Opinion
21-CV-3202 (JPC) (RWL)
07-07-2022
LUIS J. ROSARIO-SANTIAGO, Plaintiff, v. MR. W. S. PLILER, Warden, Defendant.
REPORT AND RECOMMENDATION TO HON. JOHN P. CRONAN: PETITION FOR HABEAS CORPUS
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
Petitioner Luis Rosario-Santiago (“Rosario-Santiago” or “Petitioner”), proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 against W.S. Pliler, Warden, FCI-Otisville (“Warden” or “Respondent”), challenging the revocation of 27-days Good Conduct Time as penalty for a disciplinary offense related to his violation of telephone monitoring procedures. Petitioner contends that he exhausted all administrative remedies and that his petition should be granted because the Disciplinary Hearing Officer (“DHO”) violated his due process rights, and because he did not commit the prohibited act with which he was charged. Petitioner also requests an evidentiary hearing to have the opportunity to present evidence that would prove his due process rights were violated. For the reasons set forth below, I recommend that the petition be DENIED.
Background
A. Petitioner's Conviction
On June 20, 2012, a grand jury indicted Petitioner with conspiracy to possess and intent to distribute a controlled substance in the District of Puerto Rico. Dkt. 196, United States v. Ramos-Pineiro et al., No. 12-CR-200 (D.P.R. June 20, 2012). On February 5, 2013, Petitioner pled guilty to conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d). Dkt. 73, United States v. Ramos-Pineiro et al., No. 12-CR-200 (D.P.R. Feb. 5, 2013). On May 7, 2013, Petitioner was sentenced to a 348-month term of imprisonment. Dkt. 994, United States v. Ramos-Pineiro et al., No. 12-CR-200 (D.P.R. May 13, 2013).
B. The Prohibited Conduct Violation
On October 5, 2020, Petitioner was observed via camera surveillance and telephone monitoring using another inmate's PIN number to place a telephone call that lasted eleven minutes. (Peakes Decl., Ex. A at 1 (“Incident Report”).) Several hours later, Petitioner was issued the Incident Report charging him with violating Prohibited Act 297 for using a telephone in a way that circumvents telephone monitoring procedure.(See Incident Report at 1.) As an explanation for his conduct, Petitioner stated that “I used the phone because [I] needed money and needed to call.” (Incident Report at 1.) Petitioner was advised of his rights, and the charge was referred to a DHO for a hearing. (Incident Report at 1-2.)
“Peakes Decl.” refers to the Declaration of Marc Peakes, Legal Assistant at the Metropolitan Correctional Center in New York, NY at Dkt. 9.
Prohibited Act 297 is a “High Severity Level Prohibited Act” that bars “[u]se of the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor frequency of telephone use, content of the call, or the number called; or to commit or further a High category prohibited act.” 28 C.F.R. § 541.3(b).
C. The Disciplinary Hearing
On October 6, 2020, Petitioner declined to have a staff representative or witnesses at his disciplinary hearing. (Peakes Decl., Ex. B (“Notice of Disciplinary Hearing Before the DHO”) at 2.) On October 14, 2020, Petitioner received advanced written notice of the charge in the form of a copy of the Incident Report. (See Incident Report at 4, Peakes Decl., Ex. C at 1 (“DHO Report”).) On October 20, 2020, Petitioner was further advised of his rights before the DHO and again declined to have a staff representative or witnesses for the upcoming disciplinary hearing. (DHO Report at 4-5.)
On November 24, 2020, the DHO conducted a hearing at which Petitioner stated that he understood his rights and had no documentary evidence to present. (Id. at 1-2.) Petitioner admitted, through a staff translator, that the DHO incident report was true and stated: “I admit it. I used [another inmate's telephone PIN] for an emergency.” (Id. at 2.) Based upon the Incident Report and Petitioner's admission that the report was true, the DHO found sufficient evidence that Petitioner committed telephone abuse and violated Prohibited Act 297. (See DHO Report.)
Having found Petitioner to have violated Prohibited Act 297, the DHO disallowed Petitioner 27 days of Good Conduct Time (“GCT”), 30 days suspended pending 180 days clear conduct, and 90 days of phone privileges lost. (Id. at 2.) The DHO Report was signed and dated by the DHO on November 25, 2020, and was delivered to Petitioner on December 2, 2020. (Id. at 3.)
