United States District Court, S.D. West Virginia, Beckley
MEMORANDUM OPINION AND ORDER
W. VOLK, UNITED STATES DISTRICT JUDGE
is the Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2241 [Doc. 2], filed September 20, 2018. This action
was previously referred to United States Magistrate Judge
Omar J. Aboulhosn for submission of proposed findings and a
recommendation (“PF&R”). Respondent filed a
Response to Order to Show Cause on November 16, 2018, to
which Petitioner Jonathan Allen replied on December 6, 2018
[Doc. 15, 17]. Magistrate Judge Aboulhosn filed his PF&R
on June 26, 2019, recommending that the Court dismiss the
petition and remove this matter from the Court's docket
[Doc. 22]. Mr. Allen timely objected to the PF&R on July
12, 2019 [Doc. 24].
Court is required “to make a de novo
determination of those portions of the report or specified
findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). Mr. Allen first
objects to the Magistrate Judge's conclusion that he
failed to properly exhaust his administrative remedies.
Specifically, Mr. Allen contends that he “filed appeals
at every level and received a response from the [Central
Office] thus exhausting the appeal process.” [Doc. 24
at 2]. Mr. Allen further argues that he properly exhausted
his administrative remedies, despite his failure to attach
the Discipline Hearing Officer (“DHO”) report,
because such attachment was not required. [Id. at
Federal Bureau of Prisons' (“BOP”)
administrative remedy procedures state that an inmate has
twenty calendar days to file an appeal of the DHO's
decision on a BP-10 form after receiving an unfavorable
response from the Warden. 28 § C.F.R. 542.15(a) and (b).
In the instant matter, the DHO conducted a hearing on July
17, 2018, after a SIM card was allegedly found in a locker
containing Mr. Allen's belongings. On July 31, 2018, Mr.
Allen began the formal administrative remedy process by
completing a B-10 form appealing the DHO's decision that
Mr. Allen committed a prohibited act by possessing the SIM
card. On August 6, 2018, Mr. Allen's appeal was received
by the Mid Atlantic Regional Office. On August 13, 2018, Mr.
Allen's appeal was rejected by the Regional Office for
failure to attach the DHO report to his B-10 form.
receiving the rejection notice, Mr. Allen filed an appeal of
the DHO's decision with the Central Office, which was
received on September 7, 2018. On September 21, 2018, the
Central Office rejected the appeal because it was submitted
to the wrong level and should have been submitted to the
Regional Office. The Central Office's rejection notice
concurred with the Regional Office's rationale for
rejection of Mr. Allen's appeal and instructed him to
“follow directions provided on prior rejection
notice.” [Doc. 17 at 11]. Thereafter, Mr. Allen filed
this action on September 20, 2018. On November 5, 2018, the
DHO report was prepared and provided to Mr. Allen on November
6, 2018. The DHO report advised Mr. Allen of his “right
to appeal this action within 20 calendar days under the
Administrative Remedy Procedure, ” which he failed to
do. [Doc. 15-1 at 20]. Accordingly, Mr. Allen clearly failed
to exhaust his administrative remedies as required by the BOP
administrative remedy procedures after he received a copy of
the DHO report on November 6, 2018.
Mr. Allen argues that the administrative remedy process does
not explicitly require attachment of the DHO report to the
BP-10 form; thus, he properly exhausted all of his
administrative remedies prior to receiving his DHO report. In
support of this argument, Mr. Allen cites to Custard v.
Oliver, 2015 WL 9185746 (D. Colo. Dec. 17, 2015), which
he asserts established that he was not required to attach the
DHO report to his BP-10 form. However, contrary to Mr.
Allen's assertion, in Custard, the Court held
that the petitioner failed to properly exhaust his
administrative remedies “by refusing to comply with the
North Central Regional Office's instructions to either
submit a copy of the DHO report, or identify the charges and
date of the DHO action, regardless of whether such
requirements are specified in the Code of Federal
Regulations.” Id. at *5 (emphasis added);
see also Strouse v. Wilson, 2014 WL 843276, *5 (E.D.
