Robert F. Fox v. Robert Hazelwood

2022 DNH 088

• Court: District Court, D. New Hampshire
• Decided: July 22, 2022
• Docket: 21-cv-159-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert F. Fox

v. Case No. 21-cv-159-PB Opinion No. 2022 DNH 088 Robert Hazelwood

MEMORANDUM AND ORDER

Robert Fox, a federal prisoner, has petitioned under 28 U.S.C. § 2241

for restoration of the seven days of good-time credit he lost following a

disciplinary hearing where he was found guilty of possessing stolen pizza

sauce and cheese. I previously denied the warden’s motion to dismiss the

petition for failure to exhaust administrative remedies. The warden has now

moved for summary judgment on the same ground, repeating the arguments

he raised in the motion to dismiss. I apply the familiar summary judgment

standard when resolving this motion. See French v. Merrill, 15 F.4th 116,

123 (1st Cir. 2021).

Federal prisoners are ordinarily required to exhaust available

administrative remedies before filing a habeas petition under § 2241. See

Rogers v. United States, 180 F.3d 349, 357–58 (1st Cir. 1999); see also

Quintana-Navarette v. Garcia, 361 F. App’x 951, 953 (10th Cir. 2010); Aron v.

LaManna, 4 F. App’x 232, 232–33 (6th Cir. 2001). The Bureau of Prisons (BOP) has established a multi-tiered administrative appeal process that

allows prisoners to seek formal review of their complaints. See 28 C.F.R.

§§ 542.10–542.19. An inmate dissatisfied with the decision of a disciplinary

hearing officer must appeal to the appropriate regional director within

twenty calendar days of that decision. Id. §§ 542.14–542.15. If the outcome of

the regional director’s review does not mollify the inmate, he must appeal to

the BOP’s general counsel within thirty days of the regional director’s

response. Id. § 542.15. Once the inmate has received a decision from the

general counsel, he has exhausted the BOP’s administrative remedy process.

Failure to exhaust these administrative remedies may be excused,

however, where the “failure is due to the administrator, rather than the

petitioner.” Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2006).

For example, exhaustion under § 2241 is not required when “prison

administrators thwart inmates from taking advantage of a grievance process

through machination, misrepresentation, or intimidation.” Blevins v. FCI

Hazelton Warden, 819 F. App’x 853, 856 (11th Cir. 2020) (quoting Ross v.

Blake, 578 U.S. 632, 644 (2016)); see Burman v. Warden, 2021 DNH 110,

2021 WL 2953183, at *3 (D.N.H. July 14, 2021).

The summary judgment record contains minimally sufficient evidence

to show that the BOP is responsible for Fox’s failure to exhaust the

administrative remedies. Fox appealed the disciplinary hearing officer’s

2 decision to the regional director, but his appeal was rejected as untimely. Fox

attributes his untimely filing to the conduct of a prison staff member.

According to Fox, he gave the appeal form to a prison counselor identified as

Napier and asked him to mail it long before the filing deadline. When the

regional director later gave Fox an opportunity to cure the untimely filing by

submitting a statement from prison staff that the delay was not Fox’s fault,

Napier refused to provide such a statement. Even then, Fox persisted in his

efforts to exhaust by resubmitting his appeal to the regional director,

explaining that Napier had caused his missed deadline. When he received no

response from the regional director, Fox filed an appeal with the BOP’s

general counsel, who affirmed the regional director’s decision that his first

appeal was untimely. Accepting Fox’s version of the events, he did everything

he could to properly exhaust, but the administrative process became

unavailable to him through the machinations of a prison official. Under the

circumstances, a material issue of fact exists as to whether Fox’s alleged

failure to exhaust the BOP’s remedies should bar his claims. See Blevins, 819

F. App’x at 858–59 (allegation that prison staff stopped an inmate’s mail

when she tried to appeal, if true, triggered the unavailability exception to the

3 exhaustion requirement). Accordingly, the motion for summary judgment for

failure to exhaust (Doc. No. 11) is denied. 1

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

July 22, 2022

cc: Robert F. Fox, pro se Seth R. Aframe, AUSA

1 On its face, the petition suggests, however, that the warden has several arguments as to why he should prevail on the merits of Fox’s claims. If the warden intends to move for summary judgment on the merits, he should do so within 30 days of the date of this order.