Ellis v. FCI Berlin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Joshua Ellis
v. Civil No. 23-cv-561-LM-AJ
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Joshua Ellis, a federal prisoner at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”), has filed a petition for a writ of habeas corpus under
28 U.S.C. § 2241, challenging the loss of good conduct time and
other sanctions imposed for his drug-or-alcohol-use disciplinary
violations in 2022/2023 when he was a prisoner in the custody of
the Federal Bureau of Prisons (“BOP”) at FCI Yazoo City Low.
Before this court is the FCI Berlin Warden’s motion for summary
judgment (Doc. No. 3). Ellis objects (Doc. No. 4).
Background
The following facts are undisputed, except as otherwise
indicated. Ellis was convicted of a methamphetamine trafficking
conspiracy and is serving a federal sentence of 120 months, to
be followed by 5 years of supervised release. See United States
v. Ellis, No. 3:17-mj-00024-DSC (W.D.N.C. Jan. 5, 2018)
(judgment).
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Ellis is presently at FCI Berlin, where BOP officials
transferred him in 2023. Prior to his transfer, he was at FCI
Yazoo City Low in Mississippi, where he participated in the
Residential Drug Abuse Program (“RDAP”) at that facility.
Prison officials removed him from the RDAP because of his drug
or alcohol use violations. If he had completed the RDAP, he
asserts, he would have been eligible for release one year early,
and he expected to be released to a halfway house in August
2023. See Aff. of Joshua Ellis (Feb. 13, 2024) (“Ellis Decl.”)
¶¶ 1, 4 (Doc. No. 4). The BOP currently projects Ellis’s date
of release from BOP custody to be December 29, 2025.1
Ellis asserts he tried to sign up for the FCI Yazoo City
Low Medication-Assisted Treatment (“MAT”) program to address his
drug addiction, before his RDAP graduation. As a result of that
effort, he asserts, he was placed on a drug testing regimen. He
failed drug or alcohol tests in November 2022, February 2023,
and April 2023, resulting in three separate disciplinary
proceedings and sets of sanctions. See Doc. No. 3-3. He
pleaded guilty in the first two proceedings and not guilty in
the third proceeding. Each time, the Disciplinary Hearing
Officer (“DHO”) found that he committed the violation. He
1 See BOP Online Inmate Locator, available at
https://www.bop.gov/inmateloc/ (last visited Aug. 20, 2024).
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received copies of the pertinent disciplinary hearing officer
reports on January 5, April 4, and May 25, 2023, respectively,
and each of those reports included the loss of good conduct time
as a sanction. In addition, he asserts, the violations resulted
in his removal from the RDAP (on a date he does not specify),
his placement in the Special Housing Unit (“SHU”) at FCI Yazoo
City Low, and his transfer to FCI Berlin, a medium security
facility.
Ellis filed this § 2241 petition while at FCI Berlin. He
seeks the restoration of good conduct time credits and the early
release he expected to earn from completing the RDAP.2
Ellis has never used the BOP’s Administrative Remedy
Program while in BOP custody. See Doc. No. 3-1, at 2. In this
§ 2241 petition, Ellis does not dispute that he failed to
exhaust the BOP Administrative Remedy Program with respect to
the issues in his petition.
The Warden has moved for summary judgment (Doc. No. 3)
based on Ellis’s failure to exhaust BOP remedies as to any of
his claims before filing this action. Ellis objects (Doc. No.
4), asserting that his failure to exhaust should be excused for
2 Ellis specifically seeks the restoration of “136 days” of
credits, Doc. No. 1, an amount equal to the sum of the good
conduct time (“GCT”) he lost in the April and May 2023
disciplinary proceedings. See Doc. No. 3-3.
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reasons including his inability to obtain a “BP-8” and the
proximity of his expected release date.
Legal Standard
Habeas corpus review pursuant to 28 U.S.C. § 2241 is
appropriate if a person is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). This court may adjudicate claims alleging
that the BOP has unlawfully failed to apply a prisoner’s
sentence credits or unlawfully delayed a person’s transfer to a
community-based custodial setting. See Francis v. Maloney, 798
F.3d 33, 36 (1st Cir. 2015). Petitioner bears the burden of
proving that his continuing detention violates his federal
rights. See Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009).
