UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Fox
v. Civil No. 21-cv-158-SE Opinion No. 2022 DNH 100 Warden, FCI Berlin
O R D E R
Robert Fox, proceeding pro se, filed a petition under 28
U.S.C. § 2241, challenging disciplinary proceedings that
resulted in his loss of 27 days of good conduct time and a fine.
The warden moves for summary judgment, arguing that Fox failed
to exhaust his available administrative remedies. Doc. no. 21.
Fox objects. For the following reasons, the warden’s motion is
granted.
Standard of Review
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
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 March 31, 2020, staff at FCI Berlin monitored a phone
call placed by prisoner Andrew White to his brother. White
allegedly instructed his brother to pay Fox for protection while
he lived in general population at FCI Berlin. Prison staff
determined that White’s family paid Fox a total of $990.00 since
White arrived at FCI Berlin.
Fox was charged in Incident Report No. 3384451 with
extortion, blackmail, protection, and demanding or receiving
money for protection in violation of Bureau of Prisons (“BOP”)
Code 204. A Discipline Hearing Officer (“DHO”) found Fox guilty
of the violation on April 15, 2020. See doc. no. 1-1 at 4.
According to Fox, the DHO later changed his infraction to
exchanging money for contraband in violation of BOP Code 217,
though the DHO did not alter the punishment he received for the
infraction.1 Fox filed a petition for habeas corpus relief
1 Fox asserts in his petition that a violation of BOP Code 217 is a lesser charge than a violation of BOP Code 204, and that the DHO told Fox that she made the change for his benefit.
2 alleging constitutional violations in connection with his
disciplinary proceedings.
Discussion
The warden seeks summary judgment, arguing that Fox 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
properly exhaust his or her administrative remedies, “a prisoner
must file complaints and appeals in the place, and at the time,
the prison’s administrative rules require.” Acosta 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 where
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
3 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.
The warden argues that Fox failed to exhaust his
administrative remedies before filing his habeas petition. In
response, Fox claims that either he did exhaust his
administrative remedies or, if not, the BOP prevented him from
going through the exhaustion process.
I. Fox’s Appeals of the DHO’s Decision2
At some point in May 2020, Fox filed his first appeal
related to the DHO’s decision regarding Incident Report No.
3384451 to the Regional Director (“step one of first appeal”).
The Regional Director received the appeal on May 13, 2020. Doc.
no. 17-2 at 1. On July 21, 2020, the Regional Director rejected
the first appeal on procedural grounds, including because pages
of the appeal were not legible. Id. Fox did not receive the
rejection notice until September 12, 2020. Id.
2 The timeline of events is taken from evidence in the record submitted by both parties, viewed in the light most favorable to Fox.
4 Fox attempted to correct the procedural errors mentioned in
the rejection notice and resubmitted his appeal to the Regional
Director on October 3, 2020 (“step one of second appeal”). Doc.
no. 17-7. The Regional Director rejected the second appeal on
October 26, 2020, again on procedural grounds. Id. Fox did not
receive notice of the rejection until December 23, 2020. Id.
Fox asserts that before he received notice of the rejection
of the second appeal on procedural grounds, he believed that the
Regional Director had denied the second appeal on substantive
grounds.3 He points to 28 C.F.R. § 542.18, which states that if
the Regional Director does not issue a response to an appeal
within 30 calendar days, the prisoner “may consider the absence
of a response to be a denial at that level.” Therefore, on
December 14, 2020, before he received notice of the Regional
Director’s denial of the second appeal on procedural grounds,
Fox appealed what he believed to be a denial of the second
appeal to the Office of the General Counsel (“step two of second
appeal”).
3 Fox made this statement in an unsworn objection to one of the warden’s prior motions. See doc. no. 18. Although the objection is not competent evidence, because it does not change the outcome of this order and in light of Fox’s pro se status, the court will consider statements in the objection in resolving the warden’s motion.
5 While step two of Fox’s second appeal was pending with the
Office of the General Counsel (“OGC”), he received the Regional
Director’s rejection of his second appeal on procedural grounds.
