UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Daniel Alley
v. Civil No. 21-cv-1026-SE Opinion No. 2022 DNH 125 Warden, FCI Berlin
O R D E R
Daniel Alley, proceeding pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging
a disciplinary proceeding that resulted in his loss of good
conduct time.1 The court found on preliminary review that Alley’s
challenge was based on a Fifth Amendment claim and ordered the
clerk to effect service. Doc. no. 3. In the service order, the
court granted Alley leave to file a supplement to his petition,
which he did. Doc. no. 5. The warden now moves for summary
judgment. Doc. no. 7. Alley objects. Because Alley did not
exhaust his administrative remedies, the warden’s motion is
granted and Alley’s claims are dismissed.
Standard of Review
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
1 Alley filed his petition when he was an inmate at the Federal Correctional Institution in Berlin, New Hampshire. He is now incarcerated at the Federal Correctional Institution in White Deer, Pennsylvania. movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A material fact is one that “carries with it the
potential to affect the outcome of the suit.” French v. Merrill,
15 F.4th 116, 123 (1st Cir. 2021) (quotation omitted). A
material fact is in genuine dispute if “a reasonable jury could
resolve the point in the favor of the non-moving party.” Id. The
court construes the record in the light most favorable to the
nonmoving party. Benson v. Wal-Mart Stores East, L.P., 14 F.4th
13, 17 (1st Cir. 2021). In considering a motion for summary
judgment, the court may review materials cited in the motion and
other materials in the record. Fed. R. Civ. P. 56(c)(1)(3).
Background
On February 25, 2021, Alley was charged in Incident Report
No. 3478123 under offense codes 203 (threatening bodily harm)
and 225 (stalking another person through repeated behavior which
harasses, alarms, or annoys the person after having been warned
to stop that conduct).2 The charges arose from Alley’s
interactions with two FCI Berlin employees, Counselor C. Napier
2 In his supplement, Alley states that he is innocent of the conduct charged in Incident Report No. 3477105, which is not the Incident Report that is the subject of his petition. Alley’s allegations in the supplement, however, pertain entirely to Incident Report No. 3478123 and the claims alleged in his petition. The court assumes that Alley’s reference to Incident Report No. 3477105 in the supplement is a mistake.
2 and Lieutenant A. McCormack, regarding Alley’s repeated and
unsuccessful requests to change prison cells.
A Discipline Hearing Officer (“DHO”) held a hearing on
March 16, 2021. At the hearing, the DHO informed Alley that she
was changing the charged violation of Code 225, stalking, to
violation of Code 312, insolence. The DHO found after the
hearing that Alley had committed the charged acts under Code 203
and Code 312. She imposed sanctions, which included the loss of
good conduct time. Alley filed a petition for habeas corpus
relief alleging constitutional violations in connection with his
disciplinary proceeding.
Discussion
The warden seeks summary judgment, arguing that Alley
failed to exhaust his available administrative remedies before
filing his habeas petition. The Prison Litigation Reform Act
(“PLRA”) requires prisoners to exhaust all available
administrative remedies before seeking relief in federal court.
42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 90–91
(2006). To exhaust his or her administrative remedies properly,
“a prisoner must file complaints and appeals in the place, and
at the time, the prison’s administrative rules require.” Acosta
3 v. U.S. Marshals Serv., 445 F.3d 509, 512 (1st Cir. 2006); see
Woodford, 548 U.S. at 90–91.
The BOP has established an administrative appeal process
that allows prisoners to seek formal review of their complaints.
See 28 C.F.R. §§ 542.10–542.19. Where, as here, the prisoner
appeals a DHO’s decision, step one requires the prisoner to
submit his appeal to the Regional Director for the region in
which the prisoner is currently located. Id., § 542.14(d)(2). If
the prisoner is dissatisfied with the Regional Director’s
response, step two requires the prisoner to appeal the decision
to the General Counsel within 30 calendar days of the date the
Regional Director issues a response. Id., § 542.15(a). Filing an
appeal with “the General Counsel is the final administrative
appeal.” Id. Once the prisoner has received a decision from the
General Counsel, he has exhausted the BOP’s two-step
administrative-remedy process. See id. Only then can the
prisoner seek relief in federal court. Woodford, 548 U.S. at 90-
91. A failure to exhaust administrative remedies may be excused,
however, when the remedies are not available or when the prison
administration prevents an inmate from using the process. Fox v.
Hazelwood, No. 21-CV-159-PB, 2022 WL 2907992, at *1 (D.N.H. July
22, 2022).
