McCarthy v. Ebbert
Filing
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MEMORANDUM (Order to follow as separate docket entry) re: 1 Petition for Writ of Habeas Corpus filed by John J. McCarthy. (See memo for complete details.)Signed by Honorable William W. Caldwell on 12/20/16. (ki)
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN J. McCARTHY,
Petitioner
vs.
WARDEN EBBERT,
Respondent
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CIVIL NO. 1:CV-16-0031
(Judge Caldwell)
MEMORANDUM
I.
Introduction
On January 6, 2016, John J. McCarthy, an inmate confined at the United
States Penitentiary in Lewisburg, Pennsylvania, filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. McCarthy seeks relief from sanctions imposed in
prison disciplinary proceedings where he was allegedly denied due process.
A challenge to a disciplinary action that resulted in the loss of good time credit
is reviewable under § 2241 because it affects the duration of the petitioner’s sentence.
Queen v. Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008). However, we will deny McCarthy’s
petition due to his failure to exhaust his available administrative remedies.
II.
Background
In his petition, McCarthy claims he appeared before a Discipline Hearing
Officer (DHO) following his receipt of an incident report for fighting. Although he was
appointed a staff representative, that person did not meet with him prior to the hearing and
“provided no defense for [him].” (ECF No. 1, Pet., p. 2). McCarthy’s request to postpone
the hearing to allow him to prepare a defense was denied. (Id.) Finally, he asserts there
was insufficient evidence presented at the disciplinary hearing to find him guilty of fighting.
As a result of the DHO’s findings, McCarthy lost good conduct time and unspecified
privileges. (Id., p. 3). McCarthy claims he has exhausted his available administrative
remedies. (Id.) As relief he seeks the expungement of the incident report from his record
and the restoration of lost good conduct time. (Id., p. 4).
The Bureau of Prisons (BOP) filed a response to the Petition. (ECF No. 7).
In its response, the BOP presented the Declaration of Jennifer Knepper, Attorney Advisor
at USP-Lewisburg, who affirms that the documents presented in connection with her
declaration are true and correct. (ECF No. 7-1, Exs. In Supp. of Resp. to Pet. For Writ of
Habeas Corpus, p.4). Based on documentary evidence provided by Attorney Knepper in
support of the Response, the following facts are presented related to the Incident Report in
question, No. 2798288 and to McCarthy’s exhaustion of his available administrative
remedies. (ECF No. 7-1, Exhs. In Supp. of Resp. to Pet. For Writ of Habeas Corpus).
On December 28, 2015, Incident Report 2798288 was written by Special
Investigative Agent (SIA) Heath and charged McCarthy with the prohibited act of fighting in
violation of Code 201. SIA Heath issued the Incident Report following separate interviews
with McCarthy and one of his cellmates, inmate Macchhione. (Id., p. 36 and p. 44). Both
inmates reported their involvement in a fist fight with each other several weeks prior to the
interview and as recently as “last evening.” (Id., p. 36) Both inmates were photographed
and medically assessed following their respective interviews. (Id.) McCarthy advised
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medical staff he was injured on November 27, 2015, after a “fight with [his] celli” and
needed pain medication for a lower back injury. (Id., p. 45). Inmate Michonne reported he
was “alright” following a “little fight last night.” (Id., p. 48).
A copy of the incident report was delivered to McCarthy on December 28,
2015. (Id., p. 36). The following day the Unit Discipline Committee (UDC) referred the
charge to the DHO based on the severity of the offense. McCarthy is reported as telling the
UDC he was “not guilty - self defense.” (Id.) The UDC recommended that the DHO “apply
all appropriate sanctions.” (Id.)
McCarthy was given Notice of Disciplinary Hearing before the DHO but could
not sign his receipt of the document “due to restraints.” (Id., p. 37). He was also given a
copy of his rights at a disciplinary hearing but again was unable to sign to verify his receipt
of this document due to restraints. (Id., p. 38). McCarthy requested staff representation
and provided a list of desired witnesses. (Id., p. 37). D. Bridge agreed to serve as
McCarthy’s staff representative on December 29, 2015. (Id., p. 39).
