Opinion
1:21-cv-01470 (AT) (SDA)
11-30-2021
Kelvin Ford, Petitioner, v. Warden W.S. Pliler, Respondent.
TO THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
STEWART D. AARON UNITED STATES MAGISTRATE JUDGE
Petitioner Kelvin Ford (“Ford” or “Petitioner”), currently incarcerated at USP Allenwood, seeks a writ of habeas corpus, pursuant to 28 U.S.C. 2241, contending that the Federal Bureau of Prisons (“BOP”) improperly deducted good conduct time from his sentence for a disciplinary rule violation that occurred while he was in BOP custody in December 2003. (See Pet., ECF No. 1, at 1.) In support of his Petition, Petitioner argues that his alleged rule violation should not result in a deduction of good conduct time from his sentence because it occurred prior to the imposition of his federal sentence, and he also disputes that he violated the rule as charged. (See id.) For the reasons set forth below, the Court respectfully recommends that the Petition be DENIED.
Petitioner filed this action in February 2021 against Respondent William S. Pliler, Warden of Federal Correctional Institution (“FCI”) Otisville, because at that time Petitioner was incarcerated at FCI Otisville, which is within the Southern District of New York. (See Pet., ECF No. 1.) In August 2021, Petitioner was transferred to USP Allenwood, which is in Pennsylvania, outside of this District (see Change of Address, ECF No. 18), and thus Respondent is not Petitioner's immediate physical custodian. However, in his filing after Petitioner's transfer to USP Allenwood, Respondent did not seek to dismiss the Petition for lack of jurisdiction or improper venue. (See Resp. Sur-Reply, ECF No. 21.) “Because the immediate physical custodian rule is subject to waiver, and because the Court finds that the petition [should] be denied, judicial economy favors disposing of this action without transfer.” Lomako v. Horel, No. 08-CV-01658 (OWW) (JMD), 2010 WL 715852, at *2 (E.D. Cal. Mar. 2, 2010).
Petitioner had been convicted for participating in the robbery of two New Jersey banks. See United States v. Ford, 481 F.3d 215, 216 (3d Cir. 2007). He was sentenced on November 2, 2005 to 460 months of incarceration. (See Sentence Monitoring Computation Data, ECF No. 15-1, at 1-2.)
BACKGROUND
The loss of good conduct time at issue arose out of an incident that occurred on December 12, 2003, while Ford was in custody at the Federal Detention Center (“FDC”) Philadelphia, for which he was charged with a violation of Code 102A, Attempted Escape. (See Schreffler Decl., ECF No. 15, ¶¶ 9, 11.) After an investigation by the FDC Philadelphia administrative staff in June 2004, an incident report was released for Unit Disciplinary Committee (“UDC”) review on July 28, 2004. (Id. ¶ 11.) On August 8, 2004, the UDC referred the incident to a Discipline Hearing Officer (“DHO”) due to the nature of the charge. (Id.) On August 27, 2004, DHO Kulick sanctioned Ford with the disallowance of 40 days of good conduct time. (Id. ¶¶ 9, 11.) In his Petition, Ford contends that the good conduct time was “improperly deducted.” (See Pet.)
Although the BOP located certain records associated with Petitioner's disciplinary rule violation (see, e.g., Schreffler Decl., Ex. A (ECF No. 15-1), Ex. B (ECF No. 15-2), Ex. C (ECF No. 15-3), Ex. D (ECF No. 15-4)), the BOP was unable to locate the incident report, any investigatory documents or the DHO report. (See Meredick Decl., ECF No. 13, ¶ 5.) The BOP also was unable to locate any documents indicating that Petitioner appealed the DHO's decision or otherwise exhausted his administrative remedies. (Id. ¶ 6.)
LEGAL STANDARDS
Habeas corpus relief under 28 U.S.C. 2241 is available to individuals “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 2241(c)(3). A petition for a writ of habeas corpus under 2241 allows a federal inmate to challenge the “execution of his sentence” after conviction, rather than the imposition of the sentence itself. See Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Execution of a sentence may include “such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001). Thus, under 2241, a federal inmate may seek to expunge prison “disciplinary sanctions . . . including the loss of good time credits.” See Carmona, 243 F.3d at 632.