D. The Attempted Appeal
On December 22, 2020, Petitioner appealed the DHO report, using a Bureau Of Prisons (“BOP”) form, known as a BP-10 Form, to request an administrative remedy. (Peakes Decl. ¶ 14.) According to Respondent, on January 27, 2021, the BOP rejected Petitioner's administrative appeal on the basis that his BP-10 submission was illegible. (Id. ¶ 15.) Rather than resubmitting a legible request as required by the regulations, Petitioner filed a BP-11 Form on March 16, 2021, appealing the decision to the BOP General Counsel's office. (Id. ¶ 16); see 28 C.F.R. § 542.17(b) (“If the defect on which the rejection is based is correctable, the notice shall inform the inmate of a reasonable time extension within which to correct the defect and resubmit the Request or Appeal.”) The General Counsel's office concurred with the Regional Director's rejection of Petitioner's appeal. (Id. ¶ 17.) Petitioner never resubmitted a legible BP-10 submission. (Id. ¶ 18.)
Procedural History
On April 9, 2021, Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. (Dkt. 1 (“Petition”).) Petitioner claimed that the 27 days of GCT were improperly withheld, and that he was “[d]enied Constitutionally provided rights as well as those under policy, regulation, and statute.” (Id.) On August 31, 2021, Respondent filed a memorandum opposing the petition. (Dkt. 8 (“Opp. Mem.”).) Petitioner replied on September 27, 2021. (Dkt. 11 (“Reply”).) Respondent filed a supplemental brief on March 4, 2022 (Dkt. 15 (“Supp. Br. ”).), and Petitioner replied on April 21, 2022. (Dkt. 23 (“Supp. Reply”).)
Legal Standards
A. 28 U.S.C. § 2241 Writ of Habeas Corpus
“The ordinary vehicle for a federal prisoner to seek habeas relief is 28 U.S.C. § 2255, under which such a prisoner may have his sentence vacated or set aside.” Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). But when a federal prisoner challenges a disciplinary sanction rather than the legality of his sentence, he may do so by petitioning for a writ of habeas corpus under 28 U.S.C. § 2241. Carmona, 243 F.3d at 632; see also Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n. 5 (2d Cir.1991). An inmate thus appropriately files a § 2241 petition when challenging the constitutionality of disciplinary proceedings or sanctions, including the loss of good time credits. See Carmona, 243 F.3d. at 632 (“appellant's petition to expunge the Bureau's disciplinary sanctions from his record, including the loss of good time credits . . . is properly brought via an application for a writ under § 2241); Grossman v. Federal Bureau of Prisons, 19-CV-5625, 2019 WL 6114881, at *4 (S.D.N.Y. Nov. 18, 2019) (“the Court concludes that Petitioner's constitutional rights were not violated by his disciplinary hearing or by the revocation of good time conduct.”); Agosto v. Hufford, 13-CV-4082, 2014 WL 2217908, at *4-5 (S.D.N.Y. May 8, 2014) (holding that Petitioner had not made a substantial showing that his constitutional right to due process was denied at his disciplinary hearing).
B. Exhaustion Requirement For Habeas Relief
Before filing a petition for habeas relief, federal prisoners must exhaust all administrative remedies or justify their failure to do so. Carmona, 243 F.3d at 634. Appeals thus must first proceed through the federal agency review process absent a showing of cause for failing to do so and prejudice. Id.; see generally Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 1591 (2000); Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577 (1973). That requirement applies no less to § 2241 petitions than to other habeas statutes. Carmona, 243 F.3d at 633. As explained by the Third Circuit Court of Appeals, “[b]y applying the cause and prejudice rule to habeas review of administrative proceedings, we insure that prisoners do not circumvent the appropriate agencies and needlessly swamp the courts with petitions for relief.” Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761 (3d Cir. 1996); accord Carmona, 243 F.3d at 630 (recognizing four principles underlying the exhaustion requirement: comity, finality, accuracy, and trial integrity).
C. Due Process Protections Afforded To Federal Inmates
The Fourteenth Amendment of the Constitution entitles federal prisoners to certain limited due process rights “when disciplinary actions subject them to further liberty deprivations such as loss of good-time credit or special confinement that imposes an atypical hardship.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004). Due process requires that a prison inmate receive “advanced written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken.” Id.
For the prison disciplinary board to comply with due process, its conclusion must be supported by “some evidence.” See Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774 (1985) (“The requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits”). If the evidence is reliable, the disciplinary board's conclusion is deemed supported. See Sira, 380 F.3d at 69; Luna v. Pico, 356 F.3d 481, 488 (2d Cir. 2004) (emphasizing the importance of assessing the reliability of available evidence); Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir. 2001) (finding that without determining the reliability of evidence, the court is left to speculate whether a decision is supported by “some evidence”); Gaston v. Coughlin, 249 F.3d 156, 163 (2d Cir. 2001) (“this Court has ruled that the ‘some evidence' standard may be met even where the only evidence was supplied by a [non-testifying] confidential informant” who provided incriminating information and there was evidence presented to the hearing officer that the information was reliable).