McCarthy appeared before the DHO on January 4, 2016.1 (Id., p. 40). Based
on the greater weight of the evidence in the case, the DHO found McCarthy guilty of
violating Code 201, Fighting, on December 27, 2015. (Id., pp. 41-43). The DHO imposed
the following sanctions: disallowance of 27 days GCT; 30-days disciplinary segregation; 901
McCarthy’s Petition is dated January 6, 2015. (ECF No. 1, p. 4). It was postmarked
January 6, 2016. (Id., p. 5). McCarthy alleges he appeared before a DHO on January 5, 2015.
Evidence presented demonstrates McCarthy erred in reporting this date. Attorney Advisor Knepper
affirms McCarthy never appeared before a DHO on January 5, 2015, for a violation of Code 201,
fighting. (ECF No. 7-1, p. 3). Rather, McCarthy’s DHO hearing for fighting was held on January 5,
2016. (Id.)
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days loss of commissary and visiting privileges (suspended 180 days). (Id., p. 43). The
DHO noted that McCarthy was advised of his right to appeal the DHO’s decision within
twenty calendar days under the BOP’s Administrative Remedy Procedure and that a copy
of the DHO’s January 22, 2016, report was delivered the same day to McCarthy. (Id.)
Both McCarthy and Macchione were found guilty by the DHO on January 4, 2016, of
fighting with each other. (Id., p. 52).
III.
Discussion
“Federal prisoners are ordinarily required to exhaust their administrative
remedies before petitioning for a writ of habeas corpus pursuant to § 2241.” Moscato v.
Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996); see also Vasquez v. Strada,
684 F.3d 431, 433 (3d Cir. 2012). A failure to satisfy the procedural rules of the BOP’s
administrative remedy process constitutes a procedural default. Beckford v. Martinez, 408
F. App’x 518, 520 (3d Cir. 2010) (citing Moscato, 98 F. 3d at 760). If such a default renders
the administrative process unavailable, review of a habeas claim is barred absent a
showing of cause and prejudice. (Id.) A petitioner must show that some “external
impediment” prevented him from exhausting his administrative remedies in a proper and
timely manner, to satisfy the “cause” requirement. Moscato, 98 F.3d at 762 (petitioner
could not satisfy cause requirement where he failed “to allege the existence of an external
impediment,” or that “anything other than [his own] dilatoriness caused the [administrative]
appeal to be filed late”).
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The BOP has a multi-tiered Administrative Remedy Program for a prisoner to
seek formal review of any aspect of his imprisonment. (ECF No. 7-1, Doc. 6-1, Knepper
Decl., p. 4, citing 28 C.F.R. § 542.10, et seq.) An inmate may challenge a DHO decision by
filing an appeal with the Regional Director for the region where the inmate is currently
located within twenty calendar days of the DHO’s decision. 28 C.F.R. § 542.14(d)(2). If
dissatisfied with the Regional Director’s response, the inmate may file an appeal with the
BOP’s Central Office within thirty calendar days of the date of the Regional Director’s
response. See 28 C.F.R. § 542.15. The deadlines contained within this process may be
extended upon request by the inmate and a showing of a valid reason for delay. See 28
C.F.R. § 542.15(a). No administrative remedy appeal is considered to have been fully and
finally exhausted until it has been denied by the BOP’s Central Office. (Doc. 7-1, Knepper
Decl. ¶ 5).
It is undisputed that McCarthy filed the present habeas petition (January 6,
2016) prior to his receipt of the DHO’s formal decision (January 22, 2016). See ECF No. 1,
Pet., p. 4 and ECF No. 7-1, p. 43. While McCarthy argues in his Reply interference with his
ability to exhaust his administrative remedies (ECF No. 8), we need not reach that issue
because it is clear that BOP officials could not have interfered with his exhaustion of
administrative remedies prior to the commencement of the appeal period, his receipt of the
DHO’s report. Again, while McCarthy may dispute that he has since exhausted his
administrative remedies since his filing of his Petition, or that BOP officials frustrated his
ability to comply with the BOP’s administrative process, he fails to present any argument or
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rationale to suggest any external impediment prevented him from complying with the BOP’s
administrative remedy process. Thus, McCarthy has failed to demonstrate cause for his
procedural default. Accordingly, review of his claim is barred. Moscato, 98 F.3d at 759.
We will issue an appropriate order.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: December 20, 2016
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