Krieg v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Eric Krieg
v. 	Case No. 	1:21-cv-680-SE
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Eric Krieg, a prisoner incarcerated at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”), filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 (Doc. No. 1) challenging a Bureau of Prisons
(“BOP”) disciplinary decision. 	The Warden moves for summary
judgment (Doc. No. 11) asserting that Mr. Krieg failed to
properly exhaust BOP’s administrative remedies. 	Mr. Krieg
objects and also moves for summary judgment (Doc. No. 12). 	The
parties’ cross-motions are before the court for a recommendation
as to disposition. 	Because no genuine dispute of material fact
exists on the issue of exhaustion, the district judge should
grant the Warden’s motion and deny Mr. Krieg’s motion.
Summary Judgment Standard
“Summary judgment is appropriate when the moving party
shows that ‘there is no genuine dispute as to any material fact
and the mov[ing party] is entitled to judgment as a matter of
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law.’” 	Baum-Holland v. Hilton El Con Mgmt., LLC, 964 F.3d 77,
87 (1st Cir. 2020) (quoting Fed. R. Civ. P. 56). 	“A genuine
dispute is ‘one that must be decided at trial because the
evidence, viewed in the light most flattering to the [party
opposing summary judgment], would permit a rational factfinder
to resolve the issue in favor of either party.’” 	Id. (quoting
Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990)). 	The party opposing summary judgment “must adduce
specific facts showing that a trier of fact could reasonably
find in his favor,” Johnson v. Johnson, 23 F.4th 136, 141 (1st
Cir. 2022) (internal quotation marks omitted) (quoting Brader v.
Biogen Inc., 983 F.3d 39, 53 (1st Cir. 2020)), and “cannot rely
on ‘conclusory allegations, improbable inferences, and
unsupported speculation’” when doing so, id. (quoting Brader,
983 F.3d at 53; Medina-Muñoz, 896 F.2d at 8).
To “determin[e] if a genuine dispute of material fact
exists,” Taite v. Bridgewater State Univ., Bd. of Trs., 999 F.3d
86, 93 (1st Cir. 2021), the court “‘look[s] to all of the record
materials on file, including the pleadings, depositions, and
affidavits’ without evaluating ‘the credibility of witnesses or
weighing the evidence,’” id. (alterations omitted) (quoting
Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014)). 	When
reviewing these materials, the court “read[s] the facts in the
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light most favorable to the [party opposing summary judgment]
and grant[s] all reasonable inferences in his favor.” 	Lachance
v. Town of Charlton, 990 F.3d 14, 20 (1st Cir. 2021).
Background
In his petition, see Pet. (Doc. No. 1, at 1-3), Mr. Krieg
challenges a discipline hearing officer’s (“DHO”) decision
finding him guilty of violating BOP Prohibited Acts Codes
(“Code(s)”) 203 and 307. 	28 C.F.R. § 541.3, tbl.1. 	Mr. Krieg
challenges only the finding of the Code 203 violation, which he
asserts resulted in the disallowance of 27 days of good conduct
time. 	Pet. (Doc. No. 1, at 1). 	Code 203 prohibits
“[t]hreatening another with bodily harm or any other offense.”
28 C.F.R. § 541.3, tbl.1.
According to the incident report prepared by BOP Counselor
Napier, Mr. Krieg’s disciplinary violation arose on the evening
of October 23, 2020 following Mr. Napier’s directives to “lock
in.” 	See BOP Incident Report, Oct. 23, 2020, Pet. Ex. A (Doc.
No. 1-1, at 1). 	Specifically, in response to those directives,
Mr. Krieg told Mr. Napier “I’m just passing a book,” proceeded
to slide items under another prisoner’s cell door, and further
stated “[y]ou’re over the top man, I don’t give a fuck.” 	Id.
Mr. Napier again directed Mr. Krieg to lock in and advised Mr.
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Krieg that he was violating COVID-19 guidelines. 	Id. 	Mr. Krieg
responded, “I don’t give a shit” and walked towards Mr. Napier
in a fast-paced, “aggressive and threatening manner.” 	Id.
