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HOWELL v. REVELL

October 19, 2005.

GEORGE T. HOWELL, III, Petitioner,
v.
SARAH REVELL,[fn2] Respondent.



The opinion of the court was delivered by: CLIFFORD PROUD, Magistrate Judge

*fn2 The proper respondent is the person who has custody of petitioner, i.e., the warden. As Sarah Revell is now the warden of FCI-Greenville, she has been substituted as respondent. See, Fed.R.Civ.P. 25(d).

George T. Howell, III, is an inmate in the custody of the Bureau of Prisons. He has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent has filed a Response (Doc. 9), to which petitioner has replied (Doc. 10).

Petitioner was convicted of being a felon in possession of a firearm in the Northern District of Illinois, and sentenced to 210 months imprisonment. He began serving his sentence on June 1, 1993, and the projected date of his release is December 21, 2007. See, Doc. 9, Ex. A.

  Petitioner claims that he is entitled to habeas relief because he was denied due process in relation to a prison disciplinary hearing in 2004. He was found guilty of a violation and lost 27 days of good conduct credit. He alleges that he was not given a copy of the Disciplinary Hearing Officer's Report, and was therefore unable to appeal the decision.

  In early 2004, Howell was housed at FMC-Rochester. He was charged in an incident report with making sexual proposals or threats to another on February 7, 2004. The incident report was assigned number 1189251. He was alleged to have made statements of a suggestive nature to S. Dosanj, a female case manager at FMC-Rochester. He was given a copy of the incident report, and advised of his right to remain silent. He was given written notice of the hearing, and did not request any witnesses. Mr. Howell was given a document entitled "Inmate Rights at Disciplinary Hearing," which he signed. Included among the enumerated rights is the right to receive a copy of the hearing officer's decision in writing, and to appeal from that decision. Doc. 9, Ex. B.

  Respondent properly admits that petitioner had a due process right to receive the Disciplinary Hearing Officer's report. See, Doc. 9, p. 8; Wolff v. McDonnell, 418 U.S. 539, 564-565, 94 S.Ct. 2963, 2979 (1974). Respondent denies that Howell is entitled to habeas relief because, first, he did in fact receive a copy of the report, and, in any event, he failed to exhaust administrative remedies.

  The Disciplinary Hearing Officer's report (DHO report) was dated March 16, 2004. A copy of the three page document is located at Doc. 9, Ex. C. The DHO report states that Howell admitting making the statements attributed to him in the incident report. The DHO found that Howell had violated Code 298 by interfering with staff in the performance of their duties. The charge was changed to Code 298 from Code 206 because the statements made by Howell "were proposing an inappropriate relationship rather than an actual sexual threat." The form states on the third page that a copy was given to Howell on March 18, 2004, by "B. Blomgren."

  Petitioner denies that he received a copy of the report. He points out that he was transferred from FMC Rochester to FCI Greenville, his current institution, on March 17, 2004. This information is verified by a document attached to the Response, Doc. 9, Ex. A. Respondent does not give any information on whether B. Blomgren was assigned to Rochester or to Greenville. There is no statement of the manner in which the DHO report was given to Howell. Under the circumstances, the Court does not find this argument persuasive.

  Respondent also asserts that Howell admitted that he received a copy of the report in a Request for Administrative Remedy stamped "Received May 28, 2004," and attached to Doc. 1. Although it is difficult to read, it appears that petitioner is stating in the Request for Administrative Remedy that he received a different DHO report on May 18, 2004, relating to incident report number 120299. There is no admission by petitioner that he received the DHO report in issue here.

  Respondent had not demonstrated that petitioner was, in fact, given a copy of the report. However, because petitioner did not exhaust his administrative remedies, his petition must be denied.

