Opinion

Gregor v. Howard

Court
District Court, M.D. Pennsylvania
Filed
Apr 30, 2021
Cited by
0 cases
Authority
More cited than 29.1%

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”

How later courts described this case

  • 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”
  • exhaustion not required where petitioner demonstrates futility

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BENJAMIN EDWARD GREGOR , :

Petitioner, : 1:20-cv-1619

:

v. : Hon. John E. Jones III

:

CATRICIA HOWARD, :

Respondent. :

MEMORANDUM

April 30, 2021

Presently before the court is a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2241 (Doc. 6), filed by Petitioner Benjamin Edward Gregor

(“Gregor”), a federal inmate in the custody of the Federal Bureau of Prisons

(“BOP”), incarcerated at the Federal Correctional Complex at Allenwood, White

Deer, Pennsylvania. Gregor seeks review of the BOP’s decision to deny him

release to home confinement under the Coronavirus Aid, Relief, and Economic

Security (“CARES”) Act. (Id.).

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

dismissed.

I. BACKGROUND

On June 11, 2020, the BOP reviewed Gregor for home confinement under

the five factors pursuant to 18 U.S.C. § 3621(b), 18 U.S.C. § 3624(c)(2), the

CARES Act, and Memoranda from the Attorney General to the Director of the

Bureau of Prisons (“BOP”), dated March 26, 2020 and April 3, 2020. (Doc. 12-1,

p. 3, Declaration of Johnathan Kerr (“Kerr Declaration”), ¶ 2). The BOP

determined Gregor “to not be appropriate for home confinement based on a

Medium security Classification, a Medium recidivism risk Pattern score, does not

suffer from a serious underlying medical condition putting him at high risk for

severe illness from COVID-19 under the Center for Disease (CDC) guidelines, and

because (at that time) he only served 28% of his imposed federal term and was

greater than 18 months from his projected good conduct time release date.” (Id. at

¶ 2). Gregor did not appeal this determination. (Id. at ¶¶ 2, 10, 11).

II. DISCUSSION

Gregor challenges the denial of his pre-release placement via 28 U.S.C. §

2241. Section 2241 “confers habeas jurisdiction to hear the petition of a federal

prisoner who is challenging not the validity but the execution of his sentence.”

Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).

Respondent argues that the petition should be dismissed based on Gregor’s

failure to exhaust his administrative remedies prior to seeking review in federal

court. (Doc. 12, pp. 13, 14). 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.

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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 WL 1022959, at *2 (E.D.Pa. July 10, 2000)

(exhaustion not required where delay would subject petitioner to “irreparable

injury”).

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

seek formal review of any aspect of his imprisonment. 28 C.F.R. §§ 542.10-

3

542.19 (2005)). 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. (Doc. 12, p. 13, n. 4 citing 28 C.F.R. § 542.13(a). If

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

to the Warden, 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). If the

inmate is dissatisfied with the Warden’s response, he may file an appeal to the

Regional Director within twenty calendar days. (Id., citing 28 C.F.R. § 542.15(a)).

The Regional Director has thirty calendar days to respond. 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 within

thirty calendar days from the date of the Regional Director’s response. (Doc. 12,

p. 13, n. 4 citing 28 C.F.R. § 542.15(a)).

Gregor submitted a request to be released to home confinement on June 8,

2020. (Doc. 12-1, p. 17). On June 12, 2020, the Warden notified him that he was

“not a suitable candidate for home confinement placement.” (Id. at p. 16). He

failed to appeal this decision. Gregor does not dispute this failure to exhaust.

Instead he states, without any supporting facts, that exhaustion would be futile.

Because he has not alleged facts that would permit a finding that exhaustion would

4

have been futile, and does not establish irreparable injury, the will be dismissed

failure to exhaust administrative remedies. To hold otherwise would frustrate the

purposes of the exhaustion doctrine by allowing Gregor to invoke the judicial

process despite failing to complete administrative review.1

III. CONCLUSION

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

U.S.C. § 2241will be dismissed without prejudice.

The Court will enter an appropriate Order.

1 Gregor also includes various civil rights claims in his reply. (Doc. 13, p. 6). “[H]abeas relief

is clearly quite limited: ‘The underlying purpose of proceedings under the ‘Great Writ’ of habeas

corpus has traditionally been to ‘inquire into the legality of the detention, and the only judicial

relief authorized was the discharge of the prisoner or his admission to bail, and that only if his

detention were found to be unlawful.’” Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002)

(quoting Powers of Congress and the Court Regarding the Availability and Scope of Review,

114 Harv.L.Rev. 1551, 1553 (2001)). When seeking to impose liability due to the deprivation of

any rights, privileges, or immunities secured by the Constitution and laws, the appropriate

remedy is a civil rights action. See Leamer, 288 F.3d at 540. “Habeas corpus is not an

appropriate or available federal remedy.” See Linnen v. Armainis, 991 F.2d 1102, 1109 (3d Cir.

1993). His claim that being fed unhealthy foods and being locked in a cell for twenty-three

hours per day has caused his mental and physical health to deteriorate does not involve a

challenge to the legality of his present incarceration. (Doc. 13, p. 6), Consequently, the claim

will be dismissed without prejudice to his right to reassert it in a properly filed civil rights action.

5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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