Opinion
CV-21-02200-PHX-DLR (MTM)
08-29-2022
Muntu Akili, Petitioner, v. RA Heisner, Warden, Respondent.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey United States Magistrate Judge
Petitioner has filed a First Amended Petition for a Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241. Doc. 18.
I. SUMMARY OF CONCLUSION
Petitioner claims a violation of due process in the loss of good-time credit and other sanctions. Petitioner is not entitled to relief because he failed to exhaust his administrative remedies. The Court recommends the Petition be denied and dismissed without prejudice.
II. BACKGROUND
Petitioner is incarcerated at the Federal Correctional Institution in Phoenix, Arizona (“FCI Phoenix”) pursuant to a sentence imposed by the Western District of Pennsylvania. Doc. 26-1 at 3, 8. Petitioner was previously incarcerated at the Federal Correctional Complex in Lompoc, California (“FCC Lompoc”) until his transfer to FCI Phoenix in August 2021. Id. at 3, 14. The Petition regards disciplinary sanctions imposed during Petitioner's incarceration at FCC Lompoc. Doc. 18.
III. DISCIPLINARY PROCEEDING
A. Overview of the Disciplinary Process
The Federal Bureau of Prisons (“BOP”) is authorized to “provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States.” 18 U.S.C. § 4042 (a)(3). BOP staff is authorized to impose sanctions on inmates who commit “prohibited acts.” 28 C.F.R. § 541.1. The prohibited acts are set forth in 28 C.F.R. § 541.3 and divided into categories based on severity: “Low,” “Moderate,” “High,” or “Greatest.” Id. § 541.3, Table 1. Section 541.3 also sets forth the sanctions available for each category. Id. For prisoners sentenced under the Prison Litigation Reform Act (“PLRA”)-i.e., on or after April 26, 1996-loss of good-time credit is a mandatory sanction for any disciplinary violation; the amount lost depends on the severity of the violation. Id. § 541.4(a)(2), (b).
The discipline process begins when BOP staff “witness or reasonably believe” that a prisoner has committed a prohibited act. 28 C.F.R. § 541.5(a). An “incident report” documents the prohibited act(s) charged. Id. A prisoner “will ordinarily receive the incident report within 24 hours of staff becoming aware of [the prisoner's] involvement in the incident.” Id. A BOP staff member will investigate the incident and inform the prisoner of the charges and his rights, including the right to “remain silent at all stages of the discipline process.” Id. § 541.5(b)(1). The prisoner “may give an explanation of the incident, request any witnesses be interviewed, or request that other evidence be obtained and reviewed.” Id. § 541.5(b)(2).
Once the investigation is complete, a Unit Discipline Committee (“UDC”) will review the incident report. Id. § 541.7. If the prisoner is charged with a “High” or “Greatest” severity offense, the UDC will refer the incident report to a Discipline Hearing Officer (“DHO”) as a matter of course. Id. § 541.7(a)(4).
After the prisoner has received written notice of the charges, the DHO will hold a hearing during which the prisoner may make a statement and present documentary evidence. Id. § 541.8(c), (f). The prisoner may also request witnesses to testify on his behalf. Id. § 541.8(f)(3). The DHO may deny this request “if, in the DHO's discretion, [the witnesses] are not reasonably available, their presence at the hearing would jeopardize institution security, or they would present repetitive evidence.” Id.
The DHO “will consider all evidence presented during the hearing.” Id. § 541.8(f). The DHO may find the prisoner did or did not commit the prohibited act(s) charged, “and/or a similar prohibited act(s),” or refer the matter for further investigation or review. Id. § 541.8(a). If the DHO finds the prisoner committed a prohibited act(s), the DHO may impose sanctions in accordance with Section 541.3. Id. § 541.8(g). The DHO will set forth their findings and conclusions in a written report that is delivered to the prisoner. Id. § 541.8(h). The DHO's report must document: whether the prisoner was advised of his rights, the evidence relied upon, the decision, the sanction(s) imposed, and the reason(s) for the sanction(s). Id. The decision must be “based on at least some facts and, if there is conflicting evidence, on the greater weight of the evidence.” Id. § 541.8(f).
The prisoner may appeal the DHO's decision through the BOP Administrative Remedy Program. 28 C.F.R. § 541.8(i). The process begins with an appeal to the Regional Director of the region where the prisoner is located. Id. § 542.14(d)(2). The next and “final administrative appeal” is an appeal to the General Counsel. Id. § 542.15(a).
