Reid v. Shartle, CV-15-00083-TUC-BPV

• Decision Date: 17 August 2017
• Docket Number: No. CV-15-00083-TUC-BPV,CV-15-00083-TUC-BPV
• Parties: Gordon C Reid, Petitioner, v. Unknown Shartle, Respondent.
• Court: U.S. District Court — District of Arizona

Gordon C Reid, Petitioner, v. Unknown Shartle, Respondent.

No. CV-15-00083-TUC-BPV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

August 17, 2017

ORDER

Pending before the Court is Petitioner's Amended Petition under 28 U.S.C. § 2241 by a Person in Federal Custody (Doc. 7). Respondent has filed a Return and Answer (Docs. 26, 27), and Petitioner has filed a Reply (Doc. 34) and an Affidavit in support of his Reply ("Petitioner's Aff.") (Doc. 35)¹. In accordance with the provisions of 28 U.S.C. §636(c)(1), all parties consented to proceed before a United States Magistrate Judge to conduct any and all further proceedings in this case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal isfiled. (Doc. 31). For the following reasons, Petitioner's Amended Petition is granted in part and denied in part.

I. Factual & Procedural Background

Petitioner Gordon C. Reid is an inmate currently incarcerated at the United States Penitentiary in Coleman, Florida ("USP Coleman"), in service of a 220-month sentence with three years of supervised release for violation of 18 U.S.C. § 1951(a), Interference with Commerce by Threats or Violence. (Answer at 1-2 (citing Answer, Exh. A)). Petitioner's projected release date is February 2, 2022, via good conduct time release. (Id.).

Since Petitioner was sentenced in February 2008, he has been designated to several BOP facilities throughout the country. (Answer at 2 & Exh. A, Atts. 2, 3). While incarcerated at the USP Tucson, Petitioner filed the instant action raising claims of due process violations, resulting in loss of good conduct time ("GCT"), in connection with ten disciplinary hearings at six institutions between 2008 and 2014. Specifically, Petitioner challenges:

1. Loss of 27 days of GCT arising from a July 29, 2008 incident at USP McCreary (Ground One);

2. Loss of 27 days of GCT arising from an August 4, 2008 incident at USP McCreary (Ground Two);

3. Loss of 27 days GCT regarding an April 15, 2010 incident at USP Terre Haute (Ground Three);

4. Loss of 27 days of GCT arising from an August 31, 2010 incident at USP Terre Haute (Ground Four);

5. Loss of 27 days of GCT arising from a September 22, 2011 incident at USP Pollock (Ground Five);

6. Loss of 27 days of GCT arising from a November 8, 2011² incidentat USP Pollock (Ground Six);

7. Loss of 54 days of GCT arising from a May 3, 2013 incident at USP Atwater (Ground 7) (involving two incident reports);

8. Loss of 27 days of GCT arising from a January 10, 2013³ incident at USP Atwater (Ground Eight); and

9. Loss of 27 days of GCT arising from a June 8, 2014⁴ incident at USP Tucson (Ground Nine).

Petitioner seeks to vacate all findings of the discipline hearing officers ("DHO") and to restore any and all good time credits. (Amended Petition at 9). Respondent argues that Petitioner failed to exhaust administrative remedies with regard to Grounds One through Eight and that Ground Nine is without merit. Respondent also, alternatively, argues that Grounds One through Eight are without merit as well.

II. Jurisdiction

"Federal courts are always 'under an independent obligation to examine their own jurisdiction,'... and a federal court may not entertain an action over which it has no jurisdiction." Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990), overruled in part on other grounds by City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004)). With regard to habeas petitions, federal jurisdiction is dependent upon a proper characterization of the petition. Gay v. Winn, 2009 WL 275324, *2 (D. Ariz. Feb.5, 2009).