Doc. no. 17-7. The rejection directed Fox to resubmit his appeal
in proper form. Id. On January 7, 2021, Fox filed another appeal
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Fox
v. Civil No. 21-cv-158-SE Opinion No. 2022 DNH 100 Warden, FCI Berlin
O R D E R
Robert Fox, proceeding pro se, filed a petition under 28
U.S.C. § 2241, challenging disciplinary proceedings that
resulted in his loss of 27 days of good conduct time and a fine.
The warden moves for summary judgment, arguing that Fox failed
to exhaust his available administrative remedies. Doc. no. 21.
Fox objects. For the following reasons, the warden’s motion is
granted.
Standard of Review
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
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 March 31, 2020, staff at FCI Berlin monitored a phone
call placed by prisoner Andrew White to his brother. White
allegedly instructed his brother to pay Fox for protection while
he lived in general population at FCI Berlin. Prison staff
determined that White’s family paid Fox a total of $990.00 since
White arrived at FCI Berlin.
Fox was charged in Incident Report No. 3384451 with
extortion, blackmail, protection, and demanding or receiving
money for protection in violation of Bureau of Prisons (“BOP”)
Code 204. A Discipline Hearing Officer (“DHO”) found Fox guilty
of the violation on April 15, 2020. See doc. no. 1-1 at 4.
According to Fox, the DHO later changed his infraction to
exchanging money for contraband in violation of BOP Code 217,
though the DHO did not alter the punishment he received for the
infraction.1 Fox filed a petition for habeas corpus relief
1 Fox asserts in his petition that a violation of BOP Code 217 is a lesser charge than a violation of BOP Code 204, and that the DHO told Fox that she made the change for his benefit.
2 alleging constitutional violations in connection with his
disciplinary proceedings.
Discussion
The warden seeks summary judgment, arguing that Fox 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
properly exhaust his or her administrative remedies, “a prisoner
must file complaints and appeals in the place, and at the time,
the prison’s administrative rules require.” Acosta 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 where
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
3 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.
The warden argues that Fox failed to exhaust his
administrative remedies before filing his habeas petition. In
response, Fox claims that either he did exhaust his
administrative remedies or, if not, the BOP prevented him from
going through the exhaustion process.
I. Fox’s Appeals of the DHO’s Decision2
At some point in May 2020, Fox filed his first appeal
related to the DHO’s decision regarding Incident Report No.
3384451 to the Regional Director (“step one of first appeal”).
The Regional Director received the appeal on May 13, 2020. Doc.
no. 17-2 at 1. On July 21, 2020, the Regional Director rejected
the first appeal on procedural grounds, including because pages
of the appeal were not legible. Id. Fox did not receive the
rejection notice until September 12, 2020. Id.
2 The timeline of events is taken from evidence in the record submitted by both parties, viewed in the light most favorable to Fox.
4 Fox attempted to correct the procedural errors mentioned in
the rejection notice and resubmitted his appeal to the Regional
Director on October 3, 2020 (“step one of second appeal”). Doc.
no. 17-7. The Regional Director rejected the second appeal on
October 26, 2020, again on procedural grounds. Id. Fox did not
receive notice of the rejection until December 23, 2020. Id.
Fox asserts that before he received notice of the rejection
of the second appeal on procedural grounds, he believed that the
Regional Director had denied the second appeal on substantive
grounds.3 He points to 28 C.F.R. § 542.18, which states that if
the Regional Director does not issue a response to an appeal
within 30 calendar days, the prisoner “may consider the absence
of a response to be a denial at that level.” Therefore, on
December 14, 2020, before he received notice of the Regional
Director’s denial of the second appeal on procedural grounds,
Fox appealed what he believed to be a denial of the second
appeal to the Office of the General Counsel (“step two of second
appeal”).
3 Fox made this statement in an unsworn objection to one of the warden’s prior motions. See doc. no. 18. Although the objection is not competent evidence, because it does not change the outcome of this order and in light of Fox’s pro se status, the court will consider statements in the objection in resolving the warden’s motion.
5 While step two of Fox’s second appeal was pending with the
Office of the General Counsel (“OGC”), he received the Regional
Director’s rejection of his second appeal on procedural grounds.
Doc. no. 17-7. The rejection directed Fox to resubmit his appeal
in proper form. Id. On January 7, 2021, Fox filed another appeal
with the Regional Director, attempting to correct the procedural
errors in his second appeal (“step one of third appeal”).