In most cases, the administrative remedy process begins with an attempt to resolve the issue through informal resolution followed by submission of a formal written administrative remedy request to the warden. 28 C.F.R. §§ 542.13, 542.14. DHO appeals are one of the exceptions to the general administrative remedy process. See id. § 542.14(d).
B. Petitioner's Disciplinary Proceeding
On March 11, 2021, the supervisory chaplain at FCC Lompoc, Andrew Pak, wrote an incident report charging Petitioner with threatening staff/Code 203, a “High” severity offense, which stated:
See 28 C.F.R. § 541.3, Table 1.
On March 8, 2021 at approximately 10:40 AM, I went to talk to IM Akili, Mtu #35039-060 to discuss about the BP-9 which he had previously submitted. During our conversation, he became extremely aggressive and
had a loud voice of yelling. Then, looking at me, he said, “when I'm out, I will come get you.” Based on inmate's agitated state and demeanor, I thought his intention was to harm me physically.Doc. 26-1 at 4, 28 (Incident Report No. 3481967). An investigating officer delivered the incident report to Petitioner that same day and advised Petitioner of his rights, including his right to remain silent, which Petitioner stated he understood. Id. at 4, 29. According to the report, Petitioner told the investigating officer, “I didn't threaten the Chaplain, I told him I was coming after his position because he was violating my religious rights.” Id. at 29. The report was forwarded to the UDC. Id.
A month before the incident at issue, Petitioner had filed an administrative remedy alleging that Chaplain Pak had violated his religious rights by refusing to purchase certain religious beads for him. Doc. 18 at 17, 40-41. “BP-9” refers to the form used for submitting an initial administrative remedy request. 28 C.F.R. § 542.14(a).
This report was a rewrite of a report drafted on March 8, 2021. Doc. 26-1 at 4 n.2, 27.
On March 12, 2021, Petitioner stated to the UDC, “Not guilty, it didn't happen, I told [Chaplain Pak] I wanted his job.” Id. at 5, 28. The UDC referred the matter to a DHO. Id. at 28. That same day, Petitioner signed a notice informing him of the upcoming disciplinary hearing and his rights. Id. at 30-31. Petitioner waived his right to call witnesses and requested a staff representative. Id. at 30, 32.
On March 17, 2021, DHO McIlrath conducted the disciplinary hearing. Id. at 5, 1921. Petitioner pled not guilty and stated, “I did not threaten to hurt [Chaplain Pak], I only told him I was going after his job” Id. at 19, 21. The DHO found Petitioner guilty “based on the greater weight of evidence.” Id. at 5-6, 19-21. The DHO revoked 27 days of goodconduct time; imposed 30 days of disciplinary segregation; and suspended commissary, telephone, and visitation privileges for 90 days. Id. at 6, 21. Petitioner received a copy of the DHO's decision the next day and was advised of his right to appeal pursuant to the administrative remedy procedure. Id. at 6, 21.
C. Petitioner's Administrative Remedies
Petitioner appealed the DHO's decision to the Regional Director of the Western Regional Office (Remedy No. 1079438-R1). Doc. 26-2 at 6, 9. The appeal was rejected due to non-compliance with formatting rules. Id. at 6, 9, 13. Petitioner resubmitted it (Remedy No. 1079438-R2). Id. at 6, 9, 14. The Regional Director accepted it but denied it because sufficient evidence supported the DHO's findings and Petitioner's due process rights had been preserved. Id. at 6, 9, 16. Petitioner filed two additional appeals with the Regional Director, which were rejected for being filed at the wrong level of review (Remedy Nos. 1079438-R3, 1079438-R4). Id. at 6, 10.
Petitioner appealed to the Office of General Counsel (Remedy No. 1079438-A1). Id. at 6-7, 11, 17. The appeal was rejected due to non-compliance with formatting rules. Id. at 6-7, 18 (“All four pages of your (BP-9) (BP-10) (BP-11) form must be legible and worded the same. Photocopies of the form will not be accepted.”). The rejection notice stated Petitioner could resubmit his appeal in proper form within 15 days of the notice. Id. Petitioner did not resubmit his appeal. See id. at 7.
The BP-9, BP-10, and BP-11 forms are the forms used for the initial filing of a formal written administrative remedy request, an appeal to the Regional Director, and an appeal to the General Counsel, respectively. See 28 C.F.R. §§ 542.14(a), 542.15(a).
