Jones v. FCI Berlin, Warden

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Oshay Jones
v. 	Case No. 19-cv-105-JL
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Petitioner Oshay Jones, proceeding pro se, is currently
incarcerated at the Federal Correctional Institution in Berlin,
New Hampshire (“FCI Berlin”). 	He brings a 28 U.S.C. § 2241
habeas action claiming that (1) a disciplinary hearing officer
(“DHO”) at FCI Fort Dix, a federal correctional facility in New
Jersey, violated his constitutional rights by failing to
properly consider certain evidence in connection with Jones’s
November 2017 disciplinary proceedings; and (2) the Federal
Bureau of Prisons (“BOP”) Northeast Regional Administrative
Remedy Director (“Regional Director”) erred in rejecting Jones’s
appeal of the DHO’s report as untimely. 	See Jan. 14, 2019 Pet.
For Writ of Habeas Corpus (Doc. No. 1) (“Pet.”). 	Jones seeks
expungement of the disciplinary infraction that was the subject
of the November 2017 proceedings from his BOP disciplinary
record, and restoration of good conduct time disallowed as a
sanction for that infraction.
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Before the court is the respondent’s motion for summary
judgment (Doc. No. 12) asserting that Jones failed to properly
exhaust the BOP’s available administrative remedies. 	Jones did
not object or otherwise respond to the motion.
Summary Judgment Standard
“Summary judgment is warranted if ‘there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” 	Luceus v. Rhode Island, 923 F.3d
255, 256-57 (1st Cir. 2019) (quoting Fed. R. Civ. P. 56(a)).
“An issue is ‘genuine’ if it can be resolved in favor of either
party, and a fact is ‘material’ if it has the potential of
affecting the outcome of the case.” 	Xiaoyan Tang v. Citizens
Bank, N.A., 821 F.3d 206, 215 (quoting Pérez–Cordero v. Wal–Mart
P.R., Inc., 656 F.3d 19, 25 (1st Cir. 2011)) (internal quotation
marks omitted). 	When a court considers a motion for summary
judgment, “[t]he evidence . . . must be viewed in the light most
favorable to the nonmoving party . . . and all reasonable
inferences must be taken in that party’s favor.” 	Harris v.
Scarcelli (In re Oak Knoll Assocs., L.P.), 835 F.3d 24, 29 (1st
Cir. 2016) (citation omitted).
Where the party moving for summary judgment bears the
burden of proof on an issue, that party “must provide evidence
sufficient for the court to hold that no reasonable trier of
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fact could find other than in its favor.” 	Am. Steel Erectors,
Inc. v. Local Union No. 7, Int’l Ass’n of Bridge, Structural,
Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir.
2008). 	Once the moving party identifies the portions of the
record that show the absence of any genuine issue of material
fact, the burden shifts to the nonmoving party to demonstrate,
by reference to materials of evidentiary quality, that a trier
of fact could reasonably resolve that issue in the nonmovant’s
favor. 	See Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st
Cir. 2016). 	The nonmoving party’s failure to make the requisite
showing as to those issues upon which it bears the burden of
proof “entitles the moving party to summary judgment.” 	Id.
Background
I. 	Disciplinary Proceedings and Administrative Appeals
In November 2017, while Jones was incarcerated at FCI Fort
Dix, he was subject to a disciplinary proceeding at FCI Fort Dix
on a charge that, on one occasion in September 2017, he had
possessed a cell phone in violation of prison policy. 	Aug. 6,
2019 Decl. of Cheryl Magnusson (Doc. No. 12-1) (“Magnusson
Decl.”) at 2 ¶¶ 5-6; Mar. 6, 2018 DHO Report (Doc. No. 12-3)
(“DHO Report”) at 3. 	The DHO imposed, as sanctions for the
disciplinary infraction: 	loss of forty-one days of good conduct
time; thirty days in disciplinary segregation, suspended; a
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twelve-month loss of phone privileges; and a twelve-month loss
of email privileges. 	DHO Report at 3; Magnusson Decl. at 2 ¶ 6.
Jones received a copy of the DHO Report on April 26, 2018.
DHO Report at 4; Pet. at 8. 	The DHO Report informed Jones of
the DHO’s findings and sanctions, and Jones’s right to appeal
the DHO’s decision within twenty days. 	DHO Report at 2-3.
Jones states that he appealed the DHO Report to the Regional
Director by hand-delivering his appeal to the FCI Berlin
mailroom staff on May 16, 2018,1 which was twenty days after
April 26, 2018.2 	Id. 	Respondent asserts the Regional Director
received Jones’s appeal on May 25, 2018. 	Aug. 14, 2019 Resp’t’s
Mot. Summ. J. (Doc. No. 12) at 1 (citing Magnusson Decl., Ex. C
(Doc. No. 12-4) at 5). 	On May 30, 2018, the Regional Director
rejected the appeal finding, according to Jones:
1: “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.” 	2: “Your appeal[] is
untimely. 	Regional Appeals (BP-10) must be received
within[] 20 days of the Warden/CCM response or receipt
1Jones states at one point in his petition that he delivered
his appeal to the FCI mailroom staff on May 26, 2018. 	See Pet.
at 8. 	However, as Respondent acknowledges, and drawing all
reasonable inferences in Jones’s favor, it appears Jones meant
that he delivered his appeal to the FCI mailroom on May 16,
2018. 	See Resp’t’s Mot. Summ. J. (Doc. No. 12) at 2.
2Jones’s petition indicates that a copy of the appeal Jones
filed with the Regional Director is attached to the petition as
Exhibit A, but no such exhibit was filed with the petition. 	The
court accepts as true Jones’s description of that appeal for
purposes of considering the motion for summary judgment.
