Millhouse v. Ebbert

Filing 10

MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 5/9/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KAREEM HASSAN MILHOUSE,
Petitioner
vs.
WARDEN DAVID EBBERT,
Respondent

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CIVIL NO. 1:16-CV-00239

(Judge Rambo)

MEMORANDUM
Background
On February 11, 2016, Kareem Hassan Milhouse, a
federal prisoner confined at the United States
Penitentiary, Lewisburg, Pennsylvania, filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
(Doc. 1.)

Along with the petition Milhouse filed an

unsigned motion to proceed in forma pauperis. (Doc. 2.)
On February 17, 2016, an Administrative Order was issued
directing Milhouse to pay the filing fee or submit a
signed motion to proceed in forma pauperis within 14
days. (Doc. 4.)

On February 26, 2016, Milhouse filed a

signed motion to proceed in forma pauperis. (Doc. 5.)

On March 21, 2016, the petition was given
preliminary consideration pursuant to Rule 4 of the
Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, as
made applicable to § 2241 cases by Rule 1 thereof,1 and
because the petition was scant in detail Milhouse was
directed to file an amended petition.
On April 13, 2016, Milhouse filed an amended
petition and on April 18, 2016, a copy of the Discipline
Hearing Officer Report. (Docs. 8, 9.)

Milhouse

challenges the outcome of a prison disciplinary
proceeding where he was found guilty of fighting with
another person in violation of Code 201, a high severity
level prohibited act. (Id.)

Milhouse claims that (1)

there was insufficient evidence to find him guilty; (2)
he was denied the opportunity to attend and present
evidence at the hearing before the Discipline Hearing
Officer; (3) the incident report was fabricated; and (4)
Rule 4 states in pertinent part that “[t]he clerk
must promptly forward the petition to a judge under the
court’s assignment procedure, and the judge must
promptly examine it. If it plainly appears from the
petition and any attached exhibits that the petitioner
is not entitled to relief in the district court, the
judge must dismiss the petition . . . .”

1.

2

he was denied the opportunity to present surveillance
video of the incident. (Id.)

Milhouse indicates that he

received 27 days loss of Good Conduct Time, disciplinary
segregation for 30 days, and loss of commissary and
visitation privileges for 90 days. (Id.) Milhouse
contends that he appealed to the Regional Office of the
Bureau of Prison but received no response from the
Regional Office and contends that excused him from
appealing to the Central Office of the Bureau of
Prisons. (Id.)

Milhouse requests that the Bureau of

Prison be directed to expunge the incident report from
his record. (Id.)
For the reasons set forth below, Milhouse will
be granted in forma pauperis status for the purpose of
filing this action and the petition and amended petition
will be dismissed.
Discussion
Milhouse contends he filed an appeal to the
Northeast Regional Office of the Bureau of Prisons on
December 3, 2015, claiming, inter alia, there was
insufficient evidence and the incident report was
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falsified, but received no response from the Regional
Office.

The statements that there was insufficient

evidence and the incident report was falsified are
conclusory. Milhouse does not set forth any facts
indicating how the evidence was insufficient or the
incident report falsified.2 Milhouse further claims that
In Wolff v. McDonnell, 418 U.S. 539 (1974), the
Supreme Court set forth the following minimum
procedural due process rights to be afforded to a
prisoner accused of misconduct in prison which may
result in the loss of good time credit: (1) the right
to appear before an impartial decision-making body; (2)
twenty-four hour advance written notice of the
disciplinary charges; (3) an opportunity to call
witnesses and present documentary evidence in his
defense when it is consistent with institutional safety
and correctional goals; (4) assistance from an inmate
representative if the charged inmate is illiterate or
complex issues are involved; and (5) a written decision
by the fact finder of the evidence relied upon and the
rationale behind the disciplinary action. Id. at 56367. The Supreme Court has held that the standard of
review with regard to the sufficiency of the evidence
is whether there is “any evidence in the record that
could support the conclusion reached by the
disciplinary board.” Superintendent v. Hill, 472 U.S.
445-46 (1985); see also Griffin v. Spratt, 969 F.2d 16,
19 (3d Cir.1992). If there is “some evidence” to
support the decision of the hearing examiner, the court
must reject any evidentiary challenges by the
plaintiff. Hill, 472 U.S. at 457. The Hill standard
is minimal and does not require examination of the
entire record, an independent analysis of the
credibility of the witnesses, or even a weighing of the
evidence. See Thompson v. Owens, 889 F.2d 500, 501-502
2.

(continued...)

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what is shown and heard on a video/audio surveillance
tape of the incident conflicts with the officer’s
testimony regarding the incident.

