Wolters v. Thomas

Filing 41

MEMORANDUM (Order to follow as separate docket entry)To hold otherwise would frustrate the purposes of the exhaustion doctrine by allowing prisoners to invoke the judicial process before completing administrative review. An appropriate Order will enter. (See MemorandumSigned by Honorable Richard P. Conaboy on 10/20/14. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ANDREW WOLTERS,

:
:
Petitioner
:
:
v.
: CIVIL NO. 3:CV-12-1115
:
WARDEN THOMAS,
: (Judge Conaboy)
:
Respondent
:
________________________________________________________________
MEMORANDUM
Background
Andrew Wolters, a prisoner presently confined at the
McCreary United States Penitentiary, Pine Knot, Kentucky filed
this pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241.

Named as Respondent is Warden Thomas who is

employed at the Petitioner’s prior place of confinement, the
United States Penitentiary, Lewisburg, Pennsylvania (USPLewisburg).1
By Memorandum and Order dated May 12, 2014, this Court
denied relief with respect to Grounds 2,3, & 4 of the Petition.
See Docs. 31 & 32.

In addition, it was determined that Wolters

arguably set forth a viable federal habeas corpus claim with

1

The only properly named respondent in a federal habeas
corpus action is the applicant’s custodial official. See 28
U.S.C. § 2242. This action was initiated by Wolters while he was
held at USP-Lewisburg.
1

regards to his contention (Ground One) that the federal Bureau
of Prisons (BOP) was precluded from implementing the Inmate
Financial Responsibility Program (IFRP) to collect restitution
in his case.

Consequently, the Respondent was directed to file

a supplemental response addressing Petitioner’s surviving claims
(Ground One).2
The Respondent’s supplemental response argues that Ground
One is subject to dismissal because “Wolters has failed to
exhaust his administrative remedies and because his restitution
schedule is consistent with the schedule directed by the
sentencing court.”

Doc. 33, p. 1.
Discussion

Petitioner alleges that on or about March 28, 2012, he
learned that administrative sanctions had been imposed against
him for not making payments pursuant to the IFRP.
Ground One.

See Doc. 1,

Relying on Soroka v. Daniels, 467 F. Supp.2d. 1097

(D. Or. 2006), Wolters argues that the imposition of the IFRP in
his case was improper because the sentencing court had not
amended its restitution order.3

2

Although, Soroka is not binding on this Court, Respondent’s
initial response did not address Petitioner’s IFRP claim.
3

An IFRP related claim sounds in habeas corpus. See Pinet
v. Grondolsky, 345 Fed. Appx. 805, 806 (3d Cir. 2009)(when an
inmate “challenges the execution of his sentence by claiming that
the BOP acted unlawfully in establishing a payment schedule
2

Administrative Exhaustion
Respondent’s initial argument seeks dismissal of the
remaining portion of the petition on the grounds that Wolters
failed to exhaust his available administrative remedies.
It is well-settled that "[a] federal prisoner ordinarily
may not seek habeas corpus relief until he has exhausted all
available administrative remedies."

Bradshaw v. Carlson, 682

F.2d 1050, 1052 (3d Cir. 1981)(emphasis added).

A party is

required to exhaust administrative remedies before seeking
relief in federal court unless Congress has indicated to the
contrary or the available administrative remedies are inherently
inadequate.

Young v. Quinlan, 960 F.2d 351, 356 (3d Cir. 1992).

Exhaustion is only excused where pursuit of administrative
remedies would be futile, the agency's actions clearly and
unambiguously violate statutory or constitutional rights, or the
administrative procedures would be inadequate to prevent
irreparable harm.

Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d

Cir. 1988).
The Federal Bureau of Prisons (BOP) has a well established

regarding the imposed fine, the claim falls squarely within the
purview of a section 2241 petition.”); Millegan v. Martinez, 2010
WL 174873 *1 (M. D. Pa. Jan. 12, 2010)(Caputo, J.).
It is also noted that the Third Circuit Court of Appeals has
recognized that the IFRP is constitutional. See Pinet 345 Fed.
Appx. at 807(reaffirming the constitutionality of the IFRP).
3

three (3) step Administrative Remedy Program whereby a federal
prisoner may seek review of any aspect of his imprisonment.
28 C.F.R. §§ 542.10-542.19.

See

After attempting to informally

resolve the issue, a BOP inmate can initiate the first step of
the grievance process by submitting

“a formal written

Administrative Remedy Request, on the appropriate form (BP-9),”
within twenty (20) calendar days “following the date on which
the basis for the Request occurred.”
542.14(a).

See

28 C.F.R. §

The Warden has twenty (20) calendar days from the

date the Request or Appeal is filed in which to respond.

Id. at

§ 542.18.
If not satisfied with the Warden's response, an inmate may
appeal (step two) on the appropriate form (BP-10) to the
Regional Director within twenty (20) calendar days of the date
the Warden signed the response.