Discussion
There is a factual dispute as to whether Plaintiff properly exhausted his administrative remedies that cannot be resolved on the present record. Nonetheless, Plaintiff's claim fails on the merits as he was not deprived of due process. The Petition therefore should be dismissed.
A. The Court Cannot Determine On The Present Record Whether Plaintiff Failed To Exhaust Administrative Remedies
Respondent argues that Petitioner failed to exhaust his administrative remedies under the Prison Litigation Reform Act (“PLRA”) because, after submitting an illegible BP-10 Form, he failed to resubmit a legible BP-10 Form before filing a BP-11 Appeal. Petitioner argues that he did exhaust all administrative remedies because he did not receive a rejection of his BP-10 Form and waited the required amount of time before assuming rejection and filing a BP-11 Form. This issue turns on a factual dispute that cannot be resolved on the present record.
1. PLRA Exhaustion Requirements
Exhaustion of administrative remedies is mandated not only under principles governing habeas corpus, but also by statute. “The PLRA requires that a prisoner seeking to bring a lawsuit under any Federal Law must first exhaust all of his administrative remedies.” Williams v. United States, 2004 WL 906221 at *5 (S.D.N.Y. Apr. 28, 2004) (internal quotation marks omitted). The PLRA serves to provide corrections officials the opportunity to address prisoner complaints internally before being faced with the burden of federal litigation. See Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir. 2009) (internal quotation marks omitted). To exhaust a claim and be in accordance with applicable procedure, a prisoner must complete the administrative review process. See id.
2. BOP's Administrative Remedy Process
The BOP has established the Administrative Remedy Program (the “ARP”) to give federal prisoners the opportunity to seek review of an issue relating to his or her confinement. (Peakes Decl. ¶ 6.) The ARP provides a four-step process through which a federal prisoner may exhaust their administrative remedies. See generally 28 C.F.R. § 542. In accordance with the ARP, an inmate must first present his issue informally to staff by filing a BP-8 form. (Peakes Decl. ¶ 7); 28 C.F.R. § 542.13. If the issue cannot be informally resolved, an inmate may submit a formal Administrative Remedy Request to the Warden by filing a BP-9 within twenty calendar days of the date on which the basis for the request occurred. See id.; 28 C.F.R. § 542.14. An inmate who wishes to appeal the Warden's response to his formal request may submit a BP-10 Form to the appropriate Regional Director within twenty calendar days of the date of the Warden's response. 28 C.F.R. § 542.15. An inmate who wishes to appeal the Regional Director's denial may submit a BP-11 Form to the General Counsel's Office within thirty calendar days of the Regional Director's response. 28 C.F.R. § 542.15. If an inmate has not received a response to his request or appeal within the allotted time, the inmate may consider the appeal denied. See 28 C.F.R. § 542.18. For a BP-10, the allotted time is 30 days. Id.
“When an inmate appeals a DHO report, that appeal properly begins with the BP-10 Process.” (Peakes Decl. ¶ 12); 28 C.F.R. § 542.15. The BOP may reject an inmate's appeal for failing to meet procedural requirements, including failure to submit legible documents. 28 C.F.R. § 542.17(a); Crawford v. Fisher, No. CV 11-0641, 2012 WL 465767, at *3 (D. Minn. Jan. 5, 2012) (finding that a habeas petitioner who failed to resubmit a legible BP-11 Form had failed to exhaust his administrative remedies and was therefore barred from seeking federal habeas relief), R. & R. adopted, 2012 WL 446247 (Feb. 13, 2012) (affirming that petitioner had failed to exhaust his administrative remedies and therefore his habeas claim was procedurally defaulted). “When a submission is rejected, the inmate must be provided written notice ... explaining the reason for rejection. 28 C.F.R. § 542.17(b) (“If the defect on which the rejection is based is correctable, the notice shall inform the inmate of a reasonable time extension within which to correct the defect and resubmit the Request or Appeal.”).
