Compton v. Ebbert

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TRAE JAVAR COMPTON, :

Petitioner, : 1:18-cv-0220

:

v. : Hon. John E. Jones III

:

DAVID J. EBBERT, :

Respondent. :

MEMORANDUM

September 3, 2019

Presently before the court is a petition for writ of habeas corpus (Doc. 1)

pursuant to 28 U.S.C. § 2241, filed by Petitioner Trae Javar Compton

(“Compton”), a federal inmate. Compton contends that his due process rights were

violated during the course of a multitude of prison disciplinary proceedings

conducted while he was incarcerated at the United States Penitentiary at Lewisburg

(“USP-Lewisburg”). (Doc. 1). He also alleges that he is being illegally held in the

Special Management Unit (“SMU”).

The petition is ripe for disposition and, for the reasons that follow, will be

denied.

I. BACKGROUND

A. Disciplinary Proceedings

Compton alleges that the disciplinary proceedings that transpired following

the issuance of Incident Report Numbers 2928319, 2928499, 2928836, 2943200

and 2928416, violated his due process rights.

1. Incident Report Numbers 2928319, 2928499, 2928836,

2943200

Respondent contends that Compton failed to exhaust the administrative

review procedure for Incident Report Numbers 2928319, 2928499, 2928836,

2943200. The BOP has established a multi-tier system whereby a federal prisoner

may seek formal review of any aspect of his imprisonment. (Doc. 6-1, Declaration

of Federal Bureau of Prisons Attorney Advisor Erin Odell (“Odell Decl.”), ¶ 4

28 C.F.R. §§ 542.10, et seq.). The system first requires that an inmate present

their complaint to staff before filing a request for Administrative Remedy, which

staff shall attempt to informally resolve. (Id., citing 28 C.F.R. § 542.13(a)). If

informal resolution is unsuccessful, an inmate may file a formal written complaint

to the Warden, or BP-9, on the appropriate form, within twenty calendar days of

the date on which was the basis of complaint occurred. (Id., citing 28 C.F.R. §

542.14(a)). If the inmate is dissatisfied with the Warden’s response, he may file an

appeal to the Regional Director, or BP-10, within twenty calendar days. (Id., citing

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28 C.F.R. § 542.15(a)). The Regional Director has thirty calendar days to respond.

(Id., citing 28 C.F.R. § 542.18). Finally, if the inmate is dissatisfied with the

Regional Director’s response, that decision may be appealed to the BOP’s General

Counsel at Central Office, or BP-11, within thirty calendar days from the date of

the Regional Director’s response. (Id., citing 28 C.F.R. § 542.15(a)). The Central

Office has forty calendar days to respond. (Id., citing 28 C.F.R. § 542.18).

A request for administrative relief may be rejected at any level if not in

proper form or timely submitted. (Id. at ¶ 5). When an administrative remedy is

rejected, all filings are returned to the inmate with a written notice containing an

explanation of the rejection. (Id. citing 28 C.F.R. § 542.17(b)). The BOP does not

retain a copy of the rejection filings. (Id.). A rejection of an administrative remedy

does not constitute consideration of the issue on the merits. (Id.).

With respect to disciplinary hearing decision appeals, an inmate can initiate

the first step of the administrative review process by filing a direct written appeal

using the appropriate BP-10 form to the BOP’s Regional Director (thus bypassing

the institutional level of review) within twenty days after receiving the disciplinary

hearing officer’s written report. 28 C.F.R. § 542.14(d)(2). If dissatisfied with the

Regional Director’s response, an appeal using the appropriate BP-11 form may be

filed within thirty calendar days with the Central Office. 28 C.F.R. §§ 542.15(a).

