Strom v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Justin Deonta Strom
v. Civil No. 23-cv-176-LM
Warden, FCI Berlin
Report and Recommendation
Self-represented Petitioner Justin Strom, who is
incarcerated at the Federal Correctional Institution in Berlin,
New Hampshire (“FCI Berlin”), brings a petition for a writ of
habeas corpus under 28 U.S.C. § 2241, challenging prison
disciplinary proceedings that resulted in Strom losing forty-one
days of good conduct time credit. Strom contends that the
process which resolved the disciplinary charge against him was
resolved violated his Fifth Amendment due process rights because
the Disciplinary Hearing Officer (“DHO”) was not impartial, and
prejudged Strom’s guilt on a disciplinary infraction before
holding a hearing on that infraction. The respondent, the FCI
Berlin Warden, moves for summary judgment on the ground that
Strom did not exhaust his available administrative remedies
before filing this action. See Doc. Nos. 5, 10. Strom objects.
See Doc. Nos. 7-9.
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Standard of Review
In a § 2241 action, “[s]ummary judgment is proper ‘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.’” Yancey v. Warden, FMC Devens, No. 22-cv-11790-DLC, --- F.
Supp. 3d ---, 2024 U.S. Dist. LEXIS 4305, at *7, 2024 WL 100932,
at *3 (D. Mass. Jan. 9, 2024). No genuine dispute of material
fact is shown “if, based on the record, there is no factual
determination which a rational factfinder could make as to the
existence or nonexistence of a fact that has the potential to
change the outcome of the suit.” Gibson Found., Inc. v. Norris,
88 F.4th 1, 5 (1st Cir. 2023) (internal quotation marks
omitted).
Background
I. Introduction
Strom was sentenced in the Eastern District of Virginia in
September 2012 for the crime of sex trafficking of a child. In
June 2022, a staff member at FCI Berlin reviewing recorded
telephone calls discovered that during one such call, Strom
asked the person he had called to contact the victims of Strom’s
crimes to get statements from them saying that Strom never
forced them into prostitution. Prison officials charged Strom
with a disciplinary violation for telephone abuse.
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The DHO presided over a hearing on the charged disciplinary
infraction on September 26, 2022. At the hearing, Strom stated
that during the phone conversation in question, he was talking
to a private investigator. Strom provided the name of the
investigator, but that name did not correspond with the phone
number Strom had called. During the hearing, Strom acknowledged
that he was not allowed to contact the victims of the crimes
underlying his incarceration. The DHO found there was
sufficient evidence to find Strom had committed the disciplinary
offense charged, and sanctioned Strom with, among other things,
the loss of forty-one days of good conduct time.
II. Regulatory Framework for Disciplinary Appeals
The BOP has an Administrative Remedy Program (“ARP”),
codified at 28 C.F.R. § 542.10-19 (2024). See Calderon
Hernandez v. Warden FMC Devens, Civil Action No. 23-11330-MPK,
2023 U.S. Dist. LEXIS 161096, at *8, 2023 WL 5939634, at *4 (D.
Mass. Sept. 12, 2023). Under the ARP, to appeal a DHO decision,
a prisoner must submit an appeal to the Regional Director within
twenty calendar days of the date the prisoner received the DHO
Report. See Krieg v. Warden, FCI Berlin, Case No. 22-cv-105-SM,
2022 DNH 111, 2022 U.S. Dist. LEXIS 162628, at *2, 2022 WL
4121422, at *1 (D.N.H. Sept. 9, 2022) (citing 28 C.F.R. §§
542.14(d)(2) & 542.15(a)), appeal filed sub nom., Krieg v.
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Hazlewood, No. 22-1717 (1st Cir. Sept. 22, 2022). A prisoner
not satisfied with the Regional Director’s response may submit
an appeal to the Office of the BOP’s Office of General Counsel
within within thirty days after the date of the Regional
Director’s decision. See id., 2022 U.S. Dist. LEXIS 162628, at
*2, 2022 WL 4121422, at *1 (citing 28 C.F.R. § 542.15(a)).
At each stage of the ARP, the prisoner’s appeal may be
rejected as defective. In that situation, the Administrative
Remedy Coordinator will provide the prisoner with written notice
of the reason for rejection and give the prisoner time to
correct the defect and resubmit the appeal. See 28 C.F.R. §
542.17.
