Long v. Wilson
Filing
9
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/29/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
BRANDON LONG,
Petitioner,
v.
Civil Action No.
3:11CV602
ERIC WILSON,
Respondent.
MEMORANDUM OPINION
Brandon Long,
a federal prisoner proceeding pro se,
brings
this petition for a writ of habeas corpus pursuant to 28 U.S.C.
§
2241
("§
Bureau
of
6)
Petition") .
Prisons
sentence.
No.
2241
("BOP")
has not replied.
miscalculated
information
for Summary Judgment
asks
the
Court
submitted outside
Rules
of
dismissal
under
pleadings
are
Civil
12(b)(6)
presented
and
Stanton,
671
Respondent's
the
Rule
one
405
U.S.
669,
Motion
for
already before the Court,
will be denied.
to
the
the
length
(Docket No.
if
and
not
decide
this
pleadings.
Procedure,
motion must be treated as
6)
that
Federal
of
his
7) .
Long
The matter is ripe for disposition.
Respondent
No.
contends
Respondent has filed both a Motion to Dismiss (Docket
and a Motion
Federal
Long
a
if
matter
According
party
has
matters
excluded
by
Summary
(per
Judgment
to
the
moved
for
outside
the
Court,
the
the
for summary judgment.
(1972)
Carter v.
curiam).
(Docket
using
Because
No.
Respondent's Motion to Dismiss
7)
is
(Docket
I.
SUMMARY OF RELEVANT ALLEGATIONS
Long's claim,
On
or
in its entirety, reads as follows:
about
the
below
stated
dates,
"Federal Custody" and therefore should be
I
was
in
entitled to
receive (JTC) Jail Time Credit for said days:
From
09/08/2008 through 09/09/2008 I was at (D.O.C.) in
Baltimore, MD; From 09/09/2008 through 09/11/2008 I
was at (M.C.A.C.) in Baltimore, MD; From 09/11/2008
through 12/04/2008 I was at Wicomico County Detention
Center
in
Baltimore,
MD;
From 12/08/2008
through
12/18/2008 I remained at (M.C.A.C.) in Baltimore, MD.
I
have not been awarded credit
(§ 2241 Pet.
8
for said dates.
(spacing and spelling corrected).)
that the Court order the BOP to "credit
on said dates."
[Long]
Long requests
for time
served
(Id.)
II.
STANDARD
FOR SUMMARY
JUDGMENT
Summary judgment must be rendered "if the movant shows that
there
is
movant
Civ.
no
is
P.
genuine
dispute
entitled to
56(a).
to
motion,
and
identify
Celotex
any
material
a matter
of
fact
and
the
Fed.
R.
law."
It is the responsibility of the party seeking
judgment
See
to
judgment as
summary
demonstrate
as
to
the
inform
absence
Corp.
v.
of
the
court
parts
the
a
of
of
the
record
which
issue
of
material
fact.
U.S.
317,
genuine
Catrett,
477
basis
323
for
the
(1986).
"[W]here the nonmoving party will
bear
trial
summary
judgment motion may
solely
on
on a dispositive
properly
be
depositions,
made
answers
in
to
issue,
a
reliance
the
the
interrogatories,
burden of proof
and
the
at
pleadings,
admissions
on
file."
Id. at 324 (internal quotation marks omitted).
When the
motion is properly supported, the nonmoving party must go beyond
the
pleadings
and,
by
citing
answers to interrogatories,
^specific
facts
trial.'"
Id.
(1986)).
showing
there
(quoting former
district court
Fed.
'"Rule
a duty to
or
'"depositions,
and admissions on file,'
that
Additionally,
affidavits
sift
is
R.
56
a
genuine
Civ.
does
P.
not
through the
designate
issue
56(c)
and
impose
for
56(e)
upon
the
record in search of
evidence to support a party's opposition to summary judgment.'"
Forsyth
Skotak
Cir.
v.
v.
Barr,
see
only
F.3d
1527,
1537
Resins,
Tenneco
1992));
consider
19
Inc.,
953
Fed.
the
R.
cited
Civ.
P.
materials,
(5th
F.2d
Cir.
909,
56(c)(3)
but
1994)
it
915
&
n.7
(5th
court
("The
may
(quoting
need
consider
other
materials in the record.").
Respondent
because
Because
the
the
failed
Long
asks
to
lack of
(2007).
of
dismiss
his
the
§
2241
administrative
administrative
Petition
remedies.
remedies
is
an
Respondent bears the burden of pleading and
exhaustion.
In support
to
exhaust
exhaustion
affirmative defense,
proving
Court
of his
Jones
v.