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This is the inmate’s final available administrative appeal. An administrative

remedy appeal has not been fully exhausted until it has been considered on its

merits by the BOP’s Central Office. (Id. at ¶ 4, citing 28 C.F.R. §§ 542.10-

542.19).

a. Incident Report Number 2928319

On January 23, 2017, the Disciplinary Hearing Officer (“DHO”) found

Compton guilty of Code 205 of the Inmate Discipline Policy, Engaging in a Sexual

Act, and sanctioned him with a disallowance of twenty-seven days of good conduct

time, disciplinary segregation and loss of various privileges. (Doc. 6-1, p. 49). On

February 21, 2017, Compton appealed the DHO’s findings via administrative

remedy 892549-R1. (Id. at 26). The Regional Office rejected the appeal because it

was untimely and contained more than one letter-sized continuation page. (Id.).

He was directed to provide staff verification indicating that the untimely filing was

not his fault and to resubmit his appeal in proper form within ten days of the date

of the rejection notice. (Id.). On March 3, 2017, Compton filed administrative

remedy 892549-R2. (Id. at 28). The Regional Office rejected the appeal on March

7, 2017, because it was untimely and did not include the required staff verification

concerning the untimeliness. (Id.). The Regional Office again afforded Compton

time to resubmit his appeal in proper form. (Id.). On May 1, 2017, the Regional

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Office received administrative remedy 892549-R3. (Id. at 29). On May 3, 2017,

the Regional Office rejected the appeal because Compton failed to follow the

instructions provided on the prior rejection notices. (Id.). Compton filed no

further administrative remedy appeals related to Incident Report Number 292831.

(Doc. 6-1, Odell Decl., ¶ 10).

b. Incident Report Number 2928499

On January 23, 2017, the DHO found Compton guilty of Code 205 of the

Inmate Discipline Policy, Engaging in a Sexual Act, and sanctioned him with a

disallowance of twenty-seven days of good conduct time, disciplinary segregation

and loss of various privileges. (Doc. 6-1, p. 56). On February 21, 2017, Compton

filed administrative remedy 892550-R1 appealing the DHO’s finding of guilt. (Id.

at 26). The Regional Office rejected the appeal on February 22, 2017, because it

was untimely and contained more than one letter-sized continuation page. (Id.).

Compton was directed to resubmit the appeal in proper form accompanied by staff

verification confirming that the untimely filing was not his fault. (Id.). On March

3, 2017, Compton resubmitted administrative remedy 892550-R2 with the

Regional Office; the Regional Office rejected the appeal because it was not

accompanied by the required staff verification. (Id. at 27). He was provided an

additional ten days to resubmit the appeal in proper form. (Id.). He filed

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administrative remedy 892550-R3. (Id. at 32). The Regional Office rejected the

appeal as untimely. (Id.). Compton did not file any further appeals related to

Incident Report Number 2928499. (Doc. 6-1, Odell Decl., ¶ 11).

c. Incident Report Number 2928836

On January 23, 2017, the DHO found Compton guilty of Code 298/206 of

the Inmate Discipline Policy, Interfering with Staff most like Making a Sexual

Proposal, and sanctioned him with a disallowance of twenty-seven days of good

conduct time, forfeiture of 121 days non-vested good conduct time, disciplinary

segregation, loss of various privileges and a nominal fine. (Doc. 6-1, p. 64).

Compton appealed the DHO’s decision on February 21, 2017 by filing

administrative remedy 892551-R1. (Id. at 27). The Regional Office rejected the

appeal because it was untimely and not in proper form. (Id.). The Regional Office

instructed him to resubmit the appeal in proper form and to provide staff

verification indicating that the reason the appeal was untimely was not his fault.

(Id.). He refiled the appeal on March 3, 2017. (Id. at 28). The Regional Office

rejected the appeal because Compton failed to include the staff verification on the

untimeliness. (Id.). The Regional Office granted him ten days to resubmit the

appeal in proper form. (Id.). Compton took no further administrative action on

Incident Report Number 2928836. (Doc. 6-1, Odell Decl., ¶ 12).