IV. PETITION FOR WRIT OF HABEAS CORPUS
Petitioner asserts three grounds for expungement of the disciplinary report and restoration of his good-time credit and other privileges, which were summarized in the Court's March 1, 2022 Service Order as follows:
In Ground One, Petitioner contends the finding of guilty was “an abuse of discretion and cruel and unusual punishment” because there was insufficient evidence to support the finding.
In Ground Two, Petitioner claims that the Disciplinary Hearing Officer violated his Sixth Amendment right to call witnesses on his behalf and that he was prejudiced because he was not allowed to have his “opposed version of the incident heard on [the] record.”
In Ground Three, he alleges that a “rewrite of the Incident Report 3 days after the alleged incident, without evidence of any new facts, or further investigation, was outside the 24-hour time frame for bring writeup” and violated his due process rights and the “constitutional safeguard against having lingering effects over the accused.”
Petitioner contends he has exhausted his administrative remedies by presenting these issues to the Office of General Counsel.Doc. 19 at 2; see Doc. 18.
Respondent's Answer asserts that the Petition should be dismissed because Petitioner failed to exhaust his administrative remedies and fails to show a violation of his due process rights. Doc. 26. Petitioner filed a reply. Doc. 29.
V. RELIEF UNDER 28 U.S.C. § 2241
Habeas relief is available for a prisoner “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “The ‘in custody' requirement is satisfied if the petitioner seeks release from custody or, at least, a reduction in the length of his sentence.” Lewis v. Howard, No. CV-21-00043-TUC-DCB (LAB), 2022 WL 837533, at *1 (D. Ariz. Feb. 7, 2022), adopted by 2022 WL 836813 (D. Ariz. Mar. 21, 2022); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus.”).
A challenge to the loss of good-time credit is cognizable in a § 2241 petition because the loss affects the duration of confinement. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (“Habeas corpus jurisdiction is available under 28 U.S.C. [§] 2241 for a prisoner's claims that he has been denied good time credits without due process of law.” (citing Preiser, 411 U.S. at 487-88)), overruled on other grounds by Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016); Alexander v. Schleder, 790 F.Supp.2d 1179, 1185 (E.D. Cal. 2011) (“If a constitutional violation has resulted in the loss of time credits, such violation affects the duration of a sentence, and the violation may be remedied by way of a petition for writ of habeas corpus.”).
However, challenges to disciplinary sanctions which do not affect the fact or duration of confinement are noncognizable in a § 2241 petition. See Nettles, 830 F.3d at 929 (“[T]he scope of habeas is limited to claims in the core of habeas and does not extend to a claim that does not necessarily challenge the validity or duration of the underlying conviction or sentence.”); Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (“[H]abeas jurisdiction is absent . . . where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence.”); Hunter v. Thomas, 2012 WL 5984662, at *2 (D. Or. Oct. 23, 2012) (“[Habeas corpus is the appropriate remedy where the disciplinary sanction levied will likely have an adverse impact on the duration of the inmate's sentence. Where the execution of the inmate's sentence is not affected by a disciplinary conviction, a civil rights action is the appropriate vehicle by which to expunge the resulting sanctions.” (citing Ramirez, 334 F.3d at 858-59)).
See, e.g., Everett v. Clark, 52 Fed.Appx. 959, 960 (9th Cir. 2002) (“Everett . . . only requested relief for his time in segregation and loss of commissary and therefore failed to state a cognizable claim under section 2241.”); Lewis, 2022 WL 837533, at *2 (“[A] claim that addresses only a petitioner's conditions of confinement does not satisfy the ‘in custody' requirement [of § 2241] and is not cognizable.”); Cobb v. Howard, No. CV-20-00515-TUC-LCK, 2021 WL 5850885, at *2 (D. Ariz. Dec. 9, 2021) (no § 2241 jurisdiction for loss of telephone privileges); Strouse v. Shartle, No. CV-16-00237-TUC-RCC (EJM), 2017 WL 2224926, at *3 (D. Ariz. May 22, 2017) (no § 2241 jurisdiction for loss of commissary privileges), adopted by 2017 WL 2731059 (D. Ariz. June 26, 2017); Jeburk v. Milusnic, 2019 WL 5089202, at *2 (C.D. Cal. July 12, 2019) (loss of telephone privileges non-cognizable under § 2241) adopted by 2019 WL 5080336 (C.D. Cal. Oct. 9, 2019).
