“MDC”) to Allenwood Penitentiary. (Pet. Ltr. filed
Feb. 11, 2013, 13-CV-221 (Doc. No. 5).) With the exception of his petition seeking
reinstatement of good time credit, all of petitioner’s requests seek injunctive relief to remedy
certain conditions of his confinement at the MDC. These requests are now moot. See Prins v.
Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (“It is settled in this Circuit that a transfer from a
prison facility moots an action for injunctive relief against the transferring facility.”); see also
Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (affirming dismissal of a prisoner’s
claims for kosher food and access to the prison library because he had been transferred to a
different facility).
Accordingly, because petitioner’s requests in petitions docketed as 12-CV-4772, 12-CV4908, 13-CV-221, and 13-CV-547are all moot, these claims are dismissed. 1
II.

Failure to Exhaust

Petitioner also requests reinstatement of good time credit in the petition docketed as 12CV-4405. Unlike petitioner’s other claims relating to the conditions of his confinement at the
MDC, this claim is not moot as a result of his transfer to a different facility because it relates to

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Briefly, these petitions seek the following relief: to order the MDC to provide his medication at 7:15 a.m. daily, to
order the MDC to stop opening his legal mail, to order the MDC to provide him with an “AIC Blood Test,” to order
the MDC to provide him with prescription eyeglasses, to order the MDC to provide hot water for showers, to order
the MDC staff to stop turning off the inmate phone in his unit, and to order the MDC to fix delays to his e-mail

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the duration of petitioner’s custody. Petitioner specifically alleges that on November 17, 2011,
he had a “verbal argument” with another inmate, and that after the other inmate struck petitioner
“on the face with a closed fist,” petitioner “grab[bed] him and struck him back with a closed
fist.” (Habeas Pet., 12-CV-4405 (Doc. No. 1) at 1.) After the incident, petitioner was the subject
of a disciplinary hearing at which he waived his right to a staff representative; acknowledged that
his due process rights were read to him and that he understood those rights; and confirmed that
he had no documentary evidence or witnesses to present. The hearing officer found, based on
video evidence and a written report of the incident from the reporting officer, that petitioner and
another inmate “had a verbal argument” that escalated into an exchange of blows with closed
fists; as punishment, petitioner lost 27 days of good time credit. (Discipline Hr’g Officer Rpt,
12-CV-4405 (Doc. No. 1).)
Petitioner submitted, as attachments to his habeas petition, records from the Bureau of
Prisons (“BOP”) computerized database relating to his appeal of the hearing officer’s decision.
(See Attachments to Habeas Pet., 12-CV-4405. (Doc. No. 1).) These records indicate that the
hearing officer’s report was delivered to petitioner on December 7, 2011, and that petitioner was
advised that he had twenty days to appeal. (Id.) They further show that petitioner failed to
timely appeal that decision: his appeal was not submitted until January 4, 2012, eight days after
the appeal deadline. (Id.) Petitioner has not provided any excuse for failing to submit his appeal
within the time allowed.2 The records also indicate that his subsequent appeals to the Regional
Office, on January 27, 2012, March 28, 2012, June 8, 2012, and June 21, 2012, as well as his
appeal to the Central Office on July 2, 2012, were all rejected based on his untimely filed first
appeal and therefore not considered on the merits.

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The records indicate that petitioner was provided an incorrect form for his appeal, but petitioner makes no
allegations as to why his appeal, even though made with the incorrect form, was not timely submitted. (Doc. No. 1.)

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Respondent argues that petitioner failed to properly exhaust this claim and that it must be
dismissed. (Ltr Br. dated Nov. 30, 2011, 12-CV-4472 (Doc. No. 7) at 3–4.) The Court agrees.
Generally, federal prisoners may not file petitions for a writ of habeas corpus under
§ 2241 without first exhausting all available administrative remedies. Carmona v. U.S. Bureau
of Prisons, 243 F.3d 629, 634 (2d Cir. 2001). The BOP has a three-tiered administrative remedy
system to “allow[] an inmate to seek formal review of an issue relating to any aspect of his/her
own confinement.” Macias v. Zenk, 495 F.3d 37, 42 (2d Cir. 2007) (quoting 28 C.F.R.
§ 542.10(a)). Administrative grievance procedures for federal inmates are set forth in 28 C.F.R.
§§ 542.10–19.
Here, although petitioner pursued administrative remedies at the Regional Office and
Central Office, the undisputed facts, taken from the BOP’s computerized database records that
petitioner himself attached to his habeas petition (Habeas Pet., 12-CV-4405 (Doc. No. 1)), reflect
that petitioner did not properly exhaust his administrative remedies because he filed his first
appeal eight days after the appeal deadline had past. See Woodford v. Ngo, 548 U.S. 81, 92
(2006) (“To . . . ‘protect the integrity’ of the federal exhaustion rule, we ask not only whether a
prisoner has exhausted his state remedies, but also whether he has properly exhausted those
remedies . . . .” (citing O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (emphasis in original)).
Indeed, “because [petitioner]’s submissions were all denied on timeliness grounds and the BOP
did not ‘address[ ] the issues on the merits,’ plaintiff failed to ‘properly’ exhaust his
administrative remedies.” Ford v. Spears, 10-CV-1314, 2012 WL 4481739, at *6 (E.D.N.Y.
Sept. 27, 2012) (citing Woodford v. Ngo, 548 U.S. at 91); see also Gordon v. Lappin, 07-CV10948, 2008 WL 4179233, at *3 (S.D.N.Y. Sept. 10, 2008) (holding that petitioner, whose
appeal was “twice rejected for procedural defects . . . has failed to exhaust BOP administrative

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remedies and has procedurally defaulted because the time for him to file his appeal . . . has
passed”).
Moreover, petitioner has not shown any cause or prejudice regarding this default. See
Carmona v. U.S. Bureau of Prisons, 243 F .3d 629, 630 (2d Cir. 2001) (“[A] federal prisoner
who defaults in pursuit of his administrative remedies will . . . be denied habeas review absent a
showing of cause and prejudice.”).
Thus, because petitioner failed to timely file his appeal and has not shown cause or
prejudice for this default, his claim for good time credit was not properly exhausted and is
dismissed.
CONCLUSION
Accordingly, it is hereby ORDERED that petitioner’s habeas corpus petitions, docketed
as 12-CV-4405, 12-CV-4772, 12-CV-4908, 13-CV-221, and 13-CV-547, are DENIED in their
entirety, and the petitions are DISMISSED.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for purpose of
an appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The Clerk of Court is directed to dismiss the petitions, enter judgment accordingly, send
to petitioner a copy of this Memorandum and Order and the accompanying judgment, and close
these cases.
SO ORDERED.

Dated: Brooklyn, New York
July 1, 2013

Roslynn R. Mauskopf
_________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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