United States District Court, S.D. Illinois
October 19, 2005.
GEORGE T. HOWELL, III, Petitioner,
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,
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
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.
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
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 rejection notices I've received in
Remedy NO. 335958-R1, IR #1189251." He stated that he
had not been provided a copy of the DHO Report within
ten days of the hearing held on February 24, 2004.
On August 3, 2004, the appeal was rejected by the
Central Office because Howell did not provide a copy
of the DHO report, or identify the charges and date
of the DHO action, or provide copies of the BP-10 or
BP-10 response from the Regional Director. The notice
stated that he could resubmit his appeal within 15
Rather than resubmit his appeal, Howell filed his habeas
petition in this Court on August 25, 2004.
Respondent points out that Howell sent the initial grievance to
the wrong office. The April 5, 2004, BP-10 was sent to the
Regional Counsel and not the Regional Director, as required.
When he did not receive an acknowledgment of receipt of that
grievance, Howell filed another BP-10, which he apparently sent
to the Regional Director, in which he complained that the Regional Counsel and Remedy Coordinator had retaliated
Howell's reply does not address the fact that he sent his
initial BP-10 to the wrong person. Instead, he claims that
respondent's Exhibit E proves that his April 5, 2004, BP-10 was
received by the North Central Regional Office. Respondent's
Exhibit E is a listing of the many grievances filed by Howell
from 1993 to March 21, 2005. The exhibit is 12 pages long, and
reflects that Howell has filed numerous grievances regarding DHO
appeals and seeking to have incident reports expunged. Howell
asserts that the fourth entry on page 10, which shows receipt of
an administrative remedy "inmate requests an incident report be
expunged," indicates that the BP-10 he mailed to the Regional
Counsel was received and should have been processed. The flaw in
his argument is that the entry he cites clearly indicates that
the administrative remedy was received on April 5, 2004. Howell's
cover letter to the Regional Counsel was dated April 5, 2004, and
obviously could not have been received in the Regional Office in
Kansas City on that date.
Howell's reply does not directly answer the argument of failure
to exhaust. He simply states that the documents attached to his
petition show "a complete above and beyond exhausting of
administrative remedies." Doc. 10, p. 8, ¶ 12. In fact, those
documents establish that Howell failed to exhaust his
administrative remedies in that he sent the first BP-10 to the
wrong person, and never perfected an appeal all the way through
to the General Counsel per 28 C.F.R. § 542.15.
This case is factually similar to Anderson v. Miller,
772 F.2d 375 (7th Cir. 1985). The petitioners in that case were
also seeking habeas relief with regard to prison disciplinary
proceedings. They submitted BP-11 forms which were rejected
because they did not attach copies of the completed BP-9 or BP-10
forms. Anderson, 772 F.2d at 377. As in the instant case, the petitioners were notified of the defect and given a
chance to correct it, but they filed habeas petitions instead.
Anderson, 772F.2d at 378. The Seventh Circuit rejected the
petitioners' argument that their failure to follow the
regulations should be excused because they had submitted
everything they had along with their BP-11 forms. The Court
We recognize that there will be some difficulty
encountered by prisoners acting pro se in complying
with administrative requirements. We also must
recognize that these requirements are a necessary
part of maintaining an orderly and manageable
prisoner dispute resolution system. The BOP's filing
requirements are not unreasonable in view of the
obvious need of the General Counsel to review the
Warden's and Regional Director's responses to the
claim before him.
Anderson, 772 F.2d at 379.
Habeas relief was denied in Anderson because the petitioners
were held to have "deliberately bypassed" the administrative
remedy procedure. Anderson, 772 F.2d at 378-379. Subsequent to
Anderson, the Seventh Circuit has applied a cause and prejudice
analysis to a federal prisoner's failure to exhaust
administrative remedies; that is, his habeas petition can proceed
only if he can show both cause for his procedural default and
prejudice See, Sanchez v. Miller, 792 F.2d 694 (7th Cir.
Under either framework of analysis, Howell's petition must be
dismissed. This Court finds that Howell has deliberately bypassed
the administrative remedy procedure. In addition, he has failed
to demonstrate cause for his procedural default.
Although Howell has not explicitly conceded that he failed to
exhaust, the Court interprets his second ground for habeas relief
as an attempt to demonstrate cause. Petitioner's second ground is
that the BOP failed to follow its own policy when it rejected his
request for appeal. Howell states that he attached "all
documentation in his possession" with his BP-11. Doc. 1,
pp6b-6c. He does not specify exactly what he attached to the
BP-11. He acknowledges that the rejection notice stated that he
could resubmit his appeal within 15 days, but he offers no explanation for why he did not resubmit the appeal.
Cause in this context means "some external objective factor,
such as interference by officials or unavailability of the
factual or legal basis for a claim, which impeded compliance with
the state's [or the prison's] procedural rule." Barksdale v.
Lane, 957 F.2d 379, 385 (7th Cir. 1992); see also, Murray
v. Carrier, 477 U.S. 478, 488 (1986). No such external
objective factor is demonstrated by the record here. Howell is
quite familiar with the prison administrative remedy system and
has utilized it many times over the years, as is demonstrated by
respondent's Exhibit E. He was required to follow the rules in
order to perfect his appeal. Anderson, 772 F.2d at 379. He
sent his first BP-10 to the Regional Counsel instead of the
Regional Director. Rather than simply correcting that mistake and
submitting a BP-10 seeking a copy of the DHO report to the
correct person, he chose to pursue a new claim, i.e., that the
Regional Counsel and Remedy Coordinator had retaliated against
him. He never exhausted administrative remedies because he
elected to file his habeas petition instead of resubmitting his
appeal with all the required documentation, as directed in the
rejection notice. This record does not demonstrate cause for his
failure to exhaust.
The petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 is DISMISSED WITHOUT PREJUDICE for failure to exhaust
IT IS SO ORDERED.
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