Bock,
contention,
549
U.S.
Respondent
199,
216
submits
the
affidavit of Lynnell Cox, a Paralegal Specialist at the Federal
Correctional
Mot.
Summ.
Affidavit
Complex
J.
are
Ex.
copies
in
2
Butner,
("Cox
of
North
Carolina.
Aff.").)
Long's
various
Attached
(Mem.
to
Supp.
the
Administrative
Cox
Remedy
Requests
and
the
BOP's
responses
thereto.
Respondent's
exhaustion argument relies on the BOP's "specific procedures for
an inmate to request review of his [or her] sentence computation
and to request additional jail credit."
(Mem. Supp.
J.
codified
6.)
These
specific
procedures
are
Mot.
Summ.
28
C.F.R
at
§§ 542.10-542.19.
Long submits only his sworn § 2241
and
the
attached
copies
of
his
Petition
grievances.
foregoing principles and submissions,
(Docket No.
In
light
of
1)
the
the facts set forth below
are established for purposes of the Motion for Summary Judgment.
III.
A.
BOP's
SUMMARY OF PERTINENT
Grievance Procedure
The BOP manages
an
inmate
aspect
to
of
seek
his/her
own
inmates
credit,
such as Long,
issue.
28
an Administrative Remedy Program "to allow
formal
Federal
the
FACTS
review
of
an
confinement."
wishing
to
request
must
C.F.R.
§
issue
28
C.F.R.
additional
first attempt to
542.13(a).
satisfied with the informal resolution,
relating
If
§
to
any
542.10(a).
prior
custody
informally resolve
the
inmate
is
not
the inmate must submit a
formal written Administrative Remedy Request
("ARR") within "20
calendar
the
Request
days
following
occurred."
28
the
date
C.F.R.
on
which
§ 542.14(a).
basis
The
for
Warden
the
then
issues
the
first
level
inmate
who
response
to
the
ARR.
28
C.F.R.
§ 542.11(a).
An
is
not
satisfied
with
the
Warden's
response may submit an Appeal on the appropriate form
(BP-10) to the appropriate Regional Director within 20
calendar days of the date the Warden signed the
response. An inmate who is not satisfied with the
Regional Director's response may submit an Appeal on
the appropriate form (BP-11) to the General Counsel
within 30 calendar days of the date the Regional
Director signed the response. . . .
Appeal to the
General Counsel is the final administrative appeal.
28 C.F.R.
§ 542.15(a).
B.
Long' s ARRs
On August 14,
2009,
the BOP received Long's first properly
filed ARR complaining that the BOP miscalculated his jail credit
("First ARR").
Warden
denied
awarded
the
Maryland."
Regional
(§ 2241 Pet.
the
time
the
ARR
27,
2009,
the
state
had
towards
his
state
sentence
question
! 6.)
On August
"because
the
already
in
Long appealed the First ARR to the
(Id^ at If 7-8.)
Director.
of
Director
in
(Cox Aff.
Regional Director,
appeal
First
13. J1
On October 1,
2009, the
echoing the Warden's reasoning, denied Long's
First
ARR.
advised Long that
(§
he
2241
Pet.
could appeal
9.)
this
The
Regional
denial
to
the
1 Long attached copies of his various ARRs to his § 2241
Petition but
failed to
separately number these
documents.
Accordingly, citations to Long's attachments will reference the
page numbers assigned by the Court's CM/ECF system.
General Counsel.
Aff.
(Id. )
Long did not pursue an appeal.2
(Cox
SI 10.)
On March
ARR")
23,
mirroring
Warden
denied
(Id. SI 9.)
2011,
his
the
Long
submitted
requests
stated
Second ARR
as
in
the
repetitive
First
on
("Second
ARR.
April
Long failed to appeal the Second ARR.
IV.
A.
a second ARR
The
1,
2011.
(Id. SI 10.)
ANALYSIS
Exhaustion
"Exhaustion is an important doctrine in both administrative
and
habeas
law
.
(2006).
Prior
properly
.
exhaust
.
to
."
Woodford
seeking
his
or
v.
judicial
her
Ngo,
548
relief,
U.S.
an
administrative
81,
inmate
v.
U.S.
Little
Supreme
90 F. App'x 444, 445
Bureau
v.
of
Prisons,
Hopkins,
Court
638
with
an
procedural
rules,"
(4th Cir. 2004)
F.3d
F.2d 953,
explains
compliance
243
that
953-54
634
This
deadlines
548
U.S.
and
McCaughtry,
286
F.3d
1022,
1024
(7th
Cir.
Id.
Cir.
2001);
1981)).
other
90,
agency addresses the issues on the merits.'"
v.