VI. PETITIONER FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.
Respondent asserts that Petitioner has not exhausted his administrative remedies because he failed to file a proper appeal with the Office of General Counsel, asserting that the one he had filed “was procedurally deficient because the copies of his appeal were illegible and were not the same.” Doc. 26 at 8-10; see Doc. 26-2 at 6-7, 18.
Petitioner argues that “the General Counsel should not have rejected [his] appeal on such a minute discrepancy,” asserting that his handwriting “was clear and legible on the first page” of his appeal and that the failure of the ink to “bleed through” the first carbon page to the last carbon page was due to a “defect” in the stationery and “not a result of any insincere lack of effort on [his] part.” Doc. 29 at 2. Petitioner asserts the General Counsel had a “legal duty” to accept his appeal but chose to reject it “in hope that [he] would fall to the wayside and give up.” Id. at 2-3. Petitioner further asserts his appeal to the General Counsel “would have been futile and could not have been adequately adjudicated or addressed in its entirety” because the regional office had allegedly lost a continuation page attached to his appeal to the Regional Director. Id. at 3.
“Federal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in federal court.” Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see Wardv. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (“As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241.”). However, this requirement “is not a ‘jurisdictional prerequisite'” and “can be waived ‘if pursuing those administrative remedies would be futile.'” Ward, 678 F.3d at 1045 (citations and brackets omitted). “[E]xhaustion of administrative remedies is futile ‘where the agency's position on the question at issue appears already set, and it is very likely what the result of recourse to administrative remedies would be,'” for instance, in “circumstances in which a prisoner has shown that further appeals within the prison system would be denied based on the BOP's official policy.” Blankenship v. Meeks, 2011 WL 4527408, at *3 (D. Haw. Sept. 28, 2011) (quoting Sun v. Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004)). A court may not “address the underlying merits [of a habeas petition] without first determining the exhaustion requirement has been satisfied or properly waived.” Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004).
Here, Petitioner has not exhausted his administrative remedies because the appeal he filed with the Office of General Counsel was not in compliance with BOP's procedural rules. See Fordley v. Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021) (“[E]xhaustion requires complying with a prison's ‘critical procedural rules' and it is justified by the need to ‘impose some orderly structure on the course of its proceedings.'” (quoting Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)) (brackets omitted)).
“Although courts have discretion to waive the exhaustion requirement when it is prudentially required, this discretion is not unfettered.” Laing, 370 F.3d at 998. The Laing Court explained that a “key consideration” in whether to exercise that discretion is “whether ‘relaxation of the requirement would encourage the deliberate bypass of the administrative scheme.'” Id. (quoting Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)). In the present case, the Court finds that relaxing the exhaustion requirement would encourage deliberate bypass of the administrative scheme.
Although the Office of General Counsel rejected Petitioner's appeal, it also gave him the opportunity to resubmit it once he cured certain formatting deficiencies. According to the rejection notice, Petitioner's appeal was rejected because not all pages were “legible and worded the same.” Doc. 26-2 at 18. However, the notice further stated that Petitioner could resubmit his appeal “in proper form” and gave him 15 days to do so. Id.
Petitioner was not barred from pursuing the administrative process to its end by anything other than his own inaction. Petitioner does not proffer any explanation for why he chose to not resubmit his appeal or why he failed to take any further action during the 15-day period in which he could have done so. Given that all Petitioner had to do to satisfy the final step of administrative review, based on what was stated in the rejection notice, was ensure that each page of his appeal to the General Counsel was legible, worded the same, and not photocopied, he fails to show that pursuing his administrative remedies to their completion would have been futile. See, e.g., Blankenship, 2011 WL 4527408, at *3 (declining to waive exhaustion and noting, “Petitioner does not contend that his transfer request was denied pursuant to BOP policy, nor has he made a diligent effort to pursue each administrative remedy as it has become available.”). As it would not have been futile or burdensome for Petitioner to comply with appropriate procedures in filing his appeal, the Court declines to waive the exhaustion requirement. Accordingly, the Court will recommend dismissal of the Petition without prejudice for failure to exhaust administrative remedies. See Martinez, 804 F.2d at 571; Clark v. Rios, 2010 WL 1948617, at *8 (E.D. Cal. May 11, 2010) (“Because the failure to exhaust administrative remedies is properly treated as a curable defect, it should generally result in a dismissal without prejudice.”).
VII. CONCLUSION
IT IS RECOMMENDED that the Petition (Doc. 18) be DENIED and DISMISSED WITHOUT PREJUDICE.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.