Because Mr. Napier felt threatened, he attempted to hit his body
alarm and called for staff assistance. 	Id. 	Mr. Krieg then
returned to his cell and complied with Mr. Napier’s orders to be
placed in hand restraints. 	Id.
On October 24, 2020, a BOP staff member provided Mr. Krieg
with a copy of the incident report charging him with violating
Codes 203 and 307. 	See DHO Report, Nov. 5, 2020, Pet. Ex. B
(Doc. No. 1-1, at 2). 	Mr. Krieg was advised of his rights with
regard to the disciplinary proceeding against him initiated by
the incident report, and he appeared at the disciplinary hearing
on October 29, 2020. 	Id. 	During the hearing, Mr. Krieg denied
the charge of violating Codes 203 and 307 and represented to the
DHO that he could not hear Mr. Napier because he suffers from
hearing loss, which is documented in his medical records. 	Id.
Mr. Krieg later acknowledged video footage of the incident and
stated “[o]kay, I can see how it looks, but I meant no threat
nor didn’t think I did anything wrong because I didn’t hear
him.” 	Id.
Ultimately, the DHO found, based on the greater weight of
the evidence, that Mr. Krieg committed acts prohibited by Codes
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203 and 307. 	Id. at 3-5. 	The DHO imposed several sanctions for
the violations including disallowance of 27 days of good conduct
time, loss of commissary, and loss of telephone and email
privileges.1 	Id. at 5. 	BOP staff delivered a copy of the DHO
Report to Mr. Krieg on November 10, 2020. 	Id.
Mr. Krieg filed an administrative appeal, dated November
19, 2020, challenging the DHO’s decision and related sanctions.
Reg’l Admin. Remedy Appeal, Pet. Ex. C (Doc. No. 1-1, at 6, 8).
The Regional Office did not receive Mr. Krieg’s appeal until
December 10, 2020, which was beyond the November 30, 2020
deadline. 	Reg’l Admin. Remedy Resp., Pet. Ex. D (Doc. No. 1-1,
at 7). 	The Regional Office rejected the appeal as untimely and
because the fourth page of the appeal form was illegible. 	Id.
The Regional Office, however, provided Mr. Krieg with an
opportunity to resubmit his appeal within ten days of the
rejection notice, in proper form and with staff verification of
a valid reason for the untimeliness of the appeal. 	Id.
On March 28, 2021, Mr. Krieg resubmitted his administrative
appeal to the Regional Office, but he did not include staff
1 The copy of the DHO Report Mr. Krieg submitted with his
petition does not make clear which Code violation the loss of
good conduct time sanction was imposed. 	Because the court finds
that Mr. Krieg failed to exhaust his administrative remedies, it
need not resolve the question.
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verification of a valid reason for the untimeliness. 	Reg’l
Admin. Remedy Appeal, Pet. Ex. F (Doc. No. 1-1, at 9-12).
Rather, Mr. Krieg stated that the rejection based on
untimeliness was incorrect under the “prison mailbox rule.”2 	Id.
at 11. 	Mr. Krieg further stated: “[f]or the record, neither
Inmate Counselor Roulleau [sic] or Unit Counselor Napier has
ever heard that the 20 days ‘includes mail time.’” 	Id. at 12.
Due to the absence of staff verification regarding the
untimeliness issue, the Regional Office rejected the appeal a
second time, but provided Mr. Krieg with a second opportunity to
remedy his appeal and to resubmit it within ten days of the
rejection notice. 	Reg’l Admin. Remedy Resp., Pet. Ex. H (Doc.
No. 1-1, at 13).
Contrary to the Regional Office’s instructions, Mr. Krieg
appealed the second rejection to the Central Office on June 8,
2021. 	Cent. Off. Admin. Remedy Appeal, Pet. Ex. I (Doc. No. 1-
1, at 14). 	He again argued that his appeal should not have been
rejected in the first instance under the prison mailbox rule.