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d. Incident Report Number 2943200

On February 21, 2017, the DHO found Compton guilty of Code 205 of the

Inmate Discipline Policy, Engaging in a Sexual Act, and sanctioned him with a

disallowance of twenty-seven days of good conduct time, disciplinary segregation

and loss of various privileges. (Doc. 6-1, p. 72). Compton did not appeal the

DHO’s findings or avail himself of the administrative review process. (Doc. 6-1,

Odell Decl., ¶ 13).

2. Incident Report Number 2828416

On March 18, 2016, Compton received Incident Report Number 2828416

charging him with Engaging in Sexual Acts in violation of Code 205, Indecent

Exposure in violation of Code 300, and Refusing to Obey an Order in violation of

Code 307, based on the following incident: “On 3/18/2016 at approximately 11:22

AM, while passing out supplies on the second floor of D-block [C.O. J. Rishel]

observed inmate Compton, Trae #26710-057, in cell 209 standing at the cell door

which he appeared to be masturbating. When [C.O. J. Rishel] approached cell 209

housed by inmates Compton and Bulluck #24202-57, inmate Compton then pulled

out his erect penis and began stroking it in an up and down motion while smiling.

[C.O. J. Rishel] then gave inmate Compton a direct order to cease his actions

which he refused and continued his actions.” (Doc. 6-1, p. 41).

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Lieutenant R. Troutman delivered the incident report to Compton at 12:20

p.m. on March 18, 2016. (Id.). The lieutenant advised Compton of his right to

remain silent; Compton verbally acknowledged he understood his rights. (Id. at

43). Compton opted not to make a statement and declined to identify any

witnesses. (Id.). The lieutenant referred the incident report to the Unit Discipline

Committee (UDC) for further action. (Id.).

He appeared before the UDC and stated “I didn’t do it.” (Id. at 42). The

UDC referred the charges to the DHO for further hearing because appropriate

sanctions were not available to the UDC. (Id.) Compton received notice of the

DHO hearing and notice of his rights at the hearing. (Id. at 44-45). He refused to

acknowledge receipt of the forms. (Id.).

Initially, during the March 22, 2016 disciplinary hearing, the DHO advised

Compton of his rights; Compton indicated that he understood them. (Id. at 37).

Staff Representative Correctional Counselor J. Diltz appeared per Compton’s

request. (Id.). “Mr. Diltz stated inmate Compton made no specific requests of him

as a staff representative in this case. Mr. Diltz stated he had no first-hand

knowledge of the incident in this case. Mr. Diltz stated he had no further

information to present, nor statement to make, regarding this case.” (Id.) Inmate

Compton confirmed that he made no specific request of Diltz. (Id.)

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Compton presented no documentary evidence, and denied the charges

against him. (Id.). He testified that the description of the incident was inaccurate.

Specifically, he testified “me and my cellie (Bulluck, Andre #24202-057) just

finished working out. I was standing at the sink washing my underarms. My cellie

was standing right there beside me at the cell door. She (the reporting officer) was

walking by the cell. She looked in the cell door and stated “what are you looking

at?” I said “I’m looking at you.” She got offended by that and walked away from

the cell door. The next thing I knew I was getting an incident report charging me

with Engaging in a Sexual Act. That never happened. She made it up.” (Id.). The

DHO noted that Compton made no complaints of procedural irregularities during

the hearing. (Id.).

Compton requested that his cellmate, Bulluck, be called as a witness. The

DHO summarized his testimony as follows:

Inmate Bulluck testified he and his cellmate Compton [ ] had just

finished working out. Bulluck testified that after they were finished,

Compton wanted to “wash up”, so he tied a bed sheet across the cell for

privacy. Bullock testified he was standing near the rear wall of the cell,

by the window, when he saw the reporting officer walk by the cell.

