Johnson v. Orlando Regional Re-Entry Manager

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

KURTIS JOHNSON,

Applicant,

v. CASE NO. 8:23-cv-224-SDM-CPT

ORLANDO REGIONAL RE-ENTRY

MANAGER,

Respondent.

____________________________________/

ORDER

Johnson applies under 28 U.S.C. § 2241 for the writ of habeas corpus (Doc. 1)

and moves for his immediate release “because he completed his federal term of

imprisonment and is now being held in the Pinellas County Jail, without any charges

or being given any reason why he is in jail. His release date came and went, and he

has yet to find out why he is being held in the maximum-security wing of the jail,

and nobody will tell him why he is there.” (Doc. 2 at 1) However, on the next page

Johnson admits that “he was taken to the county jail” by the United States’ Marshals

because “he had an unauthorized cell phone” while he was in a Residential Re-Entry

Center under the authority of the United States Bureau of Prisons (“BOP”).1

1 As discussed further beginning on page 3, Johnson was near completion of a sentence for

distribution of child pornography.

Johnson represents that, through his family’s inquiries, he learned that the BOP had

revoked good conduct time as a sanction for possessing an unauthorized phone,

which revocation extended his release date by forty-one days. Johnson alleges that

the BOP violated his due process rights by wrongfully rescinding the good conduct

credits without notice and without a hearing. The respondent disagrees (Doc. 5) and

supplies exhibits that refute Johnson’s allegations of lack of due process.

A prisoner may lose credits that reduce the duration of imprisonment but only

if afforded a prisoner’s limited due process rights. As Ponte v. Real, 471 U.S. 491, 495

(1985) (internal quote omitted), explains, “[t]he touchstone of Due Process is

freedom from arbitrary governmental action, but prison disciplinary proceedings are

not part of a criminal prosecution, and the full panoply of rights due a defendant in

such proceedings does not apply.” Additionally, Wolff v. McDonnell, 418 U.S. 539,

556 (1974), establishes five requirements as the process an inmate is due in

disciplinary proceedings. First, the inmate must receive an adequate, written notice

of the charges. Second, he must receive this written notice at least twenty-four hours

before the disciplinary hearing. Third, he must have an opportunity (as limited by

safety needs or correctional goals) to call witnesses and present documentary

evidence in his defense. Fourth, the fact-finder must issue a written report of both

the evidence and the reasons for taking disciplinary action. This written report must

show that the disciplinary committee’s findings were based on “some evidence.”

Superintendent v. Hill, 472 U.S. 445, 454 (1985). Fifth, where circumstances warrant,

an inmate should receive the help of an inmate or staff member. Wolff v. McDonnell,

418 U.S. at 570.

A federal court’s review of a prison disciplinary proceeding is limited “to

determin[ing] whether an inmate receives the procedural protections provided by

Wolff and whether ‘some evidence’ exists which supports the hearing officer’s

determination.” Young v. Jones, 37 F.3d 1457, 1460 (11th Cir. 1994). Neither “a

disciplinary board’s factual findings [n]or [its] decisions with respect to appropriate

punishment are subject to second guessing upon review.” Hill, 472 U.S. at 455.

Consequently, this district court’s review is limited to determining whether Johnson

received the limited process he was due –– not whether the revocation of earned

good conduct credits was an appropriate sanction.

Exhaustion:

As a prerequisite to federal review Johnson must first exhaust his

administrative remedies. An inmate may challenge the BOP’s computation of

sentence through an application for a writ of habeas corpus under 28 U.S.C. § 2241.

See Santiago-Lugo v. Warden, 785 F.3d 467, 469–70 (11th Cir. 2015) (exercising

jurisdiction over federal prisoner’s section 2241 habeas petition challenging the

deprivation of good-time credits following a prison disciplinary proceeding).

However, the inmate first must exhaust all available administrative remedies.

Although exhaustion of administrative remedies is not a jurisdictional requirement in

an action under Section 2241, “that does not mean that courts may disregard a

failure to exhaust and grant relief on the merits if the respondent properly asserts the

defense.”2 Id. at 475. “The exhaustion requirement is still a requirement; it’s just not

a jurisdictional one.” Id.; see also Blevins v. FCI Hazelton Warden, 819 F. App’x 853,

856 (11th Cir. 2020) (“If an inmate fails to exhaust her administrative remedies and

the respondent raises the issue in the district court, the district court may not grant

relief on the inmate’s petition.”).