4 The warden moves for summary judgment on the ground that
Alley did not complete the administrative process because he did
not file a timely appeal with the General Counsel. In response,
Alley contends that he filed his appeal to the highest
administrative level and did so in as timely a fashion as
possible. He asserts that to the extent the court deems his
appeal untimely, it should excuse his failure to exhaust.
I. Alley’s Appeal of the DHO’s Decision3
Alley appealed the DHO’s decision to the Regional Director,
Northeast Regional Office. The Regional Director received the
appeal on April 6, 2021, and rejected it on April 30, 2021,
because certain pages were illegible. The notice of rejection
directed Alley to refile his appeal.
Alley refiled his appeal in accordance with the directions.
After reviewing it on the merits, the Regional Director issued a
response, concluding that “[t]he DHO reasonably determined
[Alley] committed the prohibited acts based on section 11 of the
Incident Report and supporting evidence.” Doc. no. 1-1 at 12. As
a result, the Regional Director denied Alley’s appeal.
3 The timeline of events is taken from evidence in the record submitted by both parties, viewed in the light most favorable to Alley.
5 The Regional Director’s response is dated August 16, 2021.
The last paragraph in the response notified Alley that he could
appeal to the Office of General Counsel and that the office must
receive his appeal within 30 days of the date of the response.
Alley filed an appeal on October 9, 2021. The General
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Daniel Alley
v. Civil No. 21-cv-1026-SE Opinion No. 2022 DNH 125 Warden, FCI Berlin
O R D E R
Daniel Alley, proceeding pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging
a disciplinary proceeding that resulted in his loss of good
conduct time.1 The court found on preliminary review that Alley’s
challenge was based on a Fifth Amendment claim and ordered the
clerk to effect service. Doc. no. 3. In the service order, the
court granted Alley leave to file a supplement to his petition,
which he did. Doc. no. 5. The warden now moves for summary
judgment. Doc. no. 7. Alley objects. Because Alley did not
exhaust his administrative remedies, the warden’s motion is
granted and Alley’s claims are dismissed.
Standard of Review
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
1 Alley filed his petition when he was an inmate at the Federal Correctional Institution in Berlin, New Hampshire. He is now incarcerated at the Federal Correctional Institution in White Deer, Pennsylvania. movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A material fact is one that “carries with it the
potential to affect the outcome of the suit.” French v. Merrill,
15 F.4th 116, 123 (1st Cir. 2021) (quotation omitted). A
material fact is in genuine dispute if “a reasonable jury could
resolve the point in the favor of the non-moving party.” Id. The
court construes the record in the light most favorable to the
nonmoving party. Benson v. Wal-Mart Stores East, L.P., 14 F.4th
13, 17 (1st Cir. 2021). In considering a motion for summary
judgment, the court may review materials cited in the motion and
other materials in the record. Fed. R. Civ. P. 56(c)(1)(3).
Background
On February 25, 2021, Alley was charged in Incident Report
No. 3478123 under offense codes 203 (threatening bodily harm)
and 225 (stalking another person through repeated behavior which
harasses, alarms, or annoys the person after having been warned
to stop that conduct).2 The charges arose from Alley’s
interactions with two FCI Berlin employees, Counselor C. Napier
2 In his supplement, Alley states that he is innocent of the conduct charged in Incident Report No. 3477105, which is not the Incident Report that is the subject of his petition. Alley’s allegations in the supplement, however, pertain entirely to Incident Report No. 3478123 and the claims alleged in his petition. The court assumes that Alley’s reference to Incident Report No. 3477105 in the supplement is a mistake.
2 and Lieutenant A. McCormack, regarding Alley’s repeated and
unsuccessful requests to change prison cells.
A Discipline Hearing Officer (“DHO”) held a hearing on
March 16, 2021. At the hearing, the DHO informed Alley that she
was changing the charged violation of Code 225, stalking, to
violation of Code 312, insolence. The DHO found after the
hearing that Alley had committed the charged acts under Code 203
and Code 312. She imposed sanctions, which included the loss of
good conduct time. Alley filed a petition for habeas corpus
relief alleging constitutional violations in connection with his
disciplinary proceeding.
Discussion
The warden seeks summary judgment, arguing that Alley
failed to exhaust his available administrative remedies before
filing his habeas petition. The Prison Litigation Reform Act
(“PLRA”) requires prisoners to exhaust all available
administrative remedies before seeking relief in federal court.
42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 90–91
(2006). To exhaust his or her administrative remedies properly,
“a prisoner must file complaints and appeals in the place, and
at the time, the prison’s administrative rules require.” Acosta
3 v. U.S. Marshals Serv., 445 F.3d 509, 512 (1st Cir. 2006); see
Woodford, 548 U.S. at 90–91.