Id. at § 542.15.

Finally, if

the inmate is dissatisfied with the Regional Director's
response, that decision may then be appealed (step three) on the
appropriate form (BP-11) to the General Counsel within thirty
(30) calendar days from the date the Regional Director signed
the response.

Id.

Additionally, “[i]f the inmate does not

receive a response within the time allotted for reply, including
extension, the inmate may consider the absence of a response to
be a denial at that level.”

Id.

In support of the non-exhaustion argument, Respondent has
4

submitted a declaration under penalty of perjury by USPLewisburg Attorney Advisor Michael Romano.
Exhibit A.

See Doc. 33-1,

Attorney Romano states that a review of the BOP’s

computerized index of administrative remedies reveals that since
Wolters has been in federal custody he has filed 241
administrative grievances, 75 of which were fully exhausted.
See id. at ¶ 6.
Romano’s declaration elaborates that Petitioner attempted
to initiate an IFRP related grievance at the national level.
However, it was rejected on July 15, 2010 on the basis that it
was not related to a sensitive issue.4

The notice of rejection

directed Petitioner that he needed to refile his grievance at
the institutional level and then the regional level, if
necessary before filing at the national level.
However, Wolters failed to do so.

See id. at ¶ 7.

Based upon that failure,

respondent concludes that ground One is subject to dismissal on
the basis of non-exhaustion.
Petitioner generally counters that he attempted to seek
administrative relief but was denied access to the grievance
procedure, received threats, and was given false disciplinary
reports.

See Doc. 40, p. 1.

Due to those purported actions,

“the administrative remedies was not available.”

4

Id.

It is noted that Petitioner claims that he did not become
aware of his IFRP claim until March 28, 2012.
5

Wolters’ pending § 2241 petition is dated June 10, 2012,5
and will be deemed filed as of that date.

See Houston v Lack,

487 U.S. 266 (1988)(a prisoner’s action is deemed filed at the
time it is given to prison officials for mailing to the Court).
The Court of Appeals for the Third Circuit has repeatedly
recognized that a federal prisoner must exhaust available
administrative remedies before seeking habeas corpus relief in
federal court.

Moscato v. Federal Bureau of Prisons, 98 F.3d

757, 760 (3d Cir. 1996).

Unless it would be futile to pursue

administrative remedies, courts have rejected attempts to obtain
judicial relief by prisoners who have disregarded the
administrative remedy process.

See

Ramsey v. United States,

No. Civ. 1:CV-05-1476, 2006 WL 1412767 at *1 (M.D. Pa. May 22,
2006)(Caldwell, J.); Porte v. Warden, FCI-Allenwood, No. Civ.
4:CV-04-1534, 2006 WL 47654 at *3-5 (M.D. Pa. Jan. 9,
2006)(Jones, J.).
Based upon the undisputed record, Petitioner initiated
this federal habeas corpus action before exhausting his
available BOP administrative remedies in regards to Ground One.
Petitioner acknowledges that he knew how to pursue
administrative relief.

See Doc. 40, p. 2.

Moreover, attached

to Wolters’ reply is an exhibit which indicates that after the

5

See Doc. 1, p. 12.
6

filing of this action he initiated a proper IFRP related
administrative grievance dated April 28, 2014.

See Doc. 40-1,

p. 8.
Wolters also offers no viable explanation as to why he
failed to properly pursue administrative relief with respect to
Ground One prior to the initiation of this action.

Petitioner’s

submissions do not provide an arguable basis for a determination
under the limited Lyons exceptions that he should be excused
from the exhaustion requirement.

On the contrary, Wolters does

not dispute that he has filed over two hundred and forty (240)
grievances while incarcerated, seventy-five (75) of which were
fully exhausted.

It is also noted that copies of Petitioner’s

BOP administrative remedy records which accompany Attorney
Romano’s declaration show that in the year prior to the filing
of this action, Wolters filed and exhausted a BOP grievance.
See Doc. 33-1, p. 59.

Petitioner’s documented history of

pursuing BOP administrative remedies undermines his vague
argument that he was denied access to the process or was afraid
to seek such relief.

Based upon those considerations,

Petitioner’s remaining claim, Ground One, was prematurely raised
before this Court.

Accordingly, dismissal of that surviving

argument is appropriate under the standards developed in Moscato
and Ridley.

See Murray v. Grondolsky 2009 WL 2044821 *2 (D.N.J.

2009)( dismissal of § 2241 action for non-exhaustion of
7

administrative remedies); Morgan v. Borough of Carteret, 2008 WL
4149640 *5 (D.N.J. 2008) (dismissal for non-exhaustion of
administrative remedies).

To hold otherwise would frustrate the

purposes of the exhaustion doctrine by allowing prisoners to
invoke the judicial process before completing administrative
review.

An appropriate Order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED:

OCTOBER 20, 2014

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