(2d
exhaustion
at
McClung
(citing Carmona
(6th Cir.
"[p]roper
agency's
Woodford,
629,
must
remedies.
requirement extends to inmates filing § 2241 petitions.
v. Shearin,
88
"'so
The
demands
critical
that
the
(quoting Pozo
2002)).
An
2 Long states that he failed to pursue an appeal to the
General
General
Counsel
Counsel
"[b]ecause
would
Director's decisions."
go
I
did'nt
against
(§ 2241 Pet.
[sic]
the
6.)
think
warden's
the
and
Office
of
Regional
inmate's
failure
to
properly
exhaust
the
administrative
grievance process prior to filing his or her habeas petition
renders the unexhausted claims procedurally defaulted.
90
F.
App'x
excused
at
a
upon
445-46.
showing
(citing Carmona,
Generally,
First,
its
the exhaustion
with
it
is
haled
'disregard
of
[the
promotes
145
The
Here,
in
and
may
prejudice.
requirement
an agency
respect
into
to
only
be
at
445
Id.
programs
court,'
two purposes.
548
administers
discourages
Second,
U.S.
(quoting McCarthy
it
it
and
procedures.'
Woodford,
original)
serves
'an opportunity to correct
the
federal
agency's]
efficiency."
alteration
cause
default
243 F.3d at 634-35) ) .
mistakes
before
proper
of
"[e]xhaustion gives
own
140,
This procedural
McClung,
v.
at
exhaustion
89
(second
Madigan,
503
U.S.
(1992)).
applicable
prison
exhaustion."
because
rules
"define
Jones
Bock,
failed
Long
v.
to
seek
549
a
the
boundaries
of
U.S.
199,
218
(2007).
review
from
the
General
Counsel for the First ARR or from the Regional Director for the
Second
ARR,
Yannucci
(E.D.
RBH,
548
Va.
v.
he
failed
Stansberry,
July 28,
at
90.
at
exhaust
No.
2009);
2009 WL 2430662,
U.S.
to
his
2:08CV561,
Barnhardt v.
*3
(D.S.C. Aug.
administrative
2009
WL
remedies.
2421546,
Mitchell,
6, 2009);
No.
at
*3
0:09-1452-
see Woodford,
B.
Cause And Prejudice
Failure
to
exhaust
administrative
remedies
F. App'x at 445 (citing Carmona,
of
administrative
circumstances
fully
pursuing
the
his
"[w]hen
prisoner's
.
90
.
control
administrative
prejudice doctrine]
be
243 F.3d at 634).
exhaustion,
beyond
only
See McClung,
excused upon a showing of cause and prejudice.
.
remedies,
the
remedies
no
irreparable
relief;
(3)
certain
genuine
injury
may
administrative
instances
a
2003)
Here,
an
him
from
[cause
and
occur
appeal
for
without
"(1)
available
adequate
relief;
immediate
would
be
has
raised
Beharry v.
Carmona,
futile;
a
Ashcroft,
judicial
and
(4)
in
substantial
329 F.3d 51,
62
(internal quotation marks omitted).
Long admits that he affirmatively chose not to pursue
Long's
belief
that such an appeal would be unsuccessful notwithstanding
(id.),
he
appeal
opportunity
plaintiff
constitutional question."
(2d Cir.
legitimate
excuses this failure to exhaust."
Cause and prejudice requires:
(2)
In the case
preclude
243 F.3d at 634.
provide
can
of
the
First
ARR.
(§ 2241
Pet.
6.)
fails to demonstrate cause and prejudice.
Beharry,
329 F.3d
at 62 ("That [Petitioner's]
argument would likely have failed is
not
that
tantamount
raise
it .
unexhausted
.
to
.
and
stating
.").
he
it
would
Accordingly,
fails
to
show
have
because
cause
been
futile
to
Long's
claim
is
and
prejudice,
Respondent's Motion for Summary Judgment
(Docket No. 7)
will be
granted and Long's claim will be denied.
V.
Respondent's
Motion
CONCLUSION
to
Dismiss
(Docket
No.
denied.
Respondent's Motion for Summary Judgment
will
granted.
the
be
§ 2241
Long's
Petition
claim will
(Docket
No.
be
1)
denied
will
be
6)
will
be
(Docket No.
7)
with
prejudice,
denied,
and
the
action will be dismissed.
The
Clerk
is
directed
to
send
a
copy
of
this
Memorandum
Opinion to Long and counsel of record.
/s/
fi.iP
Robert E. Payne
Date:
/^Itf* ^^t^Zoft^
Richmond, Virginia
Senior United States District Judge
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