2 “Under the prison mailbox rule, a pro se prisoner's court
filing is deemed filed on the date that he delivered it to
prison authorities for mailing.” Jones v. Warden, No. 19-cv-105-
JL, 2020 U.S. Dist. LEXIS 50187, at *9 n.3, 2020 WL 1326151, at
*4 n.3 (D.N.H. Mar. 2, 2020) (quotation and brackets omitted),
R&R adopted, 2020 U.S. Dist. LEXIS 48544 at *1, 2020 WL 1322541,
at *1 (D.N.H. Mar. 20, 2020).
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Id. 	The Central Office ultimately rejected Mr. Krieg’s appeal
and directed him to follow the instructions in the prior
rejection notices, correct the issues with his appeal, and
refile his appeal with the Regional Office. 	Cent. Off. Admin.
Remedy Resp., Pet. Suppl. (Doc. No. 2, at 3). 	To date, Mr.
Krieg has not filed staff verification to demonstrate a valid
reason for the untimeliness of his appeal. 	Instead, he proceeds
with a Section 2241 petition seeking to expunge the Code 203
violation and reinstate the 27 days of disallowed good conduct
time. 	Pet. (Doc. No. 1, at 10).
Discussion
The Warden seeks summary judgment on the basis that Mr.
Krieg’s appeal was untimely, and therefore, he failed to exhaust
his administrative remedies before filing his Section 2241
petition. 	In response, Mr. Krieg contends that: (1) his
administrative appeal was timely under the plain language of 28
C.F.R. § 542.14; (2) the “prison mailbox rule” should govern the
timeliness of administrative appeals; and (3) exhaustion should
be excused due to the unavailability and futility of the BOP
administrative remedies.
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I. 	Exhaustion of Administrative Remedies
“In general, a [Section] 2241 petitioner must exhaust
available administrative remedies before [he] can obtain relief
in federal court.” 	Shorter v. Warden, 803 F. App’x 332, 336
(11th Cir. 2020). 	For a federal prisoner “[t]o properly exhaust
[Section] 2241 claims challenging the computation of a release
date, [he] generally must comply with the [BOP's] Administrative
Remedy Program which is set forth in 28 C.F.R. §§ 542.10-.19.”
Cook v. Spaulding, 433 F. Supp. 3d 54, 57 (D. Mass. 2020); cf.
Davis v. Warden, 661 F. App'x 561, 562 (11th Cir. 2016) (citing
Woodford v. Ngo, 548 U.S. 81, 88–93 (2006)) (requiring prisoner
compliance with the “agency's deadlines and procedural rules”).
In a Section 2241 action, the government bears the burden to
raise and prove the affirmative defense that the petitioner
failed to exhaust his administrative remedies. 	See Acosta v.
Daniels, 589 F. App'x 870, 873 (10th Cir. 2014) (citing Jones v.
Bock, 549 U.S. 199, 212 (2007)).
The BOP’s Administrative Remedy Program “allow[s] an inmate
to seek formal review of an issue relating to any aspect of
his/her own confinement.” 	28 C.F.R. § 542.10. 	Where a prisoner
seeks to appeal a DHO Report, he must submit his first appeal to
the Regional Office within twenty calendar days of receiving the
DHO Report. 	Id. § 542.14(d)(2). 	An appeal is “considered filed
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on the date it is logged into the Administrative Remedy Index as
received.” 	Id. § 542.18.
If the Regional Office rejects the appeal, the next and
final step in the administrative appeal process is an appeal
filed with the Central Office within thirty calendar days of the
date the Regional Office’s director signed the response. 	Id. §
542.15(a). 	“An inmate who fails to comply with the prescribed
deadlines has an opportunity to demonstrate a valid reason for
the delay in filing; if the prisoner does so, he may be granted
an extension to complete the filing.” 	Jones v. Warden, No. 19-
cv-105-JL, 2020 U.S. Dist. LEXIS 50187, at *7, 2020 WL 1326151,
at *3 (D.N.H. Mar. 2, 2020) (citing 28 C.F.R. § 542.17(b)), R&R
adopted, 2020 U.S. Dist. LEXIS 48544 at *1, 2020 WL 1322541, at
*1 (D.N.H. Mar. 20, 2020).