Summary judgment is appropriate in habeas proceedings when
“‘there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.’”
Bader v. Warden, No. 02-cv-508-JD, 2003 DNH 90, 2003 WL
21228520, at *3, 2003 U.S. Dist. LEXIS 8955, at *8-9 (D.N.H. May
28, 2003) (citations omitted), aff’d, 488 F.3d 483 (1st Cir.
2007). A genuine factual dispute exists if “the evidence is
such that a reasonable jury could resolve the point in the favor
of the non-moving party,” and a material fact is one “that has
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the potential of affecting the outcome of the case.” Hamdallah
v. CPC Carolina PR, LLC, 91 F.4th 1, 16 (1st Cir. 2024)
(internal quotation marks omitted). In making that
determination, the court draws all reasonable inferences in
favor of the nonmoving party from properly supported facts in
the record. Lech v. von Goeler, 92 F.4th 56, 64 (1st Cir.
2024). The court must determine whether the moving party has
shown that he is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a).
Discussion
I. Exhaustion
Courts have imposed a common law requirement that a federal
inmate exhaust available administrative remedies before filing a
§ 2241 petition. Rogers v. United States, 180 F.3d 349, 358
(1st Cir. 1999); Iler-Reyes v. Warden, FCI Berlin, No. 23-CV-
553-SM-AJ, 2024 WL 1773616, at *2, 2024 U.S. Dist. LEXIS 76892,
at *4 (D.N.H. Apr. 3, 2024), R&R adopted, 2024 WL 1770776, 2024
U.S. Dist. LEXIS 74280 (D.N.H. Apr. 24, 2024).
Exhaustion is required because: “(1) judicial
review may be facilitated by allowing the appropriate
agency to develop a factual record and apply its
expertise, (2) judicial time may be conserved because
the agency might grant the relief sought, and (3)
administrative autonomy requires that an agency be
given an opportunity to correct its own errors.”
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Coleman v. U.S. Parole Comm’n, 644 F. App’x 159, 161–62 (3d Cir.
2016); see also Woodford v. Ngo, 548 U.S. 81, 89 (2006). A
prisoner satisfies the exhaustion requirement by properly using
available administrative remedies. See Woodford, 548 U.S.at 90.
Ellis does not argue that he filed any forms or otherwise
formally grieved any of the matters at issue in his § 2241
petition. The Warden has established the absence of any dispute
as to whether Ellis used the Administrative Remedy Program.
II. Exceptions
A. Extraordinary Circumstances
The exhaustion requirement is not jurisdictional and may be
subject to exceptions, including “where exhaustion would be
futile or inadequate to prevent irreparable harm.” Iler-Reyes,
2024 WL 1773616, at *2, 2024 U.S. Dist. LEXIS 76892, at *4-5
(internal quotation marks and citation omitted). “Exceptions to
the exhaustion requirement arise only in extraordinary
circumstances.” Holloway v. Hillsborough Cty. Dep’t of Corr.
Superintendent, No. 21-cv-205-JL, 2021 WL 1227760, at *3, 2021
U.S. Dist. LEXIS 64821, at *7 (D.N.H. Mar. 15, 2021) (internal
quotation marks and citation omitted), R&R adopted, 2021 WL
1227082, 2021 U.S. Dist. LEXIS 63997 (D.N.H. Apr. 1, 2021). The
petitioner bears the burden of showing that an exception to the
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exhaustion requirement applies. Id.; see also Hinojosa v. Horn,
896 F.3d 305, 314 (5th Cir. 2018); Pinson v. Berkebile, 604 F.
App’x 649, 654 (10th Cir. 2015); Tinoco-Jaimes v. United States,
168 F. App’x 356, 359 (11th Cir. 2006).
B. Lack of BP-8 Access
Ellis asserts in a sworn statement that when he tried to
file a “BP-8” while in the SHU at FCI Yazoo City Low, he “was
denied one,” Doc. No. 4, at 1. He also asserts that BOP staff
in that facility and nationwide use such “evasive tactics” to
prevent prisoners from exhausting administrative remedies. Id.
