Tinsley v. Perdue

Filing 12

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 2/14/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
THEODORE TINSLEY,

:

Petitioner

:
CIVIL ACTION NO. 3:15-1296

v.

:
(Judge Mannion)

WARDEN R.A. PERDUE

:
:

Respondent
MEMORANDUM
I. Background
On July 1, 2015, the Petitioner, an inmate at the Federal Correctional
Institution at Schuylkill, (“FCI-Schuylkill”), Minersville, Pennsylvania, filed the
instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. (Doc.
1). After receipt of the appropriate filing fee, on September 28, 2015, an order
to show cause was issued. (Doc. 3). A response to the petition was filed on
October 19, 2015. (Doc. 4). On November 20, 2015, the Petitioner filed a reply
brief. (Doc. 7).
The Petitioner claims in the instant action that he was not afforded due
process in relation to his disciplinary proceedings and that the requirements
of the Administrative Procedure Act, (“APA”), were violated by way of the
monetary sanction. (Doc. 1). As relief, he requests that this Court order his

good time credits and institutional privileges be restored, declare that the
monetary fine is invalid and be restored to his inmate account, and expunge
the conviction stemming from the September 2, 2014, urinalysis from his
record. Id. Petitioner further seeks a declaratory judgment that the BOP
regulation which allows for the imposition of a monetary fine violates the APA
and the Due Process Clause. Id.
By Memorandum and Order dated May 3, 2016, Tinsley’s petition was
dismissed for Tinsley’s failure to exhaust administrative remedies. (Docs. 8,
9). Presently before the Court is Petitioner’s motion for reconsideration of this
Court’s May 3, 2016 Memorandum and Order. (Doc. 10). For the reasons set
forth below, Petitioner’s motion for reconsideration will be denied.

II.

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), cert.
denied, 476 U.S. 1171 (1986). Accordingly, a party seeking reconsideration
must demonstrate at least one of the following grounds prior to the court

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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. 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 is appropriate in instances where the court has
“...misunderstood a party, or has made a decision outside the adversarial
issues presented to the Court by the parties, or has made an error not of
reasoning, but of apprehension.” See Rohrbach v. AT & T Nassau Metals
Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other
grounds on reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996), quoting Above
the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va.
1983). It 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 sparingly.”
Continental Casualty Co. v. Diversified Indus. Inc., 884 F. Supp. 937, 943

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(E.D. Pa. 1995).
A review of the Court’s May 3, 2016, Memorandum and Order reveals
the following with respect to this Court’s decision to dismiss the instant
Petition for writ of habeas corpus:
Federal prisoners are generally required to exhaust administrative
remedies prior to seeking a writ of habeas corpus pursuant to
§2241. See Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760
(3d Cir. 1996). Where a petitioner has failed to exhaust his
administrative remedies due to a procedural default, and the
default renders the administrative process unavailable,
consideration of a §2241 claim is barred unless the petitioner can
show cause and prejudice. Speight v. Minor, 245 Fed. App’x 213,
215 (3d Cir. 2007). However, the Third Circuit has also “held that
the administrative exhaustion requirement in this context may be
excused if an attempt to obtain relief would be futile or where the
purposes of exhaustion would not be served.” Cerverizzo v. Yost,
380 Fed. App’x 115, 116 (3d Cir. 2010) (citations omitted).
The BOP’s well-established multi-tier administrative remedy
program is set forth in 28 C.F.R. §§542.10-542.19. Pursuant to
the program’s provisions, appeals of DHO decisions must be
submitted initially to the Regional Director for the region where the
inmate is housed within twenty days of the DHO decision. 28
C.F.R. §§542.14(d)(2), 542.15(a). Once an appeal is filed to the
Regional Director, a response is due by the Regional Director
within thirty calendar days, and if no response is received within
that time, the inmate may consider the absence of a response to
be a denial. Id. at §542.18. If the inmate is not satisfied with the
Regional Director’s response, he may submit an appeal to the
General Counsel (Central Office) within thirty calendar days of the
date the Regional Director signed the response. Id. at §542.15(a).
An appeal to the General Counsel is the final administrative
appeal. Id. Completion of an appeal to the General Counsel
constitutes exhaustion of administrative remedies. See Lindsey v.
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Thomas, 2014 WL 3890005, at *5 (M.D.Pa. Aug. 8, 2014). Once
an appeal is filed with the General Counsel, a response shall be
made in forty calendar days. 28 C.F.R. §542.18. Again, if a
response is not received within this time, the inmate may consider
the absence of a response to be a denial. Id.
In his reply brief, the petitioner does not deny that he did not file
a final appeal with the General Counsel, but argues that he did
not do so because he never received the denial of his appeal from
the Regional Office. He claims, therefore, that administrative
remedies were not available to him because he did not know to
file an appeal to the General Counsel. As discussed, the record
demonstrates that the petitioner’s Regional Office appeal was
denied on November 7, 2014. However, even if for some reason
the petitioner did not receive a copy of the denial, as set forth
above, the regulations provide that an absence of a response
within the required time is to be construed by the inmate as a
denial, and the petitioner should have proceeded accordingly to
fully exhaust his administrative remedies. The petitioner took no
action to fully exhaust his administrative remedies and offers no
valid explanation for his failure to follow the well-established
administrative regulations.1
(Doc. 8, Memorandum at 5-7).
Petitioner makes two arguments in his motion for reconsideration. First,
he claims that pursuant to the Sixth Circuit’s holding in Risher v. Lappin, 639

