United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY UNITED STATES DISTRICT JUDGE.
Rosario, an inmate at FCI Danbury, brings this action pro se
pursuant to 28 U.S.C. § 2241 claiming that he was denied
due process in connection with a prison disciplinary
proceeding that resulted in his confinement in disciplinary
segregation and loss of good conduct time. Respondent argues
that the petition should be denied because the record
establishes that petitioner has failed to exhaust
administrative remedies and was afforded all the process he
was due. I agree and therefore dismiss the petition.
record shows the following. On November 15, 2014, petitioner
was charged with the prohibited act of Threatening Another
With Bodily Harm, which is classified as a High Severity
offense. See 28 C.F.R. Part 541, Subpart A,
“Table 1 - Prohibited Acts and Available Sanctions. The
charge was based on an incident at FCI Danbury earlier that
day involving a correctional officer and petitioner.
According to the officer's written report of the
incident, the officer spoke with petitioner while conducting
rounds in petitioner's housing unit. Petitioner told the
officer he was working too hard and needed to relax because
some inmates did not like to be “mess[ed] with.”
Petitioner stated that the officer could be jumped. When the
officer told petitioner that he was just doing his job,
petitioner again stated that the officer could be jumped.
November 16, the officer's report of the incident was
issued to petitioner. Lieutenant North interviewed petitioner
concerning the report. Petitioner admitted making the
statements attributed to him in the report but claimed
“We were just joking around.” Lieutenant North
concluded that the incident report was accurate and referred
the matter to the Unit Disciplinary Committee.
November 24, Correctional Counselor Rivera conducted a Unit
Disciplinary Committee Review, forwarded the matter to a
Disciplinary Hearing Officer (“DHO”), provided
petitioner with notice of a disciplinary hearing, and advised
him of his rights.
November 25, a disciplinary hearing was held. Petitioner
acknowledged the incident report was correct but claimed he
did not intend to threaten the officer. The DHO concluded
that petitioner had threatened the officer with bodily harm
and imposed the following sanctions: 27 days loss of good
conduct time, 20 days confinement in disciplinary
segregation, 90 days loss of email privileges, and 90 days
loss of commissary privileges.
action, petitioner challenges the disciplinary finding on the
ground that he was denied due process. He also contends that
he was unable to appeal the disciplinary finding because
documents were not delivered to him in a timely manner.
petition pursuant to 28 U.S.C. § 2241 may be used by a
federal prisoner to expunge disciplinary sanctions, including
loss of good time credit. Carmona v. United States Bureau
of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Before
commencing an action under § 2241, a prisoner must
exhaust administrative remedies. Id. at 634. The
purposes of the exhaustion requirement include
“protecting the authority of administrative agencies,
limiting interference in agency affairs, developing the
factual record to make judicial review more efficient, and
resolving issues to render judicial review
unnecessary.” Beharry v. Ashcroft, 329 F.3d
51, 62 (2d Cir. 2003). Respondent has shown that petitioner
failed to comply with applicable regulations of the Bureau of
Prisons and thus failed to exhaust his administrative
regulations provide that disciplinary findings may be
appealed to the Regional Director within 20 calendar days of
the date of decision. 28 C.F.R. §§ 542.14(d)(2),
542.15(a). A final appeal may be submitted to the General
Counsel's Office within 30 calendar days of denial of
relief by the Regional Director. Id. The filing date
of an appeal is the date it is received. 28 C.F.R. §
542.18; see also Marra v. Baird, No. 3:14-CV-1011
(AVC), slip op. 9 (D. Conn. Apr. 9, 2015). The time limits at
any level of review may be extended for a valid reason. 28
C.F.R. §§ 542.14(b), 542.15(a).
administrative record establishes that petitioner did not
comply with the regulations. He received a copy of the DHO
report on November 25, 2014. In order to satisfy the 20-day
period for a timely appeal, he had to submit documents to the
Regional Director by December 15. He missed the deadline by
approximately 9 days and his appeal was rejected as untimely.
He was promptly notified that he could resubmit the appeal
within 10 days supported by staff verification that the
untimely filing was not his fault. Petitioner resubmitted the
appeal beyond the 10-day period and it too was rejected as
untimely. At that time, he was given another opportunity to
resubmit the appeal supported by staff verification regarding
the delay in filing but he took no further action.
to exhaust administrative remedies results in a procedural
default, which bars judicial review of the defaulted claim
unless the prisoner shows that the failure to exhaust should
be excused. See Carmona, 243 F.3d at 634.
Non-exhaustion may be excused if the prisoner shows cause and
prejudice, such as “legitimate circumstances beyond the
prisoner's control [that] preclude[d] him from fully
pursuing his administrative remedies.” Id.
on the administrative record, it is apparent that petitioner
filed his appeal after the 20-day deadline expired, failed to
resubmit the appeal in a timely manner despite being given
notice and an opportunity to do so, and ultimately abandoned
the appeal. This constitutes a failure to exhaust. See
Champley v. Baird, No. 3:11CV635 VLB, 2012 WL 2872833,
at *3 (D. Conn. July 11, 2012). Accordingly, petitioner has
the burden of showing that circumstances beyond his control
prevented him from fully pursuing his remedies.
Carmona, 243 F.3d at 634. In the absence of a
showing of ...