A BP-8 is an informal complaint form that a prisoner may
use to begin the process of grieving a condition of confinement.
See 28 C.F.R. § 542.13(a); Cummings v. FCI Berlin, No. 2024 DNH
023, 2024 WL 1256068, at *2, 2024 U.S. Dist. LEXIS 52038, at *3
(D.N.H. Mar. 25, 2024). BP-8s are not used to appeal
disciplinary sanctions. See 28 C.F.R. §§ 542.13(b),
542.14(d)(2) (disciplinary appeals are submitted initially to
Regional Director); Jones v. Warden, FCI Berlin, No. 19-CV-105-
JL, 2020 WL 1326151, at *3, 2020 U.S. Dist. LEXIS 50187, at *6
(D.N.H. Mar. 2, 2020), R&R adopted, 2020 WL 1322541, 2020 U.S.
Dist. LEXIS 48544 (D.N.H. Mar. 20, 2020).
To appeal a decision of a Discipline Hearing Officer
(“DHO”), an inmate must complete two steps. 28 C.F.R.
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§§ 542.10-542.19. The inmate must first submit a DHO
appeal to the Regional Director for the region where
the inmate is currently located, within 20 days of the
DHO’s decision. 28 C.F.R. §§ 542.14(d)(2), 542.15.
If the appeal is denied at step one, the second step
requires the inmate to appeal to the Central Office
within 30 days. Id. § 542.15(a). . . . [T]he
administrative remedy appeal is not considered fully
exhausted until reviewed by the General Counsel.
VanBuren v. Sage, No. 1:23-CV-971, 2024 WL 3597048, at *1, 2024
U.S. Dist. LEXIS 134773, at *2-3 (M.D. Pa. July 31, 2024).
Since Ellis did not need a BP-8 form to appeal his loss of good
conduct time, his asserted lack of access to a BP-8 form is not
material to the question of whether his failure to exhaust
should be excused.
Moreover, Ellis’s generalized statements regarding the
“evasive tactics” perpetrated by BOP staff are unsupported and
conclusory. Those assertions do not provide sufficient evidence
as to whether prison staff made the grievance process
unavailable to him in particular, so as to excuse the exhaustion
requirement as applied to him. See Byrd v. Fed. Bureau of
Prisons, No. 21-5911, 2022 WL 898772, at *2, 2022 U.S. App.
LEXIS 5329, at *5-6 (6th Cir. Feb. 28, 2022) (unpublished
decision). Accordingly, Ellis has not demonstrated the
existence of any triable question as to the availability of the
BOP Administrative Remedy Program in his circumstances.
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B. Imminence of Release Date
Courts have applied an exhaustion exception based on the
proximity of a release date in circumstances where the
petitioner shows the imminence of the petitioner’s release date,
relative to the date of the agency action challenged in the
§ 2241 petition. See, e.g., Iler-Reyes, 2024 WL 1773616, at *2,
2024 U.S. Dist. LEXIS 76892, at *7 (exception applied in context
of ruling on motion to dismiss, after court accepted as true
allegations that petitioner should have already been released to
a halfway house before he learned that BOP no longer considered
him eligible for halfway house placement under First Step Act).
“A ‘key consideration’ in exercising such discretion is whether
‘relaxation of the requirement would encourage the deliberate
bypass of the administrative scheme.’” Arellano-Ortiz v.
Quintana, No. 2:23-06290-ADS, 2024 WL 648683, at *3, 2024 U.S.
Dist. LEXIS 3228, at *6-7 (C.D. Cal. Jan. 5, 2024) (waiving
exhaustion requirement where petitioner had been detained long
past his release date, and there was no risk of encouraging
deliberate bypass of administrative remedy scheme, where BOP’s
plan to release petitioner in seven days would moot petition).
Ellis argues here that his expected date of release excused
his failure to exhaust. He avers that if he had not lost 136
days of good conduct time, if he had not been removed from the
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RDAP, and if the BOP had approved him for release one year early
upon his completion of the RDAP, he should have been released to
a halfway house in August 2023 only months after the last
disciplinary proceeding at issue in his § 2241 petition.
