Wolters v. Thomas
Filing
19
MEMORANDUM (Order to follow as separate docket entry)Accordingly, the request for dismissal on the basis of non-exhaustion will be granted 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 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. (See Memorandum)Signed by Honorable Richard P. Conaboy on 11/20/14. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ANDREW WOLTERS,
:
:
Petitioner
:
:
v.
: CIVIL NO. 3:CV-13-472
:
J. E. THOMAS, WARDEN,
: (Judge Conaboy)
:
Respondent
:
________________________________________________________________
MEMORANDUM
Background
Andrew Wolters, an inmate presently confined at the
McCreary United States Penitentiary, Pine Knot, Kentucky (USPMcCreary), filed this pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Named as sole Respondent is Warden
Thomas who is employed at the Petitioner’s prior place of
confinement, the United States Penitentiary, Lewisburg,
Pennsylvania (USP-Lewisburg).1
Petitioner does not challenge the legality of his criminal
conviction, the resulting sentence, or the execution of his
sentence.2
Rather, Wolters states that following his September
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.
2
Wolters is serving a 1999 sentence imposed by the United
States District Court for the Central District of California.
1
6, 2011 arrival at USP-Lewisburg he was confined in the prison’s
Special Management Unit (SMU) in retaliation for filing
complaints of sex abuse and refusing to participate in the
Inmate Financial Responsibility Program (IFRP).3
See Doc. 1, p.
7, Ground One. He also asserts that prison officials verbally
threatened his safety.
While housed in the SMU, Petitioner
further contends that he was subjected to physical and sexual
assaults and was denied showers.
Petitioner next describes himself as being a non-gang
member who was improperly housed with street gang members in the
SMU in an effort discourage him from filing lawsuits.4
at Ground Two.
See id.
He explains that prison staff ignore Bureau of
Prison (BOP) policy by not segregating gang members and by using
them to prevent non-affiliated inmates from exercising their
constitutional rights.
Wolter also seeks relief with respect to disciplinary
proceedings which resulted in loss of good time credit.
He
3
The IFRP encourages federal prisoners to meet their
financial responsibilities by entering into a contractual payment
schedule developed for the inmate with the assistance of BOP staff.
An inmate’s failure to participate in this program or to make
agreed payments can affect his or her eligibility for participation
in various BOP programs and may be considered for purposes of
parole review.
4
Wolters indicates that because he is not affiliated with
any street gang he was not suitable for SMU placement and that his
designation to said unit was retaliatory.
2
contends that he was issued “numerous false disciplinary reports
in retaliation for complaints of sex abuse assaults [and] denial
of medical treatment.”
Id., Ground Three.
Wolters elaborates
that he was issued seven (7) and perhaps as many as twenty (20)
such retaliatory misconducts in 2012 including allegations of
interfering with a security device, threatening bodily harm (3
charges); assault, refusing a direct order (2 charges); and
destroying government property.5
Ground Four of the petition asserts that false entries were
made in Petitioner’s inmate file as additional retaliation. In
an amended supporting statement (Doc. 4) Petitioner asserts that
he is being denied needed medical care because of his initiation
of lawsuits.
Discussion
Conditions of Confinement
Respondent argues in part that Wolters is not entitled to
relief with respect to his claims challenging the conditions of
his confinement as such allegations are not properly raised in a
federal habeas corpus petition.
See Doc. 7, p. 14.
Habeas corpus review under § 2241 “allows a federal
prisoner to challenge the ‘execution’ of his sentence.”
Woodall
v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005).
5
The petition does not specify or clearly describe which
misconduct charges are being challenged in this action.
3
A habeas corpus petition may be brought by a prisoner who seeks
to challenge either the fact or duration of his confinement in
prison.
Preiser v. Rodriguez, 411 U.S. 475 (1973), Telford v.
Hepting, 980 F.2d 745, 748 (3d Cir. 1993).
Federal habeas
corpus review is available only “where the deprivation of rights
is such that it necessarily impacts the fact or length of
detention.”
Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002).
In Suggs v. Bureau of Prisons, 2008 WL 2966740 *4 (D. N.J.
July 31, 2008), it was reiterated that in cases where “a
judgment in Petitioner’s favor would not affect the fact or
duration of Petitioner’s incarceration, habeas relief is
unavailable.”
Recognizing the observation in Woodall that the
precise meaning of execution of sentence is hazy, it has been
similarly held that to “the extent that a prisoner challenges
his conditions of confinement, such claims must be raised by way
of a civil rights action.”
Hairston v. Grondolsky, 2008 WL
618805, *2 (D.N.J. March 3, 2008).
From a careful review of the petition, it is clear that
Wolter’s contentions of retaliatory mistreatment while confined
in the USP-Lewisburg SMU do not claim entitlement to speedier or
immediate release from custody nor do they challenge the
legality of his present incarceration.
Those claims simply do
not raise a claim related to the execution of his sentence as
contemplated in Woodall.