The Discipline

Hearing Officer Report which Milhouse submitted, after
filing the amended petition, rebuts those assertions.
(Doc. 9.)

The Discipline Hearing Officer Report reveals

that the date of the incident was November 17, 2015;
Milhouse was charged in an incident report with fighting
with his cellmate Michael Mahoney, and refusing to obey
an order and given advanced written notice of the
charges on the same day; on November 18, 2015, Milhouse
was advised of the rights he had with respect to the
hearing before the Discipline Hearing Officer; Milhouse
waived his right to staff representation, requested no
witnesses, and declined to appear at the hearing or
present any documents; and the DHO at the hearing
considered the incident report charging Milhouse with
2.

(...continued)

(3d Cir. 1989). Based this court’s review of the
Discipline Hearing Officer Report set forth in this
memorandum there was clearly “some evidence” supporting
the finding of guilt. The court is not required to make
credibility determinations. Superintendent v. Hill, 472
U.S. at 455.
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fighting and refusing to obey an order, memoranda from
four corrections officers, medical documentation of
injuries sustained by Milhouse and Mahoney, photographs
of Milhouse and Mahoney taken after the incident, and
video surveillance footage of the range in the vicinity
of the cell where Milhouse and Mahoney were housed.
(Id.)

Based on that evidence the DHO found that

Milhouse was guilty of fighting and in so doing stated
in pertinent part as follows:
The DHO finds that inmate Milhouse committed
the prohibited act of Fighting, Code 201.
This finding is based on the eyewitness written
account of the reporting officer, which
indicates on 11-17-2015 at approximately 6:25
p.m., the reporting officer was making rounds
on D-Block 1st Floor. Upon arriving at cell 121,
which housed inmates Mahoney [] and Milhouse [],
the reporting officer observed the inmates
fighting in the cell, exchanging closed fist
punches to the head and torso. The reporting
officer called for assistance and repeatedly
ordered the inmates to stop fighting and submit
to hand restraints. The inmates refused the
orders and continued to fight.
This finding is further based on the fact inmate
Milhouse declined to appear at the DHO hearing,
declined to make any statement of any sort, and
did not provide the DHO with any documentary
evidence to review. . . .
The DHO notes at the time inmate Milhouse
appeared before the [Unit Disciplinary
Committee], he requested video footage of
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the D-1 range recorded on 11-17-2015 in
proximity to the time of the incident as
documented in . . . the incident report be
reviewed and considered as evidence in this
case. The DHO did review this video footage as
requested by Milhouse however, [the DHO] finds
it inconclusive as far as determining whether
Milhouse committed the prohibited act charged
in this case. The DHO notes there are no
security surveillance cameras in the individual
cells . . . As such, there is no video footage
available for review capable of proving with any
degree of certainty what actually transpired
inside cell D-121 during the incident. The
DHO’s review of the video footage of the D-1
range recorded by the security surveillance
cameras on 11-17-2015, in proximity to the
time of the incident . . . [reveals that] [a]t
6:24:50 PM the reporting officer is observed
approaching the door to cell D-121 as he is
making rounds on the D-1 range. The reporting
officer is observed speaking to the occupant(s)
of the cell. At 6:25:05 PM, the reporting
officer is observed taking a step back from the
door to cell D-121, removing his hand held
radio from his duty belt, and is observed
calling for assistance. The reporting officer
is then observed pounding on the door to cell
D-121 with his fist, and is again observed
speaking to the occupants of the cell. . . .
The greater weight of the evidence in this case,
therefore, supports the finding inmate Milhouse
committed the prohibited act of Fighting, Code
201.
(Id. at 3.)

The DHO imposed the following sanctions: 27

days loss of Good Conduct Time, 30 days disciplinary
segregation, and 90 days of loss of commissary and
visiting privileges. Id.

Milhouse was advised of his
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right to appeal within 20 calendar days of the decision.
(Id.) The Discipline Hearing Officer Report was signed
by the DHO on December 2, 2015, and Milhouse received a
copy of it on December 3, 2015.(Id. at 4.)
On December 3, 2015, Milhouse filed an appeal of
the DHO’s decision with the Regional Office of the
Bureau of Prisons raising the following issues:
“insufficient evidence, denial of opportunity to attend
DHO hearing, fabrication/falsification of incident
report, denial of camera surveillance (unit and use of
force camera).” (Doc. 8, at 2.)

Milhouse alleges that

he never received a response from the Regional Office
and admits that he did not file an appeal to the Central
Office. (Id. at 2-3.)
The Court has authority under 28 U.S.C. § 2241
to review disciplinary sanctions imposed by the Bureau
of Prisons for violating prison regulations. However,
this court may do so only after the petitioner has
exhausted his available Bureau of Prisons’s
administrative remedies.