Unbeknownst to Fox, three days before he filed his third
appeal, the OGC responded to step two of his second appeal. Doc.
no. 17-9. The OGC rejected the second appeal, stating: “Concur
with the rationale of the regional office and/or institution for
rejections. Follow directions provided on prior rejection
notices.” Doc. no. 17-9. Although the OGC had responded to and
rejected the second appeal on January 4, 2021, Fox did not
receive notice of the decision until January 28, 2021. Id.
Fox filed his habeas petition in this case on February 19,
2021. On March 26, 2021, the Regional Director responded to
Fox’s third appeal. Doc. no. 21-1, ¶ 13. The third appeal
corrected the procedural errors from the prior appeals. Id.
The Regional Director thus considered and denied the appeal on
the merits. Id. Fox did not appeal the Regional Director’s
substantive decision on his third appeal to the OGC. Id., ¶ 14.
6 II. Exhaustion of Administrative Remedies
There is no dispute that on the day Fox filed his habeas
petition in this case: 1) he was aware that his first and second
appeals had been rejected on procedural grounds, and 2) his
third appeal, which corrected his prior procedural errors, was
pending with the Regional Director. Thus, at the time Fox
instituted this action, neither the Regional Director nor the
OGC had responded to Fox’s appeal of the DHO’s decision on the
merits. Therefore, Fox failed to exhaust his administrative
remedies prior to filing for habeas relief in this court. E.g.,
Cantrall v. Chester, 454 F. App’x 679, 681 (10th Cir. 2012) (“In
this case, Mr. Cantrall did not exhaust the BOP’s available
administrative remedies because, as the district court observed,
his appeals were denied on procedural grounds, so the BOP never
denied his claim on the merits.”).
In his objection to the warden’s motion for summary
judgment (and in prior filings), Fox complains about the length
of time between when his appeals were denied and when he
received notice of those denials. He suggests that the delay in
receiving the denials was purposeful and designed to make sure
his further appeals would be rejected as untimely.
Even if Fox’s assertions were true, none of his appeals was
rejected as untimely. Rather, the Regional Director and the OGC
gave Fox the opportunity to correct his procedural errors and
7 the Regional Director accepted and ruled on the merits of his
third appeal. Therefore, Fox’s complaints about the timeliness
of the responses to his appeals do not excuse his failure to
exhaust his administrative remedies.
To the extent that Fox intended to allege that the BOP
somehow prevented him from exhausting his administrative
remedies by repeatedly rejecting his appeals on procedural
grounds, that allegation is belied by the record. It is true
that “exhaustion under § 2241 is not required when prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Fox v. Hazelwood, No. 21-CV-159-PB, 2022 WL
2907992, at *1 (D.N.H. July 22, 2022) (quotation omitted)
(citing cases). As mentioned, however, the Regional Director
accepted and ruled on the merits of Fox’s third appeal despite
the procedural failings of his other appeals. Thus, Fox could
have properly exhausted his administrative remedies by appealing
the denial of his third appeal to the OGC. He did not do so.
III. Fox’s Motion Requesting Relief
While the warden’s motion for summary judgment was pending,
Fox filed a “motion to have court ask BOP to restore good
conduct, expunge incident report and unfreeze fine from
account.” Doc. no. 25. In that motion, Fox refers to an earlier
8 order from the court denying without prejudice the warden’s
previous motion for summary judgment. Doc. no. 20. Fox appears
to believe that the court’s ruling in that order entitles him to
the relief he seeks in his habeas petition.
The court’s ruling to which Fox refers did not grant Fox
any relief. Instead, it denied the warden’s motion for summary
judgment without prejudice to a subsequent motion for relief.
See id. at 4. The warden later filed a renewed motion for
summary judgment, which is the subject of this order. Therefore,
Fox’s motion is denied.
Conclusion
For the foregoing reasons, the warden’s motion for summary
judgment (doc. no. 21) is granted. Fox’s motion for relief (doc.
no. 25) is denied. The clerk of court shall enter judgment
accordingly and close the case.
SO ORDERED.
______________________________ Samantha D. Elliott United States District Judge
August 22, 2022
cc: Robert Fox, pro se. Seth R. Aframe, Esq.