The Regional Office received Mr. Krieg’s first
administrative appeal outside of the allowable twenty-day
period, which began when Mr. Krieg received a copy of the DHO
Report. 	Reg’l Admin. Remedy Resp., Pet. Ex. D (Doc. No. 1-1, at
7). 	Mr. Krieg was provided with three opportunities to cure the
untimeliness of his appeal. 	Yet, he failed to follow the
express instructions in each appeal rejection notice, and he
never submitted staff verification to support a valid
justification for the untimeliness of his appeal. 	Contrary to
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Mr. Krieg’s claim that the appeal was timely because he “filed”
it within the twenty-day period, BOP regulations state that an
appeal is considered filed once it is logged as received in the
BOP’s Administrative Remedy Index. 	28 C.F.R. § 542.18.
Further, this court, consistent with the majority view, has
rejected the applicability of the prison mailbox rule to
deadlines established by the BOP grievance procedure. 	See
Jones, 2020 U.S. Dist. LEXIS 50187, at *7, 2020 WL 1326151, at
*4 (citing Nigro v. Sullivan, 40 F.3d 990, 996 (9th Cir. 1994)
(federal prisoners not entitled to the benefit of the prison
mailbox rule in determining whether a prison administrative
appeal was timely filed); Lee v. Zuniga, No. 1:15-cv-00297-LJO-
MJS, 2017 U.S. Dist. LEXIS 94124, at *7, 2017 WL 2628101, at *3
(E.D. Cal. June 19, 2017) (collecting cases reaching same
conclusion)). 	Accordingly, the undisputed facts demonstrate
that Mr. Krieg’s appeal was untimely, and therefore, he failed
to properly exhaust his administrative remedies.
II. 	Exceptions to Exhaustion of Administrative Remedies
Courts have recognized exceptions to the Section 2241
exhaustion requirement where administrative remedies are
“unavailable or wholly inappropriate to the relief sought, or
where the attempt to exhaust such remedies would itself be a
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patently futile course of action.” 	Rodriguez-Rosa v. Spaulding,
No. CV 19-11984-MBB, 2020 U.S. Dist. LEXIS 88044 at *27, 2020 WL
2543239, at *10 (D. Mass. May 19, 2020) (quoting Williams v.
Willis, 765 F. App’x 83 (5th Cir. 2019) (quoting Fuller v. Rich,
11 F.3d 61, 61 (5th Cir. 1994))). 	Exceptions to the exhaustion
requirement, however, arise only in “extraordinary
circumstances,” and Mr. Krieg bears the burden of demonstrating
that an exception applies. Fuller, 11 F.3d at 61.
A. Unavailability
Exhaustion may be “unavailable” and therefore excused 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 U.S.
Dist. LEXIS 149709 at *8, 2022 WL 2907992, at *1 (D.N.H. July
22, 2022) (quoting Blevins v. Warden, 819 F. App'x 853, 856
(11th Cir. 2020)). 	Mr. Krieg contends that the administrative
appeal process was unavailable to him because he received
contradictory information from BOP officials: Mr. Rouleau and
Mr. Napier agreed with Mr. Krieg that his appeal should not have
been rejected for untimeliness, while the appeal rejection
notices of the Regional and Central Offices cited untimeliness
as the basis for rejection. 	Mr. Krieg also claims in his reply
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to the Warden’s motion for summary judgment (Doc. No. 12), that
Mr. Rouleau “refused to give Krieg a memo explaining why the
lateness was not his Krieg’s [sic] fault . . . .” 3 	Id. at 6
(quotation and brackets omitted).
Nothing in the record, however, suggests that any BOP
official, other than Mr. Rouleau, refused to provide Mr. Krieg
with verification of a valid reason for the untimeliness of his
appeal. 	A single BOP official’s refusal to provide Mr. Krieg
with a memorandum does not render compliance with the
administrative appeal process unavailable, and Mr. Krieg does
not suggest that Mr. Rouleau was the only BOP staff member from
whom he could ask for staff verification. 	No evidence in the
record suggests that Mr. Krieg even sought such verification
from other BOP staff members by, for example, asking them to
provide a copy of a mail log or a memorandum stating that Mr.