III. Facts Material to Exhaustion
Strom filed a timely appeal of the DHO’s decision with the
Northeast Regional Office on October 17, 2022.1 The Regional
1 In support of his summary judgment motion, the Warden
submitted the declaration of BOP Legal Assistant Cheryl
Magnusson (Doc. No. 5-2) which summarized Strom’s exhaustion
efforts, and the responses thereto, based on entries in SENTRY,
the BOP’s database, through July 2023. The entries in the copy
of the SENTRY database provided to the court are nearly
incomprehensible because understanding of them requires
knowledge of codes and abbreviations not provided to the court.
Strom does not contest the accuracy of Magnusson’s declaration,
and the court relies on that summary of Strom’s exhaustion
process through July 2023. Thereafter, the court relies on the
record documents Strom provided in support of his objection to
summary judgment (Doc. Nos. 8-1, 9).
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Office rejected the appeal on November 3, 2022, because two of
the pages were not legible. The Regional Office response
provided Strom ten days to refile the appeal, correcting the
identified errors.
Instead of refiling the corrected appeal with the Regional
Office, Strom filed an appeal at the next administrative level,
the Office of General Counsel. That appeal was rejected because
Strom did not follow the directions from the Regional Office to
refile the appeal there. Strom submitted another appeal to the
Regional Office on December 15, 2022, challenging the sanctions
the DHO imposed. The Regional Office rejected Strom’s appeal on
February 8, 2023 because it was not legible and because Strom
submitted more than one appeal form, and instructed Strom to
refile a legible appeal within ten days, and to include a
continuation page if more space was necessary. Strom did not
immediately refile the appeal as instructed.
Strom filed this § 2241 action on March 8, 2023. On March
30, 2023, Strom refiled his appeal with the Regional Director.
That appeal was rejected for being illegible and untimely, and
because Strom had not corrected the errors identified in Strom’s
previous appeals. On May 15, 2023, Strom filed an appeal which
the Regional Director accepted. Strom apparently never received
a response to that appeal.
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After several months with no response from the Regional
Office, in order to move on to the next appeal level, Strom
obtained a memorandum from a unit counselor to attest to Strom’s
appeal efforts and the lack of response from the Regional
Director. Strom filed an appeal with the Office of General
Counsel on October 4, 2023. On November 1, 2023, that office
responded and denied the appeal on its merits, finding the DHO’s
decision to be reasonable and supported by the record evidence.
Discussion
I. Legal Standard for Exhaustion of Administrative Remedies
Ordinarily, a federal prisoner must exhaust his
administrative remedies before seeking relief under § 2241.2 See
2 In the motion for summary judgment, the respondent argued
that Strom’s § 2241 petition should be dismissed for failure to
exhaust, citing the exhaustion requirement in the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e. In his reply
to the petitioner’s objections, the respondent acknowledged the
error and that a common law exhaustion requirement applies in §
2241 cases. The respondent asserts in his reply that “proper”
exhaustion requires full compliance with an agency’s
administrative procedures, citing Woodford v. Ngo, 548 U.S. 81,
90 (2006). In Woodford, however, the Supreme Court found that
“proper” exhaustion was mandatory under the PLRA, taking
guidance from, among other things, habeas petitions arising
under 28 U.S.C. § 2254, which requires that each claim in a
petition be fully exhausted in state court before it can be
considered by the federal habeas Court. CITE. Woodford itself
neither references § 2241, which does not contain the mandatory
exhaustion requirement found in § 2254, nor addresses, nor
limits the federal court’s common law authority to excuse
exhaustion in a § 2241 action.
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Idada v. Spaulding, 456 F. Supp. 3d 294, 297 (D. Mass. 2020);
Rogers v. United States, 180 F.3d 349, 358 (1st Cir. 1999);
Calderon Hernandez, 2023 U.S. Dist. LEXIS 161096, at *8, 2023 WL
5939634, at *4 (citing Colorado-Cuero v. Warden, FCI Berlin,
Case No. 23-cv-295-JL, 2023 U.S. Dist. LEXIS 123534, at *2, 2023
WL 4565472, at *1 (June 8, 2023), R&R approved, 2023 U.S. Dist.
LEXIS 122061, at *1, 2023 WL 4564379, at *1 (D.N.H. July 17,
2023)). “This administrative exhaustion requirement generally
serves twin purposes: ‘promoting judicial efficiency’ and
‘protecting administrative agency authority.’” Carroll v.
Hazlewood, Case No. 21-cv-139-PB, 2021 U.S. Dist. LEXIS 128036,
at *5, 2021 WL 2877463, at *2 (May 26, 2021) (quoting McCarthy
v. Madigan, 503 U.S. 140, 145 (1992)); R&R adopted, 2021 U.S.