The BOP has established an administrative appeal process
that allows prisoners to seek formal review of their complaints.
See 28 C.F.R. §§ 542.10–542.19. Where, as here, the prisoner
appeals a DHO’s decision, step one requires the prisoner to
submit his appeal to the Regional Director for the region in
which the prisoner is currently located. Id., § 542.14(d)(2). If
the prisoner is dissatisfied with the Regional Director’s
response, step two requires the prisoner to appeal the decision
to the General Counsel within 30 calendar days of the date the
Regional Director issues a response. Id., § 542.15(a). Filing an
appeal with “the General Counsel is the final administrative
appeal.” Id. Once the prisoner has received a decision from the
General Counsel, he has exhausted the BOP’s two-step
administrative-remedy process. See id. Only then can the
prisoner seek relief in federal court. Woodford, 548 U.S. at 90-
91. A failure to exhaust administrative remedies may be excused,
however, when the remedies are not available or when the prison
administration prevents an inmate from using the process. Fox v.
Hazelwood, No. 21-CV-159-PB, 2022 WL 2907992, at *1 (D.N.H. July
22, 2022).
4 The warden moves for summary judgment on the ground that
Alley did not complete the administrative process because he did
not file a timely appeal with the General Counsel. In response,
Alley contends that he filed his appeal to the highest
administrative level and did so in as timely a fashion as
possible. He asserts that to the extent the court deems his
appeal untimely, it should excuse his failure to exhaust.
I. Alley’s Appeal of the DHO’s Decision3
Alley appealed the DHO’s decision to the Regional Director,
Northeast Regional Office. The Regional Director received the
appeal on April 6, 2021, and rejected it on April 30, 2021,
because certain pages were illegible. The notice of rejection
directed Alley to refile his appeal.
Alley refiled his appeal in accordance with the directions.
After reviewing it on the merits, the Regional Director issued a
response, concluding that “[t]he DHO reasonably determined
[Alley] committed the prohibited acts based on section 11 of the
Incident Report and supporting evidence.” Doc. no. 1-1 at 12. As
a result, the Regional Director denied Alley’s appeal.
3 The timeline of events is taken from evidence in the record submitted by both parties, viewed in the light most favorable to Alley.
5 The Regional Director’s response is dated August 16, 2021.
The last paragraph in the response notified Alley that he could
appeal to the Office of General Counsel and that the office must
receive his appeal within 30 days of the date of the response.
Alley filed an appeal on October 9, 2021. The General
Counsel’s office received it on October 19, 2021. Both dates are
more than 30 days after the date of the Regional Director’s
response. The Regional Director rejected the appeal as untimely.
The rejection notice to Alley stated: “Provide staff
verification stating untimely filing was not your fault.” Doc.
no. 1-1 at 5. Alley did not file a staff verification or
otherwise communicate with the General Counsel’s office
regarding the rejection of his appeal.
II. Alley’s Failure to Exhaust
The undisputed facts show that Alley did not exhaust his
administrative remedies. Both BOP regulations and the Regional
Director’s denial of Alley’s grievance required Alley to appeal
the Regional Director’s decision to the General Counsel within
30 days of the date of the decision, August 16, 2021. As Alley
concedes, he did not do so until October, more than 30 days
later. Therefore, Alley did not exhaust his administrative
remedies.
6 Viewed generously, Alley argues in his objection that the
court should excuse his failure to exhaust because prison
officials prevented him from submitting his appeal in a timely
fashion. In support, Alley points to a page in his petition that
appears to be the address sheet used for the Regional Director’s
denial letter. Doc. no. 1-1 at 8. That page contains several
handwritten remarks, which include an initialed notation below
the date 9/26/2021 and Alley’s comments stating: “Please note
that I did not receive this response until 9-26-21, & I am
mailing my appeal on 10-9-21.” Id.
Alley’s alleged late receipt of the Regional Director’s
decision may have been a justifiable reason to excuse his
untimely appeal to the General Counsel. He could have — and did
not — present that argument to the General Counsel’s office
despite receiving an invitation to do so. Because Alley did not
address the timeliness issue with the General Counsel’s office,
he did not exhaust his administrative remedies. See, e.g.,
Watkins v. Donnelly, 551 F. App’x 953, 959-60 (10th Cir. 2014).
Therefore, his petition cannot proceed.
Conclusion
For the foregoing reasons, the warden’s motion for summary
judgment (document no. 7) is granted. The petition, document no.
7 1, and the supplement (document no. 5) are dismissed for failure
to exhaust administrative remedies.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________ Samantha D. Elliott United States District Judge
October 5, 2022
cc: Daniel Alley, pro se Seth R. Aframe, AUSA