3 This allegation is not supported by admissible evidence.
See United States v. Hoerle, No. 08–cv–470–JM, 2009 U.S. Dist.
LEXIS 70600, at *2 n.1, 2009 WL 2486323, at *1 n.1 (D.N.H. Aug.
11, 2009) (holding that plaintiff’s facts would be deemed
admitted because defendant’s objection was unsupported by
admissible evidence); see also LR 56.1(b) (“A memorandum in
opposition to a summary judgment motion shall incorporate a
short and concise statement of material facts, supported by
appropriate record citations . . .”). 	Because the allegation
does not alter the court’s conclusion that administrative
remedies were available to Mr. Krieg, it is accepted as true
for purposes of summary judgment.
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Krieg sent his appeal early enough that it should reasonably
have arrived by the deadline.
In addition, Mr. Krieg was not prevented from properly
complying with the appeal process merely because Mr. Rouleau and
Mr. Napier were initially unaware that the appeal deadline
included mail time, Reg’l Admin. Remedy Appeal, Pet. Ex. F (Doc.
No. 1-1, at 12), or because Mr. Rouleau agreed with Mr. Krieg’s
opinion that the original appeal was timely. 	Cent. Off. Admin.
Remedy Appeal, Pet. Ex. I (Doc. No. 1-1, at 14). 	Further,
nothing in the record suggests that BOP officials prevented Mr.
Krieg from properly complying with the appeal process by, for
example, denying him appeal forms or threatening him.
Accordingly, on the issue of unavailability, Mr. Krieg has not
adduced any specific facts for a jury to reasonably find that
the BOP administrative remedies were unavailable to him. 	See
Johnson, 23 F.4th at 141.
B. Futility
Mr. Krieg also appears to argue that the administrative
appeal process is “futile” because his appeals were repeatedly
rejected as untimely, despite his explanation of compliance
under the prison mailbox rule. 	Neither Mr. Krieg’s argument nor
any facts in the record suggest that the appeal process is
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inadequate to address Mr. Krieg’s grievance. 	Rather, the BOP
administrative appeal process provides formal review and remedy
of issues relating to an inmate’s confinement, including DHO
findings and subsequent sanctions. 	See 28 C.F.R. § 542.10; see
also Jimenez v. United States, No. 97 CR 752 (SAS), 2000 U.S.
Dist. LEXIS 269 at *5, 2000 WL 28164, at *2 (S.D.N.Y. Jan. 14,
2000) (noting that Section 2241 is the proper vehicle for a
prisoner to challenge a BOP decision to deny credit to federal
sentence for time served in federal detention facility).
Further, Mr. Krieg’s failure to take all possible steps to
extend his time to file an appeal precludes an argument that
such appeal would be “futile.” 	Consistent with Section
542.15(a), the Regional Office and Central Office may have
granted Mr. Krieg an extension had he submitted the requested
staff verification supporting his contention that the delay in
filing was beyond his control. 	Thus, Mr. Krieg has failed to
demonstrate that there is a genuine issue of material fact such
that a jury could reasonably find that the BOP administrative
remedy process was futile. 	Accordingly, in the absence of
applicable exceptions, Mr. Krieg’s failure to exhaust his
administrative remedies cannot be excused, and therefore, the
district judge should grant the Warden’s motion for summary
judgment.
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Conclusion
For the foregoing reasons, the district judge should grant
the Warden’s motion for summary judgment (Doc. No. 11), deny Mr.
Krieg’s motion for summary judgment (Doc. No. 12), and direct
the clerk to enter judgment and close this case. 	Any objections
to this Report and Recommendation must be filed within fourteen
days of receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2).
The fourteen-day period may be extended upon motion. 	Failure to
file specific written objections to the Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
February 16, 2023
cc: 	Eric Krieg, pro se
Seth R. Aframe, Esq., U.S. Attorney’s Office
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