Bulluck testified “I honestly couldn’t see what he was doing because

he had the sheet up. The only thing I could see was his head. I just

assume he was “washing up”.” In response to questions posed by the

DHO, Bulluck testified he did not hear the reporting officer or Inmate

Compton say anything to each other during the incident.

(Id.).

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The DHO found that Compton committed the Code 205 violation of

Engaging in a Sexual Act. In doing so he relied on the eyewitness account of the

reporting officer contained in the Incident Report, Compton’s testimony, and the

testimony of his cellmate, Bulluck. (Id. at 38, 39). The DHO gave the greater

weight of the evidence to the reporting officer. (Id. at 39). Although he

considered the testimony of Compton and Bulluck, he found that evidence to be

less credible for a number of reasons. (Id.). He noted the following:

First, there are no points of the inmates’ testimony which corroborates

that of the other. In fact, the inmates’ testimony in its entirety

contradicts and conflicts with that of the other… The fact [that] the

inmates’ testimony contradicts and conflicts with one another with

regard to these important facts related to the incident critically detracts

from the credibility of the whole of the testimony of each of the inmates

in this case, and leads the DHO to conclude that the inmates were

simply presenting testimony which they believed would lead the DHO

to conclude Compton did not commit a prohibited act in this case,

regardless of the truthfulness or accuracy of the testimony. The DHO

has determined that, if the inmates were being completely forthright in

their respective testimonies in their entirety, then their accounts of the

incident should have been the same, or remarkably similar, particularly

with regard to such crucial facts as where each of the inmates were

located in the cell at the time the incident occurred, and whether the

reporting officer and/or Compton spoke to one another during the

incident.

(Id.).

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In sanctioning him with the disallowance of twenty-seven days of good

conduct time, disciplinary segregation and loss of various privileges, the DHO set

forth the following rationale:

Engaging in sexual acts in a correctional institution, particularly

inmates manually stimulating their genitals in view of female staff, is

demeaning to staff and undermines their authority. Undermining staff

authority ultimately jeopardizes the security and good order of the

institution. The rationale for the sanctions imposed in this case,

therefore, is to punish the inmate for his misconduct, which is viewed

as having an adverse effect on the security and orderly operation of the

institution, as well as to deter future misconduct. Disciplinary

Segregation is imposed as punishment for the misconduct. Disallowed

Good Conduct Time is imposed to demonstrate that engaging in

misconduct will prolong inmate Compton’s period of incarceration.

Loss of commissary, telephone, and visiting privileges are imposed to

demonstrate that engaging in misconduct will result in the loss of

pleasurable privileges while incarcerated. Finally, loss of mattress is

imposed as a sanction, as all other sanctions previously imposed have

had no deterrent effect with regard to inmate Compton’s repetitive

commission of a variety of prohibited acts.

(Id.).

Compton appealed the DHO’s decision through all levels of the

administrative review process. (Id. at 21, 23). The DHO’s decision was upheld

throughout the administrative process.

B. SMU Placement

On July 5, 2017, Compton sought relief from his alleged illegal placement in

the SMU via the administrative review process. (Doc. 6-1, p. 30). The Warden

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rejected the request because Compton failed to submit the proper number of

continuation pages. (Id.). Compton refiled the request on July 11, 2017. (Id.).

The Warden denied Compton’s request for relief on July 17, 2017. Compton

appealed the denial on August 21, 2017. (Id. at 32). The Regional Office rejected

the appeal because it was untimely and instructed Compton to provide a

memorandum from staff verifying that the untimely filing was not his fault within

ten days. (Id.). Compton resubmitted the appeal on August 30, 2017. (Id. at 33).

The Regional Office rejected the appeal because it did not include the required

staff memo regarding untimeliness and afforded Compton an additional ten days to

correct the defects and resubmit the appeal.. (Id.). Compton did not resubmit the

appeal or seek any additional administrative relief with regard to his placement in

the SMU. (Doc. 6-1, Odell Decl. ¶ 14).