Woodford v. Ngo, 548 U.S. 81, 90 (2006), explains that “[b]ecause exhaustion

requirements are designed to deal with parties who do not want to exhaust,

administrative law creates an incentive for these parties to do what they would

otherwise prefer not to do, namely, to give the agency a fair and full opportunity to

adjudicate their claims.” The exhaustion requirement both allows the BOP “an

opportunity to correct its own mistakes . . . before it is haled into federal court” and

discourages “disregard of the agency’s procedures.” Id. at 89 (punctuation omitted).

Exhaustion also promotes efficiency, because “[c]laims generally can be resolved

much more quickly and economically in proceedings before an agency than in

litigation in federal court.” Id.

Furthermore, requiring exhaustion in the prison setting “eliminate[s]

unwarranted federal-court interference with the administration of prisons” and

allows “corrections officials time and opportunity to address complaints internally

before allowing the initiation of a federal case.” Woodford, 548 U.S. at 93. The

exhaustion requirement “let[s] the agency develop the necessary factual background

2 Respondent asserts the exhaustion defense.

upon which decisions should be based; . . . permit[s] the agency to exercise its

discretion or apply its expertise; [and] . . . conserve[s] scarce judicial resources, since

the complaining party may be successful in vindicating rights in the administrative

process and the courts may never have to intervene[.]” Alexander v. Hawk, 159 F.3d

1321, 1327 (11th Cir. 1998).

Johnson asserts entitlement to an exception to the exhaustion requirement

because, he contends, he has no access to the necessary forms to exhaust the BOP’s

administrative remedies. The respondent’s exhibits refute Johnson’s asserted

inability to exhaust his administrative remedies.

According to the exhibits –– evidence that Johnson has not opposed because

he filed no reply –– attached to the response (Doc. 5), Johnson was confined at the

Orlando Regional Re-Entry Center (“Center”) having nearly completed his

ninety-six-month sentence for distribution of child pornography. The Center’s rules

allowed Johnson to possess a single cell phone but not one with access to the

internet. On December 21, 2022, Johnson was discovered in possession of a second

cell phone –– a phone with internet access and not registered with the Hillsborough

County Sex Offender Unit as his authorized work phone. Johnson was charged with

violating the Center’s rules (Respondent’s Exhibit 3), and as stated in the incident

report Johnson had downloaded onto the phone “203 videos of pornography along

with photos of what appeared to be an underage female participating in a sexual

act.” (Respondent’s Exhibit 4 at 1) Johnson was provided with a written notice of

the charges, notice of the hearing, and a copy of the incident report. At his

disciplinary hearing Johnson waived his right to staff representation and admitted to

both possessing the unauthorized phone and knowing that it contained pornographic

material, but he contended that the images were not illegal because he had

downloaded the images from “legit” and “reputable” “websites.” (Respondent’s

Exhibits 3 and 4) According to the disciplinary committee’s report, the “[p]hone was

recovered by the Tampa PD and turned over to the FBI where they discovered

additional pornographic material including minors possibly resulting in criminal

charges.”3 (Respondent’s Exhibit 5-3 at 1, ¶ III(D)) Based on the disciplinary

committee’s findings and recommendation, Johnson was recommended for

termination and removal from the program at the Center. (Respondent’s Exhibit

5-4) The disciplinary hearing officer adopted the two recommendations and also

ordered the loss of forty-one days of good conduct time. (Respondent’s Exhibit 5-6)

Johnson was advised of his right to appeal, which he could accomplish either by

using the forms under the Administrative Remedy Procedure or by sending a letter to

the Regional Director, whose address was provided to him. (Respondent’s Exhibits

5-3 at 2 and 5-7) As a consequence, Johnson’s purported lack of access to the BOP

forms did not preclude him from exhausting his appellate rights under the

3 Currently Johnson is detained awaiting trial in 8:23-cr-138-MSS-MRM on a charge of

possessing child pornography based on images on the unauthorized cell phone that is the subject of

this civil action.

Administrative Remedy Procedure because he could effect an appeal by sending a

letter to the director.‘

The application (Doc. 1) under 28 U.S.C. § 2241 for the writ of habeas corpus

is DISMISSED for lack of exhaustion. Johnson’s emergency petition for immediate

release (Doc. 2) is DENIED AS MOOT. The clerk must enter a judgment against

Johnson and close this case.

ORDERED in Tampa, Florida, on May 26, 2023.

Mn Winner,

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

4 Moreover, Johnson’s underlying due process claim lacks merit because the respondent’s

exhibits show that he was afforded all the rights a prisoner is due under Wolffand Hill.

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