Burman v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Allah Burman
v. Civil No. 20-cv-982-JD
Opinion No. 2021 DNH 110
Warden, FCI Berlin
O R D E R
Allah Burman, who is an inmate at the Federal Correctional
Institution in Berlin, New Hampshire, (“FCI Berlin”) and is
proceeding pro se, filed a petition for relief under 28 U.S.C.
§ 2241. Following preliminary review, the petition was served
on the warden at FCI Berlin. The warden now moves for summary
judgment, and Burman objects.
Standard of Review
“Summary judgment is appropriate when the moving party
shows that ‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’”
Joseph v. Lincare, Inc., 989 F. 3d 147, 157 (1st Cir. 2021)
(quoting Fed. R. Civ. P. 56(a)). In making that determination,
the court construes the record in the light most favorable to
the nonmoving party. Thompson v. Gold Medal Bakery, Inc., 989
F.3d 135, 141 (1st Cir. 2021). To avoid summary judgment, the
nonmoving party “must adduce specific facts showing that a trier
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of fact could reasonably find in his favor” and “cannot rely on
conclusory allegations, improbable inferences, acrimonious
invective, or rank speculation.” Id. Summary judgment is
required if a party fails to make a sufficient showing to
establish an essential element of his case. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Background
Burman brought a § 2241 petition challenging disciplinary
proceedings that resulted in the loss of good time credit. In
Claim 1, Burman alleges that he was charged with possession of a
dangerous weapon, code 104, Incident Report #2680722, and that
his due process rights were violated in the course of that
proceeding. In Claim 2, Burman alleges that he was charged with
a verbal threat, code 203, Incident Report 3306215, and that his
due process rights were violated in the course of that
proceeding. In Claim 3, Burman alleges that more than one year
of good time credit has been taken unlawfully by various
disciplinary hearing officers (“DHO”) in unspecified
proceedings.
As alleged in the petition, Burman was found guilty in the
disciplinary proceeding addressed in Claim 1. Burman requested
a copy of the DHO’s report in that matter but he did not receive
a copy until five years after the incident when his case manager
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gave it to him. Neither Burman nor the warden has provided a
copy of the incident report or the DHO’s report for that
incident.
After receiving a copy of the DHO’s report, Burman appealed
the DHO’s decision to the Northeast Regional Office, which
denied the appeal. He then filed an appeal with the Office of
General Counsel. Burman explained in the appeal to the Office
of General Counsel, that he had not received a decision from the
Northeast Regional Office. The Office of the General Counsel
returned the appeal form to Burman because he did not include a
copy of the decision of the Northeast Regional Office. Burman
did not respond, and the matter was closed. The warden has not
provided a copy of a decision issued by the Northeast Regional
Office.
With respect to incident report #3306215 that is addressed
in Claim 2, the incident involved Burman’s refusal to submit to
handcuffs and making a threat that he would attack any staff who
entered his cell. Burman refused to attend the Unit
Disciplinary Committee hearing on the incident, and charges
against him were referred to a DHO for a further hearing. The
hearing before the DHO was held on October 15, 2019. Burman
declined to have a staff representative at the hearing.
At the hearing, Burman denied the charges and said: “At no
time did I refuse to cuff up. This is retaliation for me suing
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Loretto for over-crowding. This is fabricated. At no time did
I make any threats.” Doc. 19-4. The DHO did not find Burman’s
statement credible and instead relied on the incident report
submitted by Officer M. Avila. The DHO explained that while
Burman had a motive to avoid punishment by not telling the
truth, the officer had nothing to gain by correctly reporting
the incident. Doc. 19-4. Burman was found guilty of violating
Code 203, and the sanctions imposed on him were thirty days of
disciplinary segregation, loss of twenty-seven days of good time
credit, and loss of four months of telephone privileges. The
report was delivered to him on October 22, 2019.
Burman filed an appeal with the Northeast Region, arguing
that he was not guilty and the DHO’s findings should be
reversed. In support, Burman argued that the delay between the
incident and the hearing before the DHO violated due process,
that the incident report was fabricated, and that the report
that he turned his back and was rambling showed that the officer
could not have heard what he said. The acting regional director
issued a response on December 30, 2019, in which he determined
the DHO reasonably found Burman guilty, no deviations from
prison policy occurred, and there were no due process
violations. The acting regional director did find minor
administrative errors in the DHO’s report, notified the DHO, and
stated that Burman would receive an amended report.
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Burman appealed that decision to the Central Office of
Administrative Remedy Appeal. He argued that his due process
rights were violated by the delay between the incident and the
DHO hearing, because the incident report was fabricated, and
because the officer could not have heard what he said because he
turned away. The Administrator denied his appeal, finding no
undue delay, no evidence of fabrication, and no other bases to
support his claims on appeal.
Claim 3 is a general challenge to disciplinary proceedings
that resulted in the loss of good time credit. Burman provides
some additional information about Claim 3 in his objection to
the warden’s motion for summary judgment. Without challenging
specific disciplinary proceedings, Burman states that he is
challenging the manner and means “of the proceedings that took
place” and alleges generally that those proceedings violated
unspecified parts of the constitution, that the Comprehensive
Crime Control Act violates the Ex Post Facto Clause, “the non
delegation of Power Clause, and the Separation of Power.” Doc.
