Banks v. U.S. Marshals Judiciary Security Division

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK BANKS, : CIVIL ACTION NO. 1:21-CV-890

:

Petitioner : (Judge Conner)

:

v. :

:

R. THOMPSON, WARDEN, :

:

Respondent :

MEMORANDUM

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

pursuant to 28 U.S.C. § 2241 filed by petitioner Frederick Banks (“Banks”), an

inmate confined at the Federal Correctional Institution, Allenwood Low, in White

Deer, Pennsylvania (“LSCI-Allenwood”). For the reasons set forth below, the court

will dismiss the petition.

I. Factual Background & Procedural History

On June 12, 2020, Banks was sentenced in the United States District Court

for the Western District of Pennsylvania to an aggregate 104-month term of

imprisonment for wire fraud and aggravated identity theft. (Doc. 12-1 at 1 ¶ 3,

Declaration of Erin Frymoyer, Attorney for the Bureau of Prisons; Doc. 12-1 at 149-

152, Sentence Monitoring Computation Data). His projected release date is

February 4, 2023, via good conduct time. (Doc. 12-1 at 1 ¶ 3; Doc. 12-1 at 149).

In the instant habeas petition, Banks alleges that the Bureau of Prisons

(“BOP”) issued bogus incident reports against him to prevent him from being

released to home confinement. (Doc 1 at 2). He asserts that he was issued the

following three incident reports in thirty days: one for threatening communications;

one for mail abuse criminal, a code 196 violation; and one for using a text service

through Trulincs, a code 296 violation. (Id. at 1-3). As a result of these incident

reports, Banks alleges that staff at LSCI-Allenwood placed him in the Special

Housing Unit (“SHU”) and placed a threat notification in his SENTRY file. (Id.)

For relief, Banks seeks release from custody, removal of the notification in his

SENTRY file, restoration of good conduct time and lost privileges, expungement of

the incident reports, an order directing respondents to stop issuing bogus incident

reports, and an order lifting the Foreign Intelligence Surveillance Act (“FISA”)

warrant lodged against him. (Id. at 3). In addition, Banks moves for class

certification and appointment of class counsel. (Id.)

Respondent argues that the petition must be dismissed for the following

reasons: (1) the habeas petition is successive in part and is subject to the abuse of

writ doctrine; (2) Banks failed to exhaust his administrative remedies with respect

to incident report number 3502416; and (3) certain claims set forth by Banks are not

cognizable in a habeas action. (Doc. 12). We will address each argument in turn.

II. Discussion

A. Abuse of Writ Doctrine

When a prisoner files multiple petitions for habeas corpus relief, the abuse of

the writ doctrine, as set forth in 28 U.S.C. § 2244(a), may bar his claims, and states

as follows:

No circuit or district judge shall be required to entertain an application

for a writ of habeas corpus to inquire into the detention of a person

pursuant to a judgment of a court of the United States if it appears that

the legality of such detention has been determined by a judge or court

of the United States on a prior application for a writ of habeas corpus,

except as provided in section 2255.

28 U.S.C. § 2244(a).

The abuse of writ doctrine precludes inmates from relitigating the same

issues in subsequent petitions or from raising new issues that could have been

raised in an earlier petition. See McCleskey v. Zant, 499 U.S. 467, 489 (1991) (“Our

recent decisions confirm that a petitioner can abuse the writ by raising a claim in a

subsequent petition that he could have raised in his first, regardless of whether the

failure to raise it earlier stemmed from a deliberate choice.”). The government

bears the burden of pleading abuse of the writ. See id. at 494-95; Zayas v. I.N.S., 311

F.3d 247, 254 (3d Cir. 2002). In the instant matter, the government easily meets its

burden of proof.

On April 27, 2021, Banks filed a habeas petition requesting discharge from

custody, transfer to home confinement, and expungement of incident report

number 3497861. Banks v. Thompson, No. 1:21-CV-777 (M.D. Pa.), Doc. 1. In the

instant petition, Banks again challenges incident report number 3497861. Because

Banks previously raised his challenge to incident report number 3497861 in civil

action number 1:21-CV-777, the instant petition will be dismissed, in part, as an

abuse of the writ.

B. Exhaustion of Administrative Remedies

Respondent next argues that Banks failed to exhaust his administrative

remedies with respect to incident report number 3502416. (Doc. 12 at 6-10).

Despite the absence of a statutory exhaustion requirement, 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). In the typical case, the

failure to exhaust all stages of the administrative remedy system prior to the filing

of a habeas petition under 28 U.S.C. § 2241 is a proper basis for dismissal. Moscato,

98 F.3d at 761-62. 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) (per curiam)).

Notably, 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 administrative remedy system whereby

a federal prisoner may seek formal review of any aspect of his imprisonment