Rather, although Petitioner’s
4
allegations that he was verbally threatened; denied showers and
needed medical care; improperly housed with gang members;
subjected to false entries in his prison file; and physically
and sexually assaulted by USP-Lewisburg officials raise
violations of his constitutional rights they do not allege a
loss of good time credits or an improper extension of the length
of his confinement.
Thus, the purported constitutional misconduct did not
adversely affect the fact or duration of Wolters’ incarceration.
See Wapnick v. True, Civil No. 4:CV-97-1829, slip op. (M.D. Pa.
Dec. 17, 1997)(McClure, J.).
Accordingly, since “habeas corpus
is not an appropriate or available federal remedy” with respect
to those allegations they are subject to dismissal without
prejudice.
See Linnen v. Armainis, 991 F.2d 1102, 1109 (3d Cir.
1993).
Claim Preclusion
Respondent next asserts that while confined at USPLewisburg Petitioner was the subject of seven (7) disciplinary
proceedings.
The Respondent argues that claims pertaining to
three of those disciplinary proceedings were previously raised
before this Court by Wolters in a prior habeas corpus action and
therefore are subject to dismissal.
See Doc. 7, p. 2.
In Wolters v. Thomas, Civil NO. 3:CV-12-1115 this Court
addressed claims by Petitioner pertaining to: (1) Incident
5
Report (IR) 2262689, which was issued on or about February 1,
2012 and accused him with possession of a weapon; (2)
IR
2271147 was issued on or about February 21, 2012 which accused
him of bribery; and (3) IR 2301718 issued on May 9, 2012
charging him with extortion and insolence.
This Court agrees that since those disciplinary charges and
proceedings have already been raised before and addressed by
this Court in Wolters, Civil NO. 3:CV-12-1115 which was closed
on October 20, 2014, the instant petition to the extent that it
again challenges the legality of those same three misconducts is
subject to dismissal.
See Graham v. Warden, FCI-Allenwood, 2009
WL 326010 *1 (3d Cir. Oct. 13, 2009)(§ 2244(a) bars second or
successive challenges to the legality of detention including §
2241 petitions which challenge the execution of a federal
sentence); McCleskey v. Zant, 499 U.S. 467, 483 (1991) (a person
is precluded from raising a new claim in a subsequent habeas
petition that he could have raised in his first habeas
petition).
Administrative Exhaustion
Respondent next seeks dismissal of the four (4) remaining
disciplinary proceedings initiated against Petitioner at USPLewisburg on the grounds that Wolters failed to exhaust his
6
available administrative remedies.6
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 BOP has a well established
three (3) step
Administrative Remedy Program whereby a federal prisoner may
seek review of any aspect of his imprisonment.
542.10-542.19.
See 28 C.F.R. §§
After attempting to informally resolve the
6
With respect to one of those charges. IR 2385125, tearing
up clothing, Petitioner admitted his guilt and was not sanctioned
to a loss of good conduct time. See Sandin v. Conner, 515 U.S.
472, 480-84 (1995)(the due process safeguards set forth in Wolff
apply when the challenged disciplinary proceeding results in a loss
of good time credits).
The other three misconducts did culminate with Petitioner
being sanctioned to a loss of good conduct time.
7
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.”
See
28 C.F.R. § 542.14(a).
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
submitted a declaration under penalty of perjury by USPLewisburg Attorney Advisor Jennifer Knepper.
Exhibit 1.
See Doc. 7-1,
Attorney Knepper states that a review of the BOP’s
computerized index of administrative remedies reveals that since
8
Wolters has been in federal custody he has filed 235
administrative grievances.
See id. at ¶15.
However, Knepper’s declaration elaborates that since his
arrival at USP-Lewiburg, “Wolters has not filed any
administrative remedies concerning disciplinary proceedings.”
Id.
Based upon that failure, Respondent concludes that
Petitioner’s action is subject to dismissal on the basis of nonexhaustion.
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. 12, p. 4.
Those purported actions made “the
administrative remedy/appeal process unavailable.”
Id.
The pending § 2241 petition is dated February 19, 2013,7 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).
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
7
See Doc. 1, p. 12.
9
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 the
challenged misconduct charges.
Wolters does not dispute that he
knew how to pursue administrative relief.
See Doc. 40, p. 2.
Petitioner’s initiation of 235 administrative grievances also
supports a determination that he knew hos to utilize the BOP
grievance procedure.
Moreover, attached to Wolters’ reply is an exhibit which
indicates that after the filing of this action he initiated a
proper administrative grievance dated November 28, 2012.
Doc. 12-1, p. 12.
See
Based upon the above, Petitioner offers no
viable explanation as to why he failed to properly pursue
administrative relief
prior to the initiation of this action.
His submissions simply 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,
Petitioner’s documented history of pursuing BOP administrative
remedies, including at least one administrative grievance during
10
the period when he was allegedly being denied access to the
process undermines his vague request to be excused from the
exhaustion requirment.
Accordingly, the request for dismissal on the basis of nonexhaustion will be granted 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
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: NOVEMBER 20, 2014
11
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?