22, at *4.
Discussion
The warden moves for summary judgment on the grounds that
Claim 1 is unexhausted, that Burman cannot prove his due process
claim alleged in Claim 2, and that Claim 3 is unintelligible.
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In response, Burman contends that he exhausted his remedies as
to Claim 1, that his due process rights were violated as alleged
in Count 2, and that sanctions of taking good time credits
imposed as the result of disciplinary proceedings over the past
ten years were illegal. The warden did not file a reply.
A. Claim 1 – Exhaustion
There is a common law requirement that petitioners exhaust
administrative remedies before filing a § 2241 petition.1 Idada
v. Spaulding, 456 F. Supp. 3d 294, 297 (D. Mass. 2020);
see also Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004);
Roland v. Houser, 21-cv-135-RRB, 2021 WL 2832940, at *4 (D.
Alas. July 7, 2021). The BOP’s Administrative Remedy Program
provides a process for prisoners to raise and appeal issues. 28
C.F.R. §§ 542.13-542.18; see Levine v. U.S. Dep’t of Fed. Bur.
of Prisons, 20-cv-11833-ADB, 2021 WL 681689, at *2 (D. Mass.
Feb. 22, 2021); see also Doc. no. 19-1. The Administrative
Remedy Program begins with attempting to resolve the issue
informally and then proceeds through two appeals levels. If the
administrative process applies, a prisoner is required to
complete that process to exhaust a claim for purposes of a
1 The statutory exhaustion requirement under the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a) does not apply to
§ 2241 petitions. Idada v. Spaulding, 456 F. Supp. 3d 294, 296
(D. Mass. 2020).
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§ 2241 petition. Ellis v. Ciolli, No. 19 CV 50318, 2021 WL
1784753, at *2 (N.D. Ill. May 5, 2021).
The warden contends that Burman did not exhaust Claim 1 and
provides evidence about the administrative process. Cheryl
Magnussen, a legal assistant employed by the BOP, searched BOP
records pertaining to Burman and found two records pertaining to
Incident Report # 2680722. Doc. 19-1, ¶ 8. The records show
that the Northeast Regional Office denied Burman’s appeal on
March 3, 2020. Doc. 19-2, at *47. Burman then filed an appeal
with the Office of General Counsel on July 9, 2020. That appeal
was returned on July 24 because Burman failed to file a copy of
the decision from the Northeast Regional Office. He was given
fifteen days to comply with that requirement, but he did not
file anything in response to that notice. As is noted above,
the warden did not provide a copy of the decision issued by the
Northeast Regional Office.
Exceptions to the exhaustion requirement may exist when
that process would cause prejudice due to unreasonable delay,
the BOP cannot resolve the issue or grant the requested relief,
the appeals process would be futile because of bias or a
foregone conclusion, and when the petition raises substantial
constitutional issues. Id.; see also Holloway v. Hillsborough
County Dep’t of Corrs. Superintendent, 21—cv-205-JL, 2021 WL
1227760, at *3 (D.N.H. Mar. 15, 2020). In addition, waiver of
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the exhaustion requirement may be appropriate when a prisoner’s
failure to comply with the requirements of the Administrative
Remedy Program was caused by the BOP. See Butler v. Swain, No.
EDCV 18-2433 MWF(SS), 2019 WL 4648902, at *4 (C.D. Cal. Aug. 22,
2019); Posey v. U.S. Prole Comm’n, 16-HC-2106-FL, 2018 WL
1384638, at *5 (E.D.N.C. Mar. 19, 2018). Similarly, exhaustion
may be excused if a prisoner can show cause for the failure to
exhaust and prejudice. See Concepcion v. Warden Allenwood FCI,
750 F. App’x 184, 185 (3d Cir. 2019); Johnson v. Kan. Parole
Bd., 419 F. App’x 867, 870 (10th Cir. 2011).
Burman contends that he was unable to complete the appeals
process for Claim 1 because he never got a response to his
appeal from the Northeast Regional Director. In support, Burman
filed a copy of a form he completed, which is dated June 25,
2020, and appears to be a copy of his appeal to the Office of
General Counsel. Burman wrote on the form that the Northeast
Regional Office received his appeal on March 2 and that he never
received a response.
When a prisoner does not receive a response within the time
allowed, he is to presume that his appeal was denied and to
proceed to the next level. 28 C.F.R. § 542.18; Gordon v.
Warden, 20-cv-2419, 2021 WL 780762, at *3 (M.D. Penn. Mar. 1,
2021). According to Burman’s version of events, that is what he
did. When he received no response from the Regional Director,
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he filed an appeal with the Office of General Counsel and
explained that he had received no response from the Regional
Director. The Office of General Counsel, however, required him
to provide a copy of the decision issued by the Regional
Director. Burman contends that he did not receive any response
to his appeal from the Regional Director. For that reason,
Burman contends that he could not comply with the Office of
General Counsel’s requirement that he provide a copy of a non-
existent decision, which would make any further attempt to
exhaust administrative remedies futile.