Va. March 4, 2014) (finding the petitioner failed to properly
exhaust his administrative remedies when he failed to attach
a copy of the DHO report to his BP-10 form),
aff'd, 575 Fed. App'x 115 (4th Cir. 2014).
Therefore, it is clear that Mr. Allen failed to properly
exhaust his administrative remedies when he did not attach
his DHO report to his BP-10 form as directed by the Mid
Atlantic Regional Office's rejection letter.
even assuming Mr. Allen properly exhausted his administrative
remedies, his argument that his due process rights were
violated because prison officials failed to draft an incident
report immediately after the incident occurred is without
merit. Specifically, Mr. Allen argues that prison officials
failed to follow the requirements of 28 C.F.R. §
541.5(a) when they drafted his incident report “roughly
72 hours” after the incident, as opposed to immediately
thereafter. [Doc. 24 at 7]. However, the regulation cited to
by Mr. Allen does not require that an incident report be
written immediately after the incident occurs; instead, the
regulation provides that an inmate will
“ordinarily receive the incident report within
24 hours of the staff becoming aware of [the inmate's]
involvement in the incident.” 28 C.F.R. §
541.5(a). Moreover, prison officials' failures to abide
by their own regulations alone is insufficient to support a
due process violation. See Smith v. Cross, 2010 WL
5525178, *5 (N.D. W.Va. June 11, 2010) (finding no denial of
petitioner's due process guarantees when he was not
provided a copy of the incident report until seven days after
the incident occurred). Accordingly, the failure of the
prison officials to draft the incident report immediately
after the incident occurred did not violate Mr. Allen's
due process rights.
Allen next contends that his due process rights were violated
because he was denied his right to call a witness at his DHO
hearing. Specifically, Mr. Allen asserts that his witness was
“reasonably available” to testify at his DHO
hearing “and to conclude otherwise is plain
error.” [Doc. 24 at 8]. The United States Supreme Court
has established the minimum procedural safeguards an inmate
subject to disciplinary sanctions affecting the duration of
his sentence is entitled. See Wolff v. McDonnell,
418 U.S. 539, 94 S.Ct. 2963 (1974). One such safeguard is the
right to present evidence and call witnesses so long as
institutional safety or correctional goals are not
jeopardized. Id., 418 U.S. at 566, 94 S.Ct. 2979.
Furthermore, 28 C.F.R. § 541.8(f)(3) provides that an
inmate or staff representative may request the appearance of
witnesses to testify on the inmate's behalf; however,
“requested witnesses may not appear if, in the
DHO's discretion, they are not reasonably available,
their presence at the hearing would jeopardize institution
security, or they would present repetitive evidence.”
to the DHO hearing, Mr. Allen indicated that he wished to
call two inmates as witnesses. [Doc. 4 at 4]. At the DHO
hearing, one of Mr. Allen's listed witnesses was called.
[Doc. 15-1 at 18]. In regard to the second witness, Mr.
Allen's staff representative stated to the DHO that the
witness had been released to a halfway house. [Id.
at 17]. Mr. Allen's staff representative further
explained that he had attempted to contact the witness at his
last known number but was unable to reach him.
[Id.]. Given that the witness had been released to a
halfway house and Mr. Allen's staff representative
attempted to contact the witness but was unsuccessful, Mr.
Allen's argument that the witness was reasonably
available is without merit. Further, the record is void of
any evidence that Mr. Allen was denied his right to call
witnesses who were reasonably available at the time of the
DHO hearing. Additionally, Mr. Allen's remaining
assertions that his due process rights were violated have
been considered and are also without merit.
these reasons, the Court OVERRULES Mr.
Allen's objections [Doc. 24], ADOPTS the
PF&R [Doc. 22], DISMISSES the Petition
for Writ of Habeas Corpus [Doc. 2], and
DIRECTS the ...