3. Application
The parties' submissions give rise to at least two disputed fact issues for which both parties have provided inadequate support. First, Respondent contends that Petitioner's BP-10 was rejected as illegible. The support for that contention is a brief one-sentence statement of a BOP legal assistant. (Peakes Decl. ¶ 14.) That assertion, however, is not supported with any documentation. According to Petitioner, having learned about the alleged illegibility only from the Warden's opposition to the instant Petition, the BP-10 is a carbon-copy form with one original page and three copy pages, and the only possible illegibility was on the fourth copy page, leaving three duplicate legible pages. (Reply at 2-3.) Like Respondent, Petitioner does not support his assertion with documentary support. There thus is an unresolved fact issue as to whether or to what extent the BP-10 was illegible.
There also is a fact dispute as to whether Petitioner ever received the BOP response rejecting his BP-10 as illegible. That issue is material to determining whether Petitioner had cause for not properly exhausting his administrative remedies. In order to correctly comply with the ARP, Petitioner was required to resubmit a legible BP-10 Form upon rejection of his initial submission. (Peakes Decl. ¶ 13-15); 28 C.F.R. §§ 542.15, 542.17(b). Instead, Plaintiff filed a BP-11 to the BOP's General Counsel. (Peakes Decl. ¶ 16); cf. Carmona, 243 F.3d at 634-35 (denying prisoner's petition as procedurally defaulted for failure to properly appeal his dispute to general counsel); Crawford, 2012 WL 465767, at *3 (denying prisoner's petition because “Petitioner did not resubmit his appeal, but filed his habeas petition instead”).
Affording his petition a liberal reading, as the Court must for a pro se litigant,Petitioner asserts that any procedural default should be excused for cause and prejudice. Petitioner argues that he never received a rejection of his BP-10, and only filed the BP-11 Form because sixty days had passed with no response to the BP-10 he submitted. (Reply at 2); see 28 C.F.R. § 542.18 (inmate may deem BP-10 rejected after 60 days without a response). Indeed, Petitioner asserts that his BP-11 submission expressly invoked the regulatory provision permitting him to appeal after 60 days without a response to his BP-10. (Reply at 2.) Again, however, Petitioner's assertion is not accompanied by documentary support. The Court thus is left with an unresolved issue of whether Petitioner ever received the denial of his BP-10. If he did not, then his filing of a BP-11 after sixty days may satisfy the requirement to exhaust his remedies.
See Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (district courts must read pro se litigants' pleadings “liberally and interpret them to raise the strongest arguments that they suggest.”); Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (“a court is ordinarily obligated to afford a special solicitude to pro se litigants.”).
To resolve the above issues, the Court would need to obtain additional documentation and hold an evidentiary hearing. But there is no need to do so because, even if Petitioner had properly exhausted his remedies, his claim fails on the merits.
B. The BOP Did Not Violate Petitioner's Due Process Rights
The BOP provided Petitioner with sufficient due process protections and satisfied the relatively modest requirement that the disciplinary board's decision was supported by some evidence that is reliable. Petitioner's arguments to the contrary have no merit.
1. The BOP Afforded Petitioner The Requisite Procedures
The BOP granted Petitioner the limited due process protections afforded to a prison inmate, namely “advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken.” Sira, 380 F.3d at 69.
After the incident, the BOP provided Petitioner with advanced written notice of the charges against him. (Incident Report at 1). On October 14, 2020, and again on October 20, 2020, the BOP notified Petitioner of his rights to present evidence and witnesses, which he declined. (Incident Report at 5; Notice of Disciplinary Hearing Before the DHO at 1-2; DHO Report at 1.) Petitioner's hearing was conducted by a hearing officer, and there is no evidence or suggestion in the record that the hearing officer was not fair and impartial. Petitioner also received a report detailing the DHO's decision, including the evidence on which the DHO relied and its reasoning for imposing the sanctions. (See DHO Report.) Taken together, the Incident Report and DHO Report indicate that BOP afforded Petitioner all necessary due process rights. See Houston v. Linaweaver, No. 14-CV-2980, 2014 WL 3160908 at *4 (S.D.N.Y. July 15, 2014) (“The record thus disposes of [petitioner]'s claim that his good-time credits were taken from him without the procedural safeguards guaranteed by the Constitution and by federal regulations.”)
The BOP's decision also meets the evidentiary standards that “some evidence supports the decision by the prison disciplinary board to revoke good time credits,” Hill, 472 U.S. at 455, 105 S.Ct. at 2774, and that such evidence is reliable. See Luna, 356 F.3d at 488; Taylor 238 F.3d at 194. The results of the DHO hearing were based on some reliable evidence; specifically, recordings of Petitioner placing a call using another inmate's telephone PIN, video footage of Petitioner on the telephone, as well as Petitioner's admissions. (See DHO Report at 2.) The BOP thus complied with the necessary due process requirements, having afforded Petitioner the requisite procedural safeguards and satisfied the evidentiary standard on review.