  Petitioner was required to exhaust administrative remedies by utilizing the prison's grievance procedure. The Bureau of Prisons has created an Administrative Remedy Program, which is the "process through which inmates may seek formal review of an issue which relates to any aspect of their confinement." 28 C.F.R. § 542.10. Under this program, in most instances, a federal prisoner files his initial grievance on a BP-9 form. 28 C.F.R. § 542.14. If dissatisfied with the disposition of the grievance, the inmate may appeal to the Regional Director using a BP-10 form. 28 C.F.R. § 542.15. However, the procedure is different for appeals from a disciplinary hearing. "DHO appeals shall be submitted initially to the Regional Director for the region where the inmate is currently located." 28 C.F.R. § 542.14(d). If dissatisfied with the result on the Regional Office level, further appeal to the General Counsel is perfected using a BP-11 form. 28 C.F.R. § 542.15. Appeal to the General Counsel is the final level of administrative appeal. Id. Thus, exhaustion of administrative remedies requires the filing of a BP-11.

  The exhaustion requirement for a § 2241 case is not created by statute, and is not jurisdictional. Nonetheless, the Seventh Circuit has clearly stated that exhaustion is required in cases such as this. Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir. 1983). Jackson was a habeas case in which petitioners claimed their due process rights were violated by prison disciplinary procedures. Howell does not contend that he was not required to exhaust administrative remedies.

  In this case, the grievance process was complicated by the fact that, while Howell complained about not getting a copy of the DHO report, the relief he sought was not simply to receive a copy of the report. Rather, he asked to have the incident report expunged. Expunging an incident report is relief that cannot be granted at the institutional level by the warden. Accordingly, a grievance about discipline imposed after a DHO proceeding must be initiated by filing a BP-10 to the Regional Director. 28 C.F.R. § 542.14(d).

  Howell attached documents to his habeas petition that demonstrate the following sequence of events:
• On April 5, 2004, Howell sent to the Regional Counsel (not the Regional Director) a BP-10 and a copy of an 11 page complaint. His cover letter asked the Regional Counsel to give the BP-10 to the Administrative Remedy Coordinator. The record does not contain a copy of the BP-10 itself.
• On April 12, 2004, and April 22, 2004, Howell requested his correctional counselor, T. Black, to find out what happened to the BP-10 that he had mailed to the Regional Counsel
• On April 28, 2004, Howell submitted a BP-10 to the Regional Director in which he stated that the Regional Counsel Daryl Kosiak and the Remedy Coordinator had retaliated against him by failing to process the documents he had sent in his April 5, 2004, letter. The April 28, 2004, BP-10 did not state that the original BP1-0 was for failing to give him a copy of a DHO report, and it did not reference in any way the fact that the grievance was related to a disciplinary hearing. • On May 7, 2004, the Regional Office sent a rejection notice. The April 28, 2004, BP-10 was rejected because Howell had not attempted informal resolution or filed a BP-9 to the warden.
• On May 19, 2004, Howell submitted a BP-9 to the warden, in which he stated that the Regional Counsel and Remedy Coordinator failed to file his BP-10 against I.R. #1189251 "for failing to provide me with a timely DHO report." He requested that the incident report be "dismissed and expunged."
• On May 28, 2004, the warden rejected the BP-9 because "If you are requesting your incident report be expunged, you need to file a BP-10 to the Regional Office."
• Howell prepared a BP-10 dated May 11, 2004, but obviously completed on a later date, as it refers to later events. In it, he recites that his April 5, 2004, BP-10 had been sent to the Regional Counsel and that he had never received a response. He states that he filed a BP-9 to the warden, who rejected it on May 28, 2004, because the warden cannot expunge an incident report. He again states that he wants the report expunged and his good conduct time returned.
• On June 24, 2004, the Regional Office rejected the BP-10 because he did not provide a copy of the DHO Report or "identify the charges and date of the DHO action." The notice stated that he could resubmit his appeal within 15 days.
• Instead of resubmitting his appeal to the Regional Office, on July 13, 2004, Howell filed a BP-11 in which he stated he was appealing from "all stages thus far of the ...

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