Millhouse v. Ebbert

Filing 14

MEMORANDUM re MOTION for Reconsideration 12 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 6/15/16. (ma)

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

:
:
:
:
:
:
:
:
:

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 regarding the
disciplinary sanctions he was challenging, 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

challenged 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 claimed 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

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

Officer; (3) the incident report was fabricated; and (4)
he was denied the opportunity to present surveillance
video of the incident. (Id.)

Milhouse indicated 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
contended that he appealed to the Regional Office of the
Bureau of Prison but received no response from the
Regional Office and argued that excused him from
appealing to the Central Office of the Bureau of
Prisons. (Id.)

Milhouse requested that the Bureau of

Prison be directed to expunge the incident report from
his record. (Id.)
By memorandum and order of May 9, 2016, the
court dismissed Milhouse’s amended petition and closed
the case. (Docs. 10, 11.) In sum, the court dismissed
the amended petition for failure to exhaust
administrative remedies because it was clear that,
although Milhouse filed an administrative appeal to the
Regional Office, he failed to file an appeal to the
Central Office and the court discerned no external

3

objective factor which prevented Milhouse from pursuing
and completing the administrative process.

The court

stated that the fact that the Regional Office did not
respond to Milhouse’s appeal did not relieve Milhouse of
his obligation to appeal to the Central Office because
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.)

The court stated that the

Regional Office’s lack of response was a sub silentio
denial which authorized Milhouse to proceed to the final
step of the administrative process. The court
incorporates herein by reference the full reasoning set
forth in the memorandum of May 9, 2016.

4

On May 31, 2016, Milhouse filed a document
entitled “Motion for Reconsideration to Federal Rules of
Civil Procedure Rule 59(e)” and a separate brief in
support thereof.2

Milhouse contends that we

misconstrued the federal regulations relating to the
exhaustion of his administrative remedies and that the
fact that the Regional Office did not respond was cause
which prevented him from complying with the
administrative remedy process.
For the reasons set forth below, the court will
deny Milhouse’s motion for reconsideration.
Discussion
A motion for reconsideration is a device of
limited utility.

It may be used only to seek

remediation for manifest errors of law or fact or to
present newly discovered evidence which, if discovered
previously, might have affected the court's decision.
Harsco Corp. v. Zlotnicki, 779 F.2d 906 (3d Cir. 1985),
Local Rule 7.10 states as follows: “Any motion for
reconsideration or reargument must be accompanied by a
supporting brief and filed within fourteen (14) days
after the entry of the order concerned. This rule is
not applicable to a motion to alter or amend a judgment
under Fed.R.Civ.P. 59.”
2.

5

cert. denied, 476 U.S. 1171 (1986); Massachusetts Mutual
Life Insurance Co. v. Maitland, Civil No. 87-0827 (M.D.
Pa. March 1, 1989) (Rambo, J.).

Accordingly, a party

seeking reconsideration must demonstrate at least one of
the following grounds prior to the court altering, or
amending, a standing judgment: (1) an intervening change
in the controlling law; (2) the availability of new
evidence that was not available when the court granted
the motion; or (3) the need to correct a clear error of
law or fact or to prevent manifest injustice. Wiest v.
Lynch, 710 F.3d 121, 128 (3d Cir. 2013);

Max's Seafood

Café v. Quineros, 176 F.3d 669, 677 (3d Cir.
1999)(citing North River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).

A motion for

reconsideration may not be used as a means to reargue
unsuccessful theories, or argue new facts or issues that
were not presented to the court in the context of the
matter previously decided.

Drysdale v. Woerth, 153 F.

Supp. 2d 678, 682 (E.D. Pa. 2001).

“Because federal

courts have a strong interest in the finality of
judgments, motions for reconsideration should be granted

6

sparingly.”

Continental Casualty Co. v. Diversified

Indus. Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995).3
Milhouse is raising an argument which the court
has already considered and rejected. The federal
regulation relating to the exhaustion of administrative
remedies is unambiguous.

If the Regional Office did not

respond in accordance with the time frame set forth in
the regulation, the non-response is a denial and then
the inmate must submit an appeal to the Central Office.
Milhouse’s motion for reconsideration fails to
demonstrate that there has been an intervening change in
the law, that there is newly discovered evidence, or
that there has been a clear error of law or manifest
injustice committed.

Thus, the court finds that its

Rule 59(e) permits a party to file a motion to alter
or amend judgment within 28 days of the entry of
judgment. Motions under Rule 59(e) are disfavored and
the moving party bears the burden of establishing the
circumstances warranting relief from a final judgment,
such as an intervening change in the law, availability
of new evidence or the need to correct clear error of
law. Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C.Cir. 1996). Rule 59(e) is not a vehicle to
relitigate old matters or to raise arguments or present
evidence that could have been raised prior to entry of
judgment. Exxon Shipping Co. v. Baker, 554 U.S. 471,
485 n.5 (2008).
3.

7

memorandum and order of May 9, 2016, is not defective
because of manifest errors of law or fact and Milhouse
has not presented anything new, which if previously
presented, might have affected the court’s decision.
Consequently, the motions for reconsideration will be
denied.
An appropriate order will be entered.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge

Dated: June 15, 2016

8