Livingston v. Oddo

Filing 9

MEMORANDUM (Order to follow as separate docket entry) re: 1 Petition for Writ of Habeas Corpus filed by Dennever Livingston. (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 12/21/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DENNEVER LIVINGSTON,

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Petitioner
v.
WARDEN LENARD ODDO,
Respondent

CIVIL NO. 1:15-CV-1850
(Chief Judge Conner)

MEMORANDUM
Presently before the court is a petition for writ of habeas corpus (Doc. 1)
pursuant to 28 U.S.C. § 2241 filed on September 24, 2015, by petitioner Dennever
Livingston (“Livingston”), a federal inmate incarcerated at the Allenwood United
States Penitentiary (“USP-Allenwood”), in White Deer, Pennsylvania. Livingston
claims that his due process rights were violated in the context of a prison
disciplinary hearing. (Id. at p. 3). The petition is ripe for disposition and, for the
reasons that follow, will be denied.
I.

Background
On September 16, 2013, while incarcerated at the Federal Correctional

Institution in Otisville, New York, Livingston was charged in Incident Report
Number 2493005 with possession of narcotics, in violation of Federal Bureau of
Prisons (“BOP”) Prohibited Acts Code Section 113. (Doc. 1, p. 2; Doc. 8, Ex. 1,
Declaration of Michael S. Romano, BOP Attorney Advisor (“Romano Decl.”), ¶ 7).
The incident and hearing are described as follows:

On September 16, 2013, at approximately 5:00pm an
officer conducted a pat search of Livingston. During the
search the officer found a folded paper in Livingston’s
back left pants pocket which contained a green leafy
substance. The substance was tested revealing a positive
reaction for THC. The Officer wrote the incident report
at issue in this matter. See Incident Report No. 2493005
A copy of the incident report was given to Livingston the
same day at 8:00pm. On September 17, 2013, the Unit
Discipline Committee (“UDC”) referred the matter to the
Discipline Hearing Officer (“DHO”). See Incident Report
No. 2493005
On September 17, 2013, Livingston was provided a copy
of his rights at the scheduled discipline hearing and a
copy of the notice of the DHO Hearing. See Inmate
Rights at Discipline Hearing; Notice of Discipline
before the DHO;
The DHO conducted a hearing on September 19, 2013.
Inmate Livingston appeared before Disciplinary Hearing
Officer at which time he admitted to the charge stating “it
is true”. He waived his right to a staff representative and
did not request witnesses.
After review of the evidence, the DHO found that inmate
Livingston had committed the offense as initially alleged
in the incident report. Id. As a result the DHO issued
sanctions that included 27 days loss of good conduct time.
See DHO Report for IR 2493005
(Id.)
Livingston did not immediately appeal the disciplinary hearing officer’s
decision. Rather, he waited until April 23, 2015, to file Administrative Remedy No.
819017-R1 with the Regional Office. (Doc. 1, p. 7; Doc. 8, Romano Decl. ¶ 6; Doc. 8,
p. 36, Administrative Remedy Generalized Retrieval). On April 28, 2015,
Administrative Remedy No. 819017-R1 was rejected as untimely. (Id.)

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On August 17, 2015, Livingston appealed the rejection of Administrative
Remedy No. 819017-R1 to the BOP Central Office, designated as Administrative
Remedy No. 819017-A1. (Doc. 1, pp. 4-5; Doc. 8, Romano Decl. ¶ 6; Doc. 8, p. 38). On
August 28, 2015, the BOP Central Office rejected the appeal. (Id.) Livingston was
informed that he submitted his request or appeal to the wrong level. (Id.) The
Central Office further advised him to provide a staff memorandum explaining why
the appeal was untimely, and to resubmit his appeal to the Regional Office. (Id.)
There is no evidence that Livingston resubmitted his appeal to the Regional
Office. (Doc. 8, Romano Decl. ¶ 6). Moreover, Livingston acknowledges that he did
not file any further appeals. (Doc. 1, p. 2).
The instant petition was filed on September 24, 2015. (Doc. 1). In the
petition, Livingston claims that his due process rights were violated during the
course of the prison disciplinary hearing. (Id. at p. 3). Livingston maintains that he
did not commit the act for which he was charged, and the incident report was
falsified. (Id.) For relief, Livingston requests that the court restore his good time
credits and expunge the incident report. (Id.)
II.

Discussion
Respondent argues that the petition should be denied based on Livingston’s

failure to comply with the BOP’s administrative review process. (Doc. 7, pp. 4-8).
Despite the absence of a statutory exhaustion requirement attached to § 2241,
courts have consistently required a petitioner to exhaust administrative remedies
prior to bringing a habeas claim under § 2241. See Callwood v. Enos, 230 F.3d 627,
634 (3d Cir. 2000); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.
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1996). Exhaustion is required “for three reasons: (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.” Moscato, 98 F.3d at 761-62 (citing Bradshaw v. Carlson,
682 F.2d 1050, 1052 (3d Cir. 1981)). 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
the administrative procedure is clearly shown to be inadequate to prevent
irreparable injury”); Carling v. Peters, No. 00-2958, 2000 WL 1022959, at *2 (E.D. Pa.
July 10, 2000) (exhaustion not required where delay would subject petitioner to
“irreparable injury”).
In general, the BOP’s administrative review 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. (Doc. 8,
Romano Decl. ¶ 4, citing 28 C.F.R. §§ 542.10, et seq.). With respect to disciplinary
hearing decision appeals, a BOP inmate can initiate the first step of the
administrative review process by filing a direct written appeal to the BOP’s
Regional Director (thus bypassing the institutional level of review) within twenty
days after receiving the DHO’s written report. (Id.) If dissatisfied with the Regional
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Director’s response, a Central Office Appeal may then be filed with the BOP’s Office
of General Counsel. (Id.) This is the inmate’s final available administrative appeal.
In the instant matter, Livingston failed to exhaust the available
administrative remedies. Livingston filed his initial administrative remedy with the
Regional Office. The appeal was rejected as untimely. Livingston then filed an
appeal with the Central Office. The Central Office rejected his appeal because it
was submitted to the wrong level. Livingston was given an opportunity to explain
the untimeliness of his appeal. However, he failed to provide either an adequate
explanation or sufficient proof to excuse the significant filing delay. Additionally,
Livingston acknowledges that he failed to submit any further appeals after the BOP
Central Office rejected his appeal. (Doc. 1, p. 2).
Livingston waited more than a year and a half to appeal the decision of the
disciplinary hearing officer, well beyond the allotted twenty days. It is clear that the
appeal was patently untimely and, therefore, appropriately rejected. Because
Livingston has not alleged facts that would permit the court to find that exhaustion
would have been futile, or that requiring exhaustion would subject him to
“irreparable injury,” the petition will be denied for failure to exhaust administrative
remedies. To hold otherwise would frustrate the purposes of the exhaustion

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doctrine by allowing prisoners to invoke the judicial process despite failing to
complete administrative review.
III.

Conclusion
Based on the foregoing, the petition for writ of habeas corpus will be denied.

An appropriate order will issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

December 21, 2015