United States v. Wilson, 503

U.S. 329 (1992); Callwood v. Enos, 230 F.3d 627, 634 (3d
Cir. 2000); Moscato v. Federal Bureau of Prisons, 98
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F.3d 757, 760 (3d Cir. 1996). If a petitioner fails to
exhaust administrative remedies, the district court must
dismiss the petition. Callwood, 230 F.3d at 634.
Furthermore, the burden is on Milhouse in a 2241 habeas
proceeding to prove that he exhausted administrative
remedies. Meyers v. Martinez, 427 F. App’x. 125, 127 (3d
Cir. 2011)(citing Coady v. Vaughn, 251 F.3d 480, 488 (3d
Cir. 2001)(2254 habeas proceeding)).
The Bureau of Prisons has established an
administrative remedy procedure, which is set forth at
28 C.F.R. § 542.10 et seq., whereby a federal prisoner
may seek formal review of any aspect of his
imprisonment.

Inmates must first informally present

their complaints to staff, and staff shall attempt to
informally resolve any issue before an inmate files a
request for administrative relief. 28 C.F.R. §
542.13(a).

If unsuccessful at informal resolution, the

inmate may raise his complaint with the warden of the
institution where he is confined. Id. at § 542.14(a).3
The first two steps, informal resolution and appeal
to the Warden, do not apply to appeals from decisions
of a DHO. 28 C.F.R. § 542.14(d)(2). The inmate is to

3.

(continued...)
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If dissatisfied with the response, the inmate may then
appeal an adverse decision to the Regional Office and
then to the Central Office of the Bureau of Prisons. Id.
at §§ 542.15(a).

No administrative remedy appeal is

considered to have been fully and finally exhausted
until it has been denied by the Bureau of Prisons’s
Central Office.

Id.

Furthermore, the fact that the

Regional Office fails to respond to an appeal does not
relieve an inmate of his responsibility to proceed to
the final step, i.e., submitting an appeal to the
Central Office of the Bureau of Prisons because an
appeal to the Regional Office is deemed responded to and
denied “[i]f the inmate does not receive a response
within [30 calendar days of submission of the appeal].”
28 C.F.R. § 542.18.

Under those circumstances “the

inmate may consider the absence of a response to be a
denial at that level.”

(Id.)

In this case Milhouse has admitted that he
failed to exhaust the administrative remedy procedures
set forth in 28 U.S.C. § 542.10 et seq.
3.

(...continued)

appeal directly to the Regional Office. Id.
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“[F]ailure to satisfy the procedural rules of the
[Bureau of Prisons’] administrative process constitutes
a procedural default.” Moscato, 98 F.3d at 760-761
(citing Francis v. Rison, 894 F.2d 353,355 & n.2 (9th
Cir. 1990); Sanchez v. Miller, 792 F.2d 694, 697 (7th
Cir. 1986)). The time in which Milhouse could file an
appeal to the Central Office has expired and that avenue
of relief is no longer available to him.4 If a default
renders the administrative process unavailable, review
of a habeas claim is barred “absent a showing of cause
and prejudice[.]” Id. at 761.
Cause is generally only established where the
petitioner shows that “some external objective factor
impeded” his or her efforts to comply with the Bureau of
Prisons’s administrative remedy provisions. See Murray
v. Carrier, 477 U.S. 478, 488 (1986). As the United
States Court of Appeals for the Second Circuit has
noted, where “legitimate circumstances beyond the
Milhouse filed an appeal to the Regional Office on
December 3, 2015. The Regional Director had 30
calendar days to make a decision, that is by January 2,
2016. 28 C.F.R. §§ 542.15, 542.18. Milhouse then had
30 calendar days to file an appeal to the Central
Office, that is by February 1, 2016. Id.

4.

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prisoner’s control preclude him from pursuing his
administrative remedies,” cause is established. Carmona
v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.
2001).

Milhouse

has not established cause for his

failure to seek timely review with the Central Office of
the Regional Office’s sub silentio denial of his appeal
30 days after he submitted the appeal.
The court discerns no external objective factor
which prevented Milhouse from pursuing his available
administrative remedies.

Consequently, his habeas

petition will be dismissed.
Finally, because Milhouse is not detained
because of process issued by a state court and the
petition is not brought pursuant to 28 U.S.C. § 2255, no
action by this court with respect to a certificate of
appealability is necessary.
An appropriate order will be entered.
s/Sylvia H. Rambo
United States District Judge
Dated: May 9, 2016
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