Federal prisoners are “entitled to certain procedural protections when disciplinary actions subject them to further liberty deprivations such as loss of good-time credit.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974)). Given that “[p]rison disciplinary proceedings are not part of a criminal prosecution, ” however, “the full panoply of rights due a[n] [inmate] in such proceedings does not apply.” Wolff, 418 U.S. at 556. “[A] disciplinary hearing that results in a revocation of a prisoner's good time credit satisfies the due process requirements of the Fourteenth Amendment if: (1) the prisoner is provided written notice of the disciplinary charges at least twenty-four hours in advance of the hearing; (2) a neutral and detached hearing body conducts the hearing; (3) the prisoner is afforded an opportunity to present evidence and call witnesses as long as the presentation of evidence is not unduly hazardous to institutional safety or correctional goals; (4) the prisoner is granted assistance, if necessary, to understand and prepare a defense; and (5) the factfinder provides a written statement of the evidence relied upon in making its decision and the reasons for the decision.” Homen v. Hasty, 229 F.Supp.2d 290, 295 (S.D.N.Y. 2002) (citing Wolff, 418 U.S. at 563-67).
ANALYSIS
In his Petition, Petitioner nowhere states that his due process rights were violated by the manner in which disciplinary process took place. Rather, Petitioner sets forth two other grounds for his Petition: First, that the disciplinary violation occurred prior to his sentencing and therefore should not be the basis for a loss of good time credit; second, that he did not “violate[] the Rule as charged.” (See Pet. at 1.) Neither ground has merit.
First, as to timing, when the disciplinary sanctions at issue were imposed in August 2004, Petitioner was in federal custody in connection with the crimes for which he later was convicted and thus was subject to BOP regulations. Indeed, after Petitioner was sentenced on November 2, 2005, he was credited for the period he already had served in federal detention. (See Schreffler Decl. Ex. A (Sentence Monitoring Computation Data), ECF No. 15-1, at 2 (reflecting “Jail Credit” for period 6-12-2003 to 11-1-2005).) Thus, the 40-day good conduct time deduction for Petitioner's pre-sentencing rules violation effectively (and appropriately) reduced the amount of credit Petitioner had received for pre-sentencing time served.
See 28 C.F.R. 541.19 (2001) (“So that inmates may live in a safe and orderly environment, it is necessary for institution authorities to impose discipline on those inmates whose behavior is not in compliance with Bureau of Prisons rules. The provisions of this rule apply to all persons committed to the care, custody, and control (direct or constructive) of the Bureau of Prisons” (emphasis added)).
Second, while Petitioner conclusorily states that he did not violate the disciplinary rule in question (see Pet. at 1 (“I also dispute that I violated the rule as charged.”)), nowhere does he set forth any factual basis for this assertion.
Accordingly, the Petition provides no basis for habeas relief.
In his Traverse to Respondent's opposition brief, Petitioner raises for the first time the additional argument that his due process rights were violated because he purportedly never received a copy of the BOP's written record of his proceedings before the DHO-i.e., the “DHO report.” (See Pet's 9/8/21 Traverse, ECF No. 19, at 2; see also Pet.'s 10/18/21 Reply to Sur-Reply, ECF No. 22.) The Court notes with some skepticism, however, that Petitioner raised this argument only after Respondent filed his Response to the Petition, which indicated that the BOP had been unable to locate the DHO report from about 17 years earlier. (See 7/6/21 Response, ECF No. 11.) In any event, this belated assertion, even if true, provides no basis for habeas relief because Petitioner did not exhaust his administrative remedies regarding the BOP's alleged failure to provide him with the DHO report.
The Prison Litigation Reform Act provides, in pertinent part, that “no action shall be brought with respect to prison conditions under . . . any . . . Federal law, by a prisoner confined in any jail, prison, or any other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. 1997e(a). “The BOP has established a four-step administrative-remedies process that federal inmates must follow to meet the PLRA's exhaustion requirement.” Petrucelli v. Hasty, 605 F.Supp.2d 410, 419 (E.D.N.Y. 2009).