To the extent Ellis includes the discretionary award of
one-year early release upon RDAP completion as part of his
calculation of the August 2023 date, this court notes that RDAP
completion does not automatically result in early release. See
18 U.S.C. § 3621(e)(2) (BOP may shorten sentence of eligible
prisoner who completes RDAP); see also Lopez v. Davis, 531 U.S.
230, 241 (2001) (“When an eligible prisoner successfully
completes drug treatment, the [BOP] thus has the authority, but
not the duty, both to alter the prisoner’s conditions of
confinement and to reduce his term of imprisonment.”)); Lewis v.
Swaney, No. 6:23-CV-153-REW, 2024 WL 3656162, at *5, 2024 U.S.
Dist. LEXIS 138218, at *13 (E.D. Ky. Aug. 5, 2024)
(“participation in the RDAP does not directly affect the
duration of a federal prisoner’s sentence”). Ellis does not
present any evidence that he was otherwise eligible for early
release and that the BOP would have released him one year early
if he had finished the program. Given the discretion retained
by the BOP, Ellis’s evidence regarding when he would have been
released appears to lack a proper foundation. Cf. Dejapa v.
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Derr, No. 23-00090 JAO-KJM, 2023 WL 2758890, at *4, 2023 U.S.
Dist. LEXIS 57912, at *9 (D. Haw. Apr. 3, 2023) (“Because
Petitioner did not even attempt to resolve her grievances, the
record is bare of any facts that would enable the Court to
determine if Petitioner is eligible for early release or if her
calculations are correct. Any review of Petitioner’s claim that
she is entitled to an earlier release to supervision would
require BOP’s participation and expertise.”).
But even if the court were to deem a date in August 2023 to
be adequately established here as Ellis’s release date, the
motion for summary judgment would still be properly granted. It
is undisputed that Ellis received his first disciplinary
sanctions for using drugs or alcohol in a DHO report delivered
to him on January 5, 2023. He has presented no competent
evidence suggesting that in the ensuing seven months, he could
not have exhausted his administrative remedies; it appears he
lacks any experience upon which he could base that conclusion,
as he has not used the BOP Administrative Remedy Program at all
while he has been incarcerated. Cf. Cadle Co. v. Hayes, 116
F.3d 957, 961 n.5 (1st Cir. 1997) (affidavits that “neither
contain enough specifics nor speak meaningfully to matters
within [affiant’s] personal knowledge” may not defeat summary
judgment motion).
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Moreover, to the extent only the April/May 2023
disciplinary proceedings are at issue here - a matter this court
cannot determine from the record before this court - Ellis’s
sworn, but essentially unfounded assertions, regarding his
inability to exhaust administrative remedies prior to his
expected date of release, are inadequate to avoid summary
judgment. There is a two-step administrative appeals process
which a prisoner could complete within three to four months and
then file a § 2241 petition. See 28 C.F.R. § 542.18 (time
allotted for DHO appeals to Regional Administrator and General
Counsel totals 70 to 120 days, depending on whether BOP extends
those deadlines). The lack of a response within the time
allotted may be treated as a denial. See id.
Three to four months is the time Ellis could have used to
exhaust his BOP appeals, after he received all of his
disciplinary reports at FCI Yazoo City Low, before his expected
release date. Ellis, however, did not so much as attempt to
exhaust his remedies in that time period. Under such
circumstances, there is not a triable issue as to whether the
futility and irreparable harm exceptions to the exhaustion
requirement apply in his circumstances. See Dejapa, 2023 WL
2758890, at *5, 2023 U.S. Dist. LEXIS 57912, at *12 (declining
to waive exhaustion in part because “process could have been
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completed before the date [petitioner] believes she is entitled
to release”). Accordingly, the Warden’s motion for summary
judgment is properly granted.
Conclusion
For the foregoing reasons, the district judge should grant
the Warden’s motion for summary judgment (Doc. No. 3). Then the
clerk’s office should 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. 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
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
August 22, 2024
cc: Joshua Lane Ellis, pro se
Robert J. Rabuck, Esq.
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