1

The petitioner cites to the case of Small v. Camden, 728 F.3d 265 (3d
Cir. 2013) for the proposition that the failure of prison officials to provide a
timely response to a grievance renders an administrative remedy unavailable.
However, Small is distinguishable from the instant action in that the inmate in
Small was housed at a local county correctional facility, which had in place
different administrative procedures. Here, the BOP has in place wellestablished administrative procedures, which direct that an inmate may deem
denied any response which is not received in a timely manner.
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F.3d 236, (6th Cir. 2011), this Court should find that Petitioner was prevented
from exhausting his administrative remedies. Additionally, Petitioner claims
that, pursuant to Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3rd Cir.
2005), exhaustion is not required, because he is challenging the
constitutionality of the BOP’s regulation regarding monetary fines as sanctions
for misconduct. (Doc. 11).
In Risher, after failing to receive a response from the Regional Director
in the time allotted for a reply, the Plaintiff filed an appeal with the General
Counsel, explaining that the time for an answer from the Regional Director
expired and that he had not received a response. Risher, 639 F.3d at 239.
The General Counsel’s office rejected Risher’s appeal because he failed to
include copies of his appeal to the Regional Director and the Regional
Director’s response. Id. The rejection notice indicated that Risher could
resubmit his appeal within fifteen days and that the Regional Director had in
fact responded to Risher’s appeal on August 14, 2007. Id.
On appeal to the Sixth Circuit from the District Court’s grant of summary
judgment to Defendants, the Appellate Court found the following:
In this case, Risher did not attempt to bypass the administrative
grievance process detailed above; he affirmatively endeavored to
comply with it. The Bureau’s failure to deliver the Regional
Director’s response to Risher, however, prevented him from
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submitting that response to the Central Office along with his
BP–11 form. Risher nonetheless attempted to follow the Bureau's
regulations by treating the Regional Director’s failure to respond
to his appeal as a denial, as he was instructed he could do by 28
C.F.R. §542.18, and appealing that denial to the Central Office.
Risher explained to the Central Office that he had received no
response to his appeal at the third tier of review.
Under the circumstances, Risher’s efforts were sufficient. It is well
established that “administrative remedies are exhausted when
prison officials fail to timely respond to a properly filed grievance.”
Boyd v. Corr. Corp. of Am., 380 F.3d 989, 996 (6th Cir.2004)
(citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002);
Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002).
Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011).
This Court finds the Sixth Circuit’s holding in Risher distinguishable in
that, as the Sixth Circuit indicated, Risher affirmatively endeavored to comply
with the grievance process. Here, Tinsley made no further attempt to exhaust
his administrative remedies when no response to his Regional appeal was
received. Thus, the Court finds Risher inapplicable, as it is clear that the
Petitioner, in the instant action, is clearly attempting to bypass the grievance
process by not following through with the grievance process and then trying
to argue that he has been prevented from exhausting. Once again, the
regulation clearly indicates that if a response is not received within this time,
the inmate may consider the absence of a response to be a denial. 28 C.F.R.
§542.18. At that point, Tinsley’s course of action, just like Risher, was to file
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an appeal to the Central Office. Tinsley clearly failed to affirmatively endeavor
to comply with the grievance process.
Petitioner’s failure to satisfy the procedural rules of the BOP's
administrative remedy program thus constitutes a procedural default, as “no
administrative appeal is considered finally exhausted until a decision is
reached on the merits by the BOP’s Central Office.” Miceli v. Martinez, No.
08–1380, 2008 WL 4279887, 2 (M.D. Pa. Sept. 15, 2008); see also Moscato,
98 F.3d at 760 (“[F]ailure to satisfy the procedural rules of the Bureau's
administrative process constitutes a procedural default.”). Therefore, in a case
such as this, where the petitioner has failed to exhaust his administrative
remedies due to a procedural default thus rending unavailable the
administrative process, review of the merits of his habeas claims is barred
absent a showing of “cause and prejudice” to excuse the procedural default.
Moscato, 98 F.3d at 761.
To demonstrate “cause” for a procedural default, the petitioner must
show that “some objective factor external to the [petitioner’s] defense impeded
[his] efforts to comply with [a] procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). “Examples of external impediments which have been found
to constitute cause in the procedural default context include ‘interference by