First, an inmate must informally present an issue of concern to the staff, who shall then attempt to resolve the issue. 28 C.F.R. 542.13(a). Second, if the inmate is dissatisfied with the informal resolution of his issue of concern, the inmate must submit a formal written Administrative Remedy Request on a BP-9 form 20 calendar days following the date on which the basis for a remedy request occurred. Id. 542.14(a). Third, an inmate who is not satisfied with the warden's response may submit an appeal on a BP-10 form to the Regional Director within 20 calendar days of the date of the warden's signed response. Id. 542.15. Fourth, an inmate who is not satisfied with the Regional Director's response may submit a final appeal on a BP-11 form to the General Counsel at the Central Office of Appeals within 30 calendar days of the Regional Director's signed response. Id.
Here, Petitioner did not file any administrative remedy request regarding the alleged failure to provide him with the DHO report. (See Schreffler Decl. ¶¶ 13-15; see also Resp. Sur- Reply at 3.) Thus, Petitioner failed to exhaust, as required, his administrative remedies with respect to his belated claim that his due process rights were violated because he allegedly did not receive the DHO report back in 2004. See Anderson v. Marr, No. 10-CV-00818 (SHS) (FM), 2011 WL 3423694, at *6 (S.D.N.Y. July 18, 2011) (recommending dismissal of petitioner's claim for failure to exhaust where he claimed delay in receiving DHO report but had not timely appealed adverse administrative decisions on that basis), report and recommendation adopted, 2011 WL 3585968 (S.D.N.Y. Aug. 10, 2011).
While Petitioner argues that his lack of a copy of the DHO report prevented him from pursuing administrative remedies (see Pet's 9/8/21 Traverse at 1 (“Pursuant to policy, and case law[, ] there is no requirement to exh[au]st the remedies if they are unavailable. In this instance, the region rejects BP-10 appeal and would not consider appeal if the DHO report is not attached.”)), the regulations then in force plainly demonstrate otherwise. See 28 C.F.R. 541.19 (2001) (“An inmate's initial appeal of a decision of the DHO should be filed directly to the appropriate Regional Office. The inmate should forward a copy of the DHO report or, if not available at the time of filing, should state in his appeal the date of the DHO hearing and the nature of the charges against the inmate.” (emphasis added)).
Even if the Court were to consider the merits of Petitioner's claim, such claim lacks merit since Petitioner has not made any showing of prejudice. “[I]t is entirely inappropriate to overturn the outcome of a prison disciplinary proceeding because of a procedural error without making the normal appellate assessment as to whether the error was harmless or prejudicial.” Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991); see also Marino v. Humphrey, No. 05-CV-06571 (SAS), 2006 WL 2786182, at *5 (S.D.N.Y. Sept. 27, 2006) (“Harmless error analysis applies to prison disciplinary hearings and requires factual assessment of the prejudice, if any, to the prisoner resulting from the error. Courts may find harmless error where a prisoner fails to show that the error negatively affected the outcome of the proceeding”) (footnotes omitted). Here, Petitioner has not shown that he suffered any prejudice by his failure to receive the DHO report. See Griffin v. Ebbert, 640 Fed.Appx. 181, 184 (3d Cir. 2016) (holding that, where petitioner alleged he did not receive DHO written report but was unable to allege how he would have used report in appeal, “[i]n the absence of a showing of prejudice, we cannot say that [Petitioner] was denied the process he was due”); see also Jennings v. Hollingsworth, No. 14-CV-06881 (RBK), 2016 WL 880501, at *6 (D.N.J. Mar. 8, 2016) (“Petitioner here has not shown that he was prejudiced by the failure to timely receive a copy of the amended DHO report.”).
CONCLUSION
For the reasons set forth above, I respectfully recommend that Ford's Petition be DENIED. The Clerk of the Court is respectfully requested to mail this Report and Recommendation to the pro se Petitioner at the address indicated on the docket.
SO ORDERED.
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).