II. DISCUSSION

A federal habeas court may only extend a writ of habeas corpus to a federal

inmate if he demonstrates that “[h]e is in custody in violation of the Constitution or

laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3).

A. Incident Report Numbers 2928319, 2928499, 2928836, 2943200,

and SMU Placement

Respondent argues that the petition should be denied with respect to Incident

Report Numbers 2928319, 2928499, 2928836, 2943200, and the alleged illegal

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placement in the SMU, based on Compton’s failure to exhaust his administrative

remedies prior to seeking review in federal court. (Doc. 6, pp. 21-25). Despite the

absence of a statutory exhaustion requirement attached to § 2241, courts have

consistently required a petitioner to exhaust administrative remedies prior to

bringing a habeas claim under § 2241. Callwood v. Enos, 230 F.3d 627, 634 (3d

Cir. 2000); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.

1996). Exhaustion is required “for three reasons: (1) allowing the appropriate

agency to develop a factual record and apply its expertise facilitates judicial

review; (2) permitting agencies to grant the relief requested conserves judicial

resources; and (3) providing agencies the opportunity to correct their own errors

fosters administrative autonomy.” Moscato, 98 F.3d at 761-62 (citing Bradshaw v.

Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981)). However, exhaustion of

administrative remedies is not required where exhaustion would not promote these

goals. See, e.g., Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion

not required where petitioner demonstrates futility); Lyons v. U.S. Marshals, 840

F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where it “would be

futile, if the actions of the agency clearly and unambiguously violate statutory or

constitutional rights, or if the administrative procedure is clearly shown to be

inadequate to prevent irreparable harm”); Carling v. Peters, No. 00-2958, 2000

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WL 1022959, at *2 (E.D.Pa. July 10, 2000) (exhaustion not required where delay

would subject petitioner to “irreparable injury”).

It is clear from the record that, with regard to Incident Report Numbers

2928319, 2928499, 2928836, 2943200, and the Alleged Illegal Placement in the

SMU, Compton failed to correct the deficiencies at the Regional Office level and

never sought review by the Central Office. As noted supra, the Central Office is

the inmate’s final available administrative appeal and no administrative remedy

appeal is considered to have been fully exhausted until pursued through all levels.

28 C.F.R. § 542.15(a)). The record clearly demonstrates that Compton failed to

fully exhaust his administrative remedies with regard to the enumerated incident

reports and his challenge to his SMU placement. Compton concedes as much in

his Traverse. (Doc. 7, p. 2).

Importantly, there is nothing in the record that compels excusing exhaustion.

Compton does not demonstrate futility by identifying BOP actions that would

clearly and unambiguously violate statutory or constitutional rights, and he has not

alleged any facts that would permit this Court to find that exhaustion of his

administrative remedies would subject him to “irreparable injury.” Despite being

afforded numerous opportunities to do so, Compton failed to “avail [] himself of

every process at every turn (which would require all appeals to be timely pursued,

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etc.).” Spruill v. Gillis, 372 F.3d 218, 228 (3d Cir. 2004). Because he has not

alleged facts that would permit a finding that exhaustion would have been futile, or

that requiring exhaustion would subject him to “irreparable injury,” the petition

will be denied for failure to exhaust administrative remedies with respect to

Incident Report Numbers 2928319, 2928499, 2928836, 2943200, and the alleged

illegal placement in the SMU. To hold otherwise would frustrate the purposes of

the exhaustion doctrine by allowing Compton to invoke the judicial process despite

failing to complete administrative review.

B. Incident Report Number 2828416

Compton’s claim, that his due process rights were violated in the context of

the disciplinary hearing process on Incident Report Number 2828416, and that

these violations resulted in a loss of good conduct time, is properly the subject of

this habeas petition because it directly impacts the duration of his confinement.