2. Petitioner's Due Process Arguments Are Unfounded
Petitioner advances three arguments as to how the BOP violated his due process rights: first, the interpreter at his disciplinary hearing was biased against him and provided a meaningless admission of guilt; second, the disciplinary process demonstrated a deliberate pattern of misconduct; and third, there was insufficient evidence that his actions circumvented BOP's telephone monitoring procedures in violation of Prohibited Act 297. (Reply at 3-6; Supplemental Brief at 2.) None of those arguments stand up to scrutiny.
First, Petitioner asserts, and Respondent disputes, that Petitioner's alleged admission was the product of a biased interpreter. (Reply at 4-5.) The Court need not determine whether that assertion is true. Petitioner has readily admitted multiple times that he used the PIN code of another prisoner. (See Incident Report at 1; Reply at 6; Supp. Reply at 2.) Moreover, even absent any such admission, the video and telephone recordings of Petitioner using another prisoner's PIN are reliable evidence satisfying the requirements for a valid DHO determination. See Hill, 472 U.S. at 455, 105 S.Ct. at 2774-75; Luna, 356 F.3d 488.
Second, Petitioner points to three instances of “suspicious documentation” that are trivial matters that had no impact on the process he was afforded. (Reply at 3-5.) All three instances relate to documentation issued by the Unit Discipline Committee (“UDC”), the internal prison unit that handles disciplinary issues and decides whether to refer incident reports to the DHO for further review. 28 C.F.R. § 541.7. According to Petitioner, the documentary discrepancies evince UDC “misconduct.” (Reply at 4.)
The first example concerns the Incident Report, which initially contained the wrong date of the incident but was amended just days later to correct the date. Petitioner asserts that he did not receive the “corrected” Incident Report until after his UDC hearing. But Petitioner does not suggest that he did not have full notice of the incident at issue when the hearing occurred. The typographical error and correction thus did not prejudice Petitioner in any way. (See Reply at 4.) See Agosto, 2014 WL 2217908 at *4 (“[petitioner's] claim that [ ] the incident report was unconstitutionally deficient because it was amended twice should be denied” because petitioner's due process rights would only have been implicated if the amendments had undermined the purpose of the advanced written notice requirement). The second and third example derive from a single alleged flaw - that, according to dates and times in the documentation, Petitioner received and signed the UDC's Notice Of DHO Hearing and Notice Of Rights before he received and signed the initial Incident Report. While the timing is unclear, even accepting Petitioner's sequence of events, there was no prejudice, and he does not claim any. (See Reply at 4.)
In any event, even if such minor errors could be construed as UDC “misconduct,” as Petitioner claims, they still would not give rise to a due process violation. See Grossman, 2019 WL 6114881, at *2 (“Petitioner received all the process to which he was constitutionally entitled and any noncompliance with internal prison regulations regarding Petitioner's UDC hearing did not violate due process.”); Agosto, 2014 WL 2217908, at *3 (“[T]o the extent internal prison regulations grant protections beyond the constitutional minimum, noncompliance with those regulations do not typically offend due process.”).
Petitioner's last argument is that the evidence of his violation of Prohibited Act 297 was insufficient. Prohibited Act 297 prohibits “[u]se of the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor frequency of telephone use....” 28 C.F.R. § 541.3. Petitioner argues that he did not circumvent monitoring because BOP was watching him commit the violation in real time via security footage and had the ability to listen to the call that Petitioner knew was being recorded. (Reply at 56.) Petitioner's argument is essentially that he could not have circumvented anything because he knew calls were recorded and was caught in the act of making a call. But Petitioner misses the point. PIN usage contributes to the ability of BOP staff to monitor inmate telephone use, and abuse of another inmate's PIN interferes with that monitoring ability. Based on the plain language of the rule, the DHO correctly found Petitioner in violation of Prohibited Act 297.
Conclusion
For the foregoing reasons, the petition for writ of habeas corpus is without merit. Petitioner's arguments, to the extent not addressed above, have been considered by the Court and found to be without merit. Accordingly, I recommend that the Petition be DENIED and the action dismissed.
Procedure For Filing Objections And Preserving Right To Appeal
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Criminal Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable John P. Cronan, 500 Pearl Street, New York, New York 10007, and to Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.