Dist. LEXIS 127225, at *1, 2021 WL 2857184, at *1 (D.N.H. July
7, 2021). “[I]n considering whether to exercise this leeway,
‘courts must balance the interest of the individual in retaining
prompt access to a federal judicial forum against countervailing
institutional interests favoring exhaustion.’” Carroll, 2021
U.S. Dist. LEXIS 128036, at *5, 2021 WL 2877463, at *2 (quoting
McCarthy, 503 U.S. at 146) (other citations omitted).
In determining whether a § 2241 habeas petitioner
should be required to exhaust his administrative
remedies courts “balance the interests of the
individual in retaining prompt access to a federal
forum against countervailing institutional interests
favoring exhaustion.” Because exhaustion is not
jurisdictional, courts may create exceptions to the
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exhaustion requirement. For example, exhaustion may
not be required if a prisoner has belatedly completed
the exhaustion process, or if requiring him to repeat
that process would be an exercise in futility.
Bray v. Yates, No. 2:22-CV-142-JTR, 2023 U.S. Dist. LEXIS 63520,
at *8, 2023 WL 2894918, at *3 (E.D. Ark. Apr. 11, 2023) (quoting
McCarthy, 503 U.S. at 146) (other citations omitted); cf. also
Leighnor v. Turner, 884 F.2d 385, 388 (8th Cir. 1989) (reviewing
a 2241 petition on the merits where prisoner belatedly exhausted
administrative remedies after filing his habeas petition because
his initial non-exhaustion was effectively “cured”).
II. Exhaustion in this Case3
As noted above, Strom entirely exhausted the claims raised
here, utilizing the ARP, although those proceedings were not
completed until after Strom initiated this action. To determine
whether Strom’s § 2241 petition has been exhausted, for purposes
of deciding whether to consider the merits of his claims, the
3 The BOP’s repeated rejection of Strom’s appeals because they
were not legible or because Strom used an improper continuation
page or an improper form, along with extended periods of
nonresponse to Strom’s appeals, could suggest the BOP engaged in
an overly bureaucratic response to his appeals which may have
thwarted his efforts to timely appeal his claims. “[E]xhaustion
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)
(internal quotation marks and citation omitted). Because the
Court finds that Strom has exhausted the claims asserted in his
petition, it need not resolve that question at this time.
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Court balances Strom’s interest in obtaining judicial review of
his disciplinary proceedings against the respondent’s interest
in ensuring claims proceed through the ARP. See Bray, 2023 U.S.
Dist. LEXIS 63520, at *8, 2023 WL 2894918, at *3. Here, where
the ARP procedures have been fully satisfied, the interests of
both parties are best met by finding the claims in Strom’s §
2241 petition to be exhausted to allow this matter to proceed to
a determination on the merits of Strom’s claims. See Leighnor,
884 F.2d at 388; see also Bray, 2023 U.S. Dist. LEXIS 63520, at
*8, 2023 WL 2894918, at *3 (“exhaustion may not be required if a
prisoner has belatedly completed the exhaustion process, or if
requiring him to repeat that process would be an exercise in
futility”) (citing Elwood v. Jeter, 386 F.3d 842, 844 n.1).
If the court were to dismiss the petition for failure to
exhaust, the dismissal would be without prejudice, and Strom
could immediately file a new action using a petition identical
to the petition he filed in this case. Judicial efficiency
would not be served by that result. Accordingly, in the
interest of judicial efficiency and economy, as well as the
court’s general preference for deciding cases on their merits,
the district judge should find that the claims in this matter
are exhausted, and deny the respondent’s summary judgment
motion, without prejudice to the respondent’s ability to file a
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new summary judgment motion addressing the merits of Strom’s
claims.
Conclusion
For the foregoing reasons, the district judge should deny
Warden’s motion for summary judgment (Doc. No. 5) without
prejudice to his ability to file a motion for summary judgment
on the merits. The district judge should, upon approval of this
Report and Recommendation, direct that the respondent, within
thirty days of the date of the order approving the Report and
Recommendation, should either file a motion for summary judgment
on the merits of Strom’s claims, or advise the court that an
evidentiary hearing is necessary to resolve those claims.
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. Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
any objections within the specified time waives the right to
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appeal the district court's order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
February 12, 2024
cc: Jason Strom, pro se
Anna Dronzek, Esq.
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