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of the DHO report. 	This time include[s] mail time.”
“Reject Reason 3: Provide staff verification stating
reason untimely filings was not your fault. 	Reject
Reasons: You may resubmit appeal in proper form within
10 days of the date of this rejection notice.”
Pet. (Doc. No. 1) at 2 ¶5 (citing Regional Director’s denial of
appeal). 	The court construes Jones’s petition liberally to
further allege that FCI Berlin staff did not provide Jones with
a memo of explanation as to why the appeal of his DHO Report to
the Regional Director was untimely. 	See id. at 2 ¶ 6.
On or about June 20, 2018, Jones appealed the Regional
Director’s rejection of his appeal to the BOP Central Appeals
Office (“Central Office”), which, according to Jones, was
rejected, as follows: “1: ‘concur with rational[e] of Regional
Office and/or Institution for rejection.’ 	Follow directions
provided on prior rejection notice.’” 	Pet. at 2-3 ¶ 7 (citing
BOP Central Office’s denial of appeal).
II. 	Respondent’s Motion for Summary Judgment
Respondent argues here that the undisputed facts in this
case demonstrate that Jones’s appeal of the DHO Report to the
Regional Director was untimely, and that Jones therefore failed
to properly exhaust his administrative remedies. 	The respondent
contends that he is entitled to judgment as a matter of law
because Jones’s failure to meet the appeal deadline means that
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he failed to exhaust his administrative remedies, and that such
failure is fatal to Jones’s petition.
Discussion
I. 	Exhaustion of Administrative Remedies
“In general, a § 2241 petitioner must exhaust available
administrative remedies before [he] can obtain relief in federal
court.” 	Shorter v. Warden, No. 19-10790, 2020 WL 820949, at *3
(11th Cir. 2020). 	For a federal prisoner “[t]o properly exhaust
§ 2241 claims challenging the computation of a release date,
[he] generally must comply with the with the [BOP’s]
Administrative Remedy Program which is set forth in 28 C.F.R.
§§ 542.10-.19.” 	Cook v. Spaulding, No. 19-12054-JGD, 2020 WL
231464, at *3 (D. Mass. Jan. 15, 2020); see also Davis v.
Warden, FCC Coleman – USP I, 661 F. App’x 561, 562 (11th Cir.
2016) (citing Woodford v. Ngo, 548 U.S. 81, 88–93 (2006))
(proper exhaustion requires prisoner to comply with the
“agency’s deadlines and procedural rules”). 	In a § 2241 action,
the government bears the burden to raise and prove the
affirmative defense that the petitioner failed to exhaust his
administrative remedies. 	See Acosta v. Daniels, 589 F. App’x
870, 873 (10th Cir. 2014) (citing Jones v. Bock, 549 U.S. 199,
212) (2007)).
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II. 	BOP Administrative Remedies
The BOP has established an Administrative Remedy Program
(“ARP”) “to allow an inmate to seek formal review of an issue
relating to any aspect of his/her own confinement.” 	28 C.F.R.
§ 542.10. 	The ARP consists of a formal review process for BOP
prisoner grievances. 	See id. § 542.14(a). 	Where, as here, a
BOP prisoner seeks to appeal a DHO Report, his first appeal must
be submitted to the Regional Director within twenty calendar
days of the date the prisoner received the DHO Report. 	See 28
C.F.R. §§ 542.14(d)(2) (excepting DHO appeals from the general
requirement that an inmate attempt an informal resolution, and
files an Administrative Remedy Request (“ARR”) to a staff member
at his place of incarceration prior to filing an appeal with the
Regional Director); id. § 542.15(a) (appeal to Regional Director
to be filed within twenty calendar days of decision being
appealed).
A prisoner may appeal the Regional Director’s decision to
the Central Office within thirty calendar days of the date of
the Regional Director’s signed response. 	Id. 	Appeals filed
with the Regional Director or the Central Office must be signed
and dated by the inmate and mailed to the appropriate recipient.
Id. § 542.15(b)(3). 	Appeal to the Central Office is the final
step in the administrative appeal process. 	Id. § 542.15(a).
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A prisoner’s administrative appeals to the Regional
Director and the Central Office are “considered filed on the
date [the appeal] is logged into the Administrative Remedy Index
as received.” 	Id. § 542.18. 	An inmate who fails to comply with
the prescribed deadlines has an opportunity to demonstrate a
valid reason for the delay in filing; if the prisoner does so,
he may be granted an extension to complete the filing. 	See id.
§ 542.17(b).