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officials,’ ‘a showing that the factual or legal basis for a claim was not
reasonably available to counsel,’ and ‘ineffective assistance of counsel.’” Wise
v. Fulcomer, 958 F.2d 30, 34 n.9 (3d Cir. 1992) (quoting McCleskey v. Zant,
499 U.S. 467, 494 (1991)). To establish “actual prejudice,” the petitioner must
show “not merely that the errors ... created a possibility of prejudice, but that
they worked to his actual and substantive disadvantage.” Carrier, 477 U.S. at
494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
The Court finds that Tinsley has not met that burden. He has failed to
demonstrate any reason as to why this Court should excuse his default. In his
reply, he argues that he did exhaust his claims because “it would have been
futile for [him] to appeal to the Central Office without the Regional Director’s
response, because such a submission would have been rejected.” (Doc. 11
at 5). Such argument does not serve as cause sufficient to excuse the
procedural default. Accordingly, in the absence of any showing of cause
sufficient to excuse his procedural default, the petition will be denied on the
ground that Tinsley’s federal habeas claims are barred by procedural default.
Finally, Petitioner claims that pursuant to Woodall v. Fed. Bureau of
Prisons, 432 F.3d 235 (3rd Cir. 2005), exhaustion is not required where an
inmate is attacking the constitutionality of a prison policy. Again, Petitioner’s

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argument is clearly without merit.
In Woodall, a federal prisoner challenged the validity of BOP regulations
that limited an inmate’s placement in a halfway house to the lesser of ten
percent of the inmate’s total sentence or six months (28 C.F.R. §§570.20-21
(2005). He did not exhaust his administrative remedies, but argued that he
was not required to do so because exhaustion would be futile. The district
court agreed, stating: “[E]xhaustion of administrative remedies is not required
where exhaustion would not promote” the goals of the doctrine. Woodall v.
Federal Bureau of Prisons, No. 05-1542, 2005 WL 1705777 * 6 (D.N.J. July
20, 2005) (citing Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998) and
Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988)). It concluded:
Here, it does not appear that there is any need to develop a
factual record. Nor does this matter require application of the
agency's particular expertise. Woodall does not challenge the
application of the BOP's ten-percent rule to him, but challenges
whether the ten-percent rule legally implements the statute
pursuant to which it was promulgated. This is a question within
the expertise of courts [under Chevron]. Accordingly, the
purposes of the exhaustion requirement would not be served by
requiring Woodall to exhaust his administrative remedies.
Id. The United States Court of Appeals for the Third Circuit subsequently
affirmed the district court’s resolution of the issue. Woodall, 432 F.3d at 239
n.2. It held that because “the purposes of exhaustion would not be served

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here by requiring Woodall to exhaust his administrative remedies[,]” he was
excused from the requirement. Id.
In contrast to Woodall, where exhaustion was futile because the court
could confidently predict that the petitioner would not receive relief through the
administrative process since the BOP was not going to deviate from its
regulations, this Court cannot with certainty predict how the BOP’s Regional
Director and General Counsel’s Office would have ruled on the Petitioner's
administrative appeal if he had filed one challenging the BOP policy at issue
in this case.
As such, Petitioner presents no evidence that this Court misunderstood
or misinterpreted the law as it applies to his situation. Tinsley’s petition was
properly dismissed. Accordingly, this Court finds that its Memorandum and
Order of May 3, 2016, is not troubled by manifest errors of law or fact and
Petitioner has not presented anything new, which if previously presented,
might have affected our decision. Consequently, the motion for
reconsideration will be denied. An appropriate order shall follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated:

February 14, 2017

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