The record is not sufficiently developed to determine
whether a written decision was issued by the regional director
or whether Burman received a copy of the decision.2 If not, as
Burman contends, he could not be required to send a copy of a
decision he never received to the Office of the General Counsel,
as he was directed to do. For that reason, the record does not
show, based on undisputed facts, that Burman failed to exhaust
available administrative remedies. Summary judgment is denied
as to Claim 1, without prejudice to filing a motion for summary
judgment with adequate support to show a failure to exhaust
2 In contrast, the record is amply developed with respect to
the decision, Burman’s appeals, and the administrative responses
relevant to Claim 2.
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administrative remedies or to show that the warden is entitled
to summary judgment on the merits of Claim 1.
B. Claim 2 – Violation of Due Process
Claim 2 addresses Incident Report # 336215, which occurred
on September 20, 2019, when an officer reported that Burman
failed to comply with an officer’s order to submit to handcuffs,
became disruptive, and cursed and said he would assault any
staff member who entered his cell. Burman alleges that the
proceedings for Incident Report # 3306215 violated his due
process rights because the hearing officer believed the
officer’s statement in the incident report instead of Burman’s
version of events and because the hearing officer refused to
review the security camera for video of the incident.3 In his
objection to the warden’s motion for summary judgment, Burman
adds that delay between the incident and the DHO hearing
violated BOP Program Statements 5209.09 and 5270.11 and due
process.
3 Although Burman mentions the right to remain silent, he
alleges nothing that occurred in the disciplinary proceedings
that would implicate that right.
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1. Violation of Program Statements
Burman’s addition in his objection of allegations that the
DHO violated Program Statements is unavailing. Violation of BOP
Program Statements does not provide grounds to support habeas
corpus relief. Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir.
2011). Therefore, to the extent Claim 2 is based on violations
of BOP Program Statements, it fails.
2. Delay
To show a due process violation based on delay between a
disciplinary incident and the disciplinary hearing, Burman must
show that the delay was unreasonably long and was prejudicial.
See United States v. Tores-Santana, 991 F.3d 257, 264 (1st Cir.
2021). Burman has not shown that the time between the incident
report, on September 22, 2019, and the hearing, on October 15,
2019, was unreasonable or prejudicial. Therefore, Burman has
provided no grounds to show a due process violation based on the
time between the incident report and the hearing in his case.
3. Evidentiary Basis for the Decision
Burman also challenges the evidentiary basis for the DHO’s
decision. He argues that the DHO should have believed him
rather than the officer who completed the incident report. In
support of his appeals of the DHO’s decision, Burman argued that
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the incident report was fabricated. That theory was
unsuccessful. He does not raise the fabrication theory in
support of his § 2241 petition.
In prison disciplinary hearings that may result in the loss
of good time credit, a prisoner has a due process right to
advance written notice of the charges, an opportunity to call
witnesses and present documentary evidence, and a written
statement of the factfinder on the evidence and reasons for the
decision. Superintendent v. Hill, 472 U.S. 445, 454 (1985). A
DHO’s finding on a disciplinary matter complies with the
requirements of due process as long as it is supported by “some
evidence.” Id. at 455; accord Rivera v. Warden, 20-cv-918-JL,
2021 WL 1894499, at *2 (D.N.H. Apr. 22, 2021).
In this case, the officer’s incident report provided some
evidence to support the DHO’s finding that Burman refused to
comply with the officer’s order and threatened prison staff.
The DHO explained why he found the officer’s report more
credible than Burman’s version of the incident. There is no
evidence of bias. Burman provides no basis to conclude that any
due process violation occurred in the DHO’s report that found
him guilty of the charged violation.
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4. Video Footage of Incident
Burman also argues that the DHO should have reviewed video
from a security camera and that by failing to do so he prevented
Burman from presenting his defense. As the warden points out,
however, the record does not support Burman’s argument.
There is no indication in the DHO’s report that Burman ever
asked for security camera video footage or asked the DHO to look
for or review such evidence. Further, Burman did not raise that
issue in his appeals to the Regional Director and the Office of
General Counsel. For those reasons, his claim based on a theory
that he was denied an ability to prove his defense because the
DHO did not provide or review footage from a security camera was
not exhausted.
Under these circumstances, Burman cannot bring a claim in
support of his § 2241 petition that his due process rights were
violated by the lack of video footage from a security camera.
C. Claim 3 – Sanctions of Taking Good Time Credit
In Claim 3, Burman generally challenges decisions over ten
years that resulted in taking good time credits. He makes no
specific allegations as to any particular incident and makes no
showing as to how any of his constitutional rights were
violated. Therefore, Burman does not state a claim on which
relief may be granted.
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Conclusion
For the foregoing reasons, the warden’s motion for summary
judgment (document no. 19) is granted as to Claim 2 and Claim 3.
The motion is denied as to Claim 1, without prejudice to filing
a motion for summary judgment with adequate support to show a
failure to exhaust administrative remedies or to show that Claim
1 fails on the merits.
SO ORDERED.
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 14, 2021
cc: Allah Burman, pro se.
Seth R. Aframe, AUSA.
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