III. Jones’s Compliance with ARP Requirements
As a preliminary matter, this court notes that the record
includes no copies of the decisions issued in Jones’s
administrative grievance process. 	The records filed in support
of the motion for summary judgment do not include any copies of
those decisions; rather, there is a conclusory statement in an
affidavit of a BOP legal assistant that her review of the
administrative record demonstrates that Jones did not exhaust
his administrative remedies, to which a set of essentially
unintelligible computer print-outs is attached. 	In the absence
of a suitable administrative record upon which to base its
decision on the motion for summary judgment, the court takes as
true Jones’s (undisputed) factual allegations as to the timing
of his appeals and the reasons stated by BOP officials for
denying his grievances at each stage of the process. 	Cf. Settle
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v. Bureau of Prisons, No. 16-5279, 2017 WL 8159227, at *2 (6th
Cir. Sept. 20, 2017) (“when it is apparent on the face of a §
2241 petition that the petitioner has not exhausted his
administrative remedies, a district court may sua sponte dismiss
the petition without prejudice based on that affirmative
defense” (citing Jones, 549 U.S. at 214–16)).
The government argues in its motion for summary judgment,
and Jones’s petition demonstrates on its face, that his appeal
to the Regional Director was not timely filed. 	Jones alleges he
received the DHO Report on April 26, 2018. 	Pet. at 8 ¶ 16.
Jones further asserts that: his appeal of the DHO Report to the
Regional Director was due on May 16, 2018, and he hand-delivered
that appeal to the FCI Berlin mailroom staff on May 16, 2018.
Id.
An inmate must mail his appeal of a DHO Report to the
Regional Director. 	See 28 C.F.R. 542.15(b)(3). 	That appeal “is
considered filed on the date it is logged into the
Administrative Remedy Index as received.” 	Id. § 542.18. 	Jones
concedes he did not deliver his appeal for mailing until the day
it was due, May 16, 2018. 	Pet. at 8 ¶ 16. 	Jones’s appeal could
not have been mailed from FCI Berlin in New Hampshire and arrive
at the Regional Director’s office, which is in Philadelphia,
Pennsylvania, that same day. 	On its face, therefore, Jones’s
petition reveals that his appeal was not filed in accordance
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with the timetables established in the ARP. 	See 28 C.F.R. §
542.15.
Jones argues that his appeal was timely filed by his May 16,
2018 delivery of his appeal to FCI Berlin mailroom staff,
pursuant to the so-called “prison mailbox rule.”3 	See Pet. at 8
¶ 16. 	His argument regarding the applicability of that court
rule of procedure, however, is unavailing. 	While the First
Circuit has not spoken as to whether the prison mailbox rule
applies to a federal prisoner’s filing of appeals under the ARP,
the majority of courts that have considered the question have
found that the prison mailbox rule does not apply to the
deadlines established by the BOP’s grievance procedure. 	See,
e.g., Nigro v. Sullivan, 40 F.3d 990, 996 (9th Cir. 1994)
(federal prisoners not entitled to the benefit of the prison
mailbox rule in determining whether a prison administrative
appeal was timely filed); Lee v. Zuniga, No. 1:15-cv-00297-LJO-
MJS, 2017 WL 2628101, at *3 (E.D. Cal. June 19, 2017)
(collecting cases reaching same conclusion). 	The cases finding
that the prison mailbox rule may apply to the ARP are
distinguishable to the extent that they appear to involve
3“[U]nder the prison mailbox rule, a pro se prisoner’s court
filing is deemed filed on the date that he delivered it to
prison authorities for mailing.” 	McGrimager v. Swain, ___ F.
App’x ___, 2019 WL 6487516, at *1 (11 th Cir. 2019) (citing
Daniels v. United States, 809 U.S. F.3d 588, 589 (11 th Cir.
2015).
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circumstances where the inmate has shown that he or she did
everything within the inmate’s control to avoid an untimely
submission. 	See, e.g., Collier v. Caraway, No. 2:14-cv-0365-
JMS-MJD, 2016 WL 4088723, at *5 (S.D. Ind. July 27, 2016)
(“Whether the Court concludes that the prison mailbox rule
applies or whether it finds that the process was not available
to Mr. Collier because [of prison staff conduct], the outcome is
the same. 	Mr. Collier’s [appeal] arrived late through no fault
of his own. 	Mr. Collier, as a prisoner, could not place his
paperwork directly in the hands of the intended recipient or
postal service.”).
Finding the majority position persuasive, given in
particular that the ARP provides a mechanism for prisoners to
demonstrate that a delay in filing should be excused, the court
declines to find that the prison mailbox rule rendered Jones’s
appeal timely. 	As the petition conclusively demonstrates that
Jones’s administrative appeal was not received according to the
timetable set forth in federal regulations and was rejected by
the Regional Director on that basis, Jones failed to exhaust his
administrative remedies with respect to the claims asserted in
his § 2241 petition here.
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Conclusion
For the foregoing reasons, the district judge should grant
the Warden’s motion for summary judgment (Doc. No. 12). 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file a written objection to the Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. 	See Santos–Santos v. Torres–
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 2, 2020
cc: 	Oshay Jones, pro se
Seth R. Aframe, Esq.
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