Because Petitioner challenges the manner or condition of the execution of hissentence, Petitioner's claim is properly filed pursuant to § 2241. See e.g. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) ("Habeas corpus jurisdiction is available under 28 U.S.C. sec. 2241 for a prisoner's claims that he has been denied good time credits without due process of law."), overruled on other grounds by Nettles v. Grounds, 830 F.3d 922, 932 (9th Cir. 2016); see also Nettles, 830 F.3d 922 (discussing types of claims that fall within the core of federal habeas actions). Further, because Petitioner was incarcerated at the Federal penitentiary in Tucson, Arizona, when he filed this action, this Court retains jurisdiction to consider the Amended Petition despite Petitioner's subsequent transfer to FCC Coleman, Florida. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990) ("jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.") (internal quotation marks and citation omitted).

III. Exhaustion

Federal prisoners are generally required to exhaust available administrative remedies before filing a habeas corpus petition pursuant to 28 U.S.C. § 2241. See Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). The failure to satisfy the exhaustion requirement applicable to section 2241 proceedings is not jurisdictional. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54-55 (1995). Thus, where a federal prisoner fails to properly exhaust administrative remedies prior to filing a § 2241 petition, the district court has discretion to waive the exhaustion requirement and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court. Id.

The district court may exercise its discretion to waive the exhaustion requirement if the administrative remedy is inadequate, ineffective, or if attempting to exhaust would be futile or cause irreparable injury. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993); United Farm Workers of America v. Arizona Agr. Emp't. Relations Bd., 669 F.2d 1249, 1253 (9th Cir. 1983). Factors weighing in favor ofrequiring exhaustion include whether: (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct is own mistakes and to preclude the need for judicial review. Noreiga-Lopez v. Ashcroft, 335 F.3d 874, 880-81 (9th Cir. 2003) (citing Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)). See also Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983) (recognizing that requiring exhaustion of administrative remedies "will aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings.").

Accordingly, if the petitioner has not properly exhausted his claims, the district court may either "excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court[,]" Brown, 895 F.2d 535, unless such remedies are no longer available, in which instance the petitioner may have procedurally defaulted on his claims, see Francis, 894 F.2d at 354-55 & n. 2 (applying procedural default rules to administrative appeals). If a prisoner is unable to obtain an administrative remedy because of his failure to administratively appeal in a timely manner, then the petitioner has procedurally defaulted his habeas corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis, 894 F.2d at 354; Martinez, 804 F.2d at 571). If the claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492 (1986) (cause and prejudice test applied to procedural defaults on appeal); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906-08 (9th Cir. 1986) (cause and prejudice test applied to pro se litigants).

The BOP has established an administrative remedy process permitting an inmate to seek review of an issue relating to "any aspect of his/her own confinement." 28 C.F.R. § 542.10(a). The BOP's Administrative Remedy program requires the prisoner to submit a formal written Administrative Remedy request within "20 calendar days following the date on which the basis for the Request occurred." 28 C.F.R. § 542.14(a)-(b). Where the prisoner seeks to appeal a DHO finding, the formal request is to be submitted directly to the appropriate regional office. 29 C.F.R. § 542.14(d)(2). "An inmate who is not satisfied with the Regional Director's response may submit an Appeal ... to the General Counsel within 30 calendar days of the date the Regional Director signed the response." 29 C.F.R. § 542.15(a). The time limits may be extended upon a showing of a valid reason for the delay. Id. "Appeal to the General Counsel is the final administrative appeal." Id.⁵

Respondent contends that Petitioner failed to exhaust administrative remedies as to each of the incidents reports challenged in Grounds One through Eight. In arguing that Petitioner did not exhaust administrative remedies, Respondent relies upon the declaration of Theresa T. Talplacido, a BOP employee with access to inmate disciplinary records, who states that administrative remedies were not exhausted for Grounds One through Eight. (See Answer, Exh. A at ¶¶6-7).

A. Grounds One and Two

Petitioner asserts in his verified Amended Petition that he was unable to exhaust Grounds One and Two because he did not receive a copy of the BP-10 (regional...