The Due Process Clause of the Fifth Amendment of the Constitution of the United

States provides: “No person shall . . . be deprived of life, liberty, or property,

without due process of law.” U.S. CONST. amend. V. Federal inmates possess a

liberty interest in good conduct time. See Wolff v. McDonnell, 418 U.S. 539, 555-

57 (1974); Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991).

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When a prison disciplinary hearing may result in the loss of good conduct

time credits, due process requires that the prisoner receive certain due process

protections: 1) written notice of the claimed violation at least twenty-four (24)

hours in advance of the hearing; 2) the opportunity to call witnesses and present

documentary evidence when consistent with institutional and correctional goals; 3)

assistance in presenting a defense if the inmate is illiterate; 4) an impartial tribunal;

and 5) a written statement by the factfinder as to evidence relied on and reasons for

the disciplinary action. See Wolff, 418 U.S. at 564. The written statement of the

factfinder will be upheld if there is “some evidence” in the record to support the

decision. Hill, 472 U.S. 445, 455 (1985); see also Young v. Kann, 926 F.2d 1396,

1402-03 (3d Cir. 1991) (applying Hill standard to federal prisoner due process

challenges to prison disciplinary proceedings). The determination of whether the

standard is satisfied “does not require examination of the entire record,

independent assessment of the credibility of witnesses, or weighing of the

evidence. Instead, the relevant question is whether there is any evidence in the

record that could support the conclusion reached by the disciplinary board.” Id. at

455.

Compton first asserts that the DHO was not impartial. (Doc. 1, p. 17). In

the context of prison disciplinary proceedings, due process requires that the

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disciplinary tribunal be sufficiently impartial. Meyers v. Alldredge, 492 F.2d 296,

305–07 (3d Cir.1974); see also Wolff, 418 U.S. 539 (disciplinary committee was

sufficiently impartial so as not to violate due process). In order to insure

impartiality, the DHO may not be a victim, witness, investigator, or otherwise

significantly involved in the incident. 28 C.F.R. § 541.8(b). The requirement of an

impartial tribunal “prohibits only those officials who have a direct personal or

otherwise substantial involvement, such as major participation in a judgmental or

decision-making role, in the circumstances underlying the charge from sitting on

the disciplinary committee.” Meyers, 492 F.2d at 306. The Meyers case involved

disciplinary action against members of a prisoners’ committee involved in the

work stoppage. During the work stoppage, an associate warden had considerable

contact with the prisoners’ committee. Thereafter, the same associate warden

served on the disciplinary committee. The Meyers court concluded that the

presence of the associate warden on the disciplinary committee denied the

prisoners an impartial tribunal. 492 F.2d at 305–07. In the matter sub judice, the

DHO did not have a direct personal or otherwise substantial involvement, such as

major participation in the investigation or in the circumstances underlying the

charge. Hence, this claim is without merit.

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Compton also alleges that the DHO’s findings violated his due process rights

because he is actually innocent of the charge. (Doc. 1, p. 17). He asserts that he

should have been charged with the lesser offense of Indecent Exposure. (Id.) 28

C.F.R. § 541.3, Table 1 categorizes a Code 205 violation as a high severity

violation and defines such a violation as “engaging in sexual acts.” The DHO

relied on the eyewitness account of the officer who wrote the incident report, the

testimony of Compton and the testimony of Bulluck, Compton’s cellmate. In

arriving at a finding of guilt, the DHO gave the greater weight of the evidence to

the reporting officer. (Doc. 6-1, p. 39). He meticulously enumerated reasons why

he found the inmates’ testimony less credible than the eyewitness account of the

reporting officer. (Id.). It is clear that the finding that Compton engaged in a

sexual act in violation of Code 205 of the BOP disciplinary code has some

evidentiary support in the record before the DHO.

III. CONCLUSION

Based on the foregoing, the petition for writ of habeas corpus pursuant to 28

U.S.C. § 2241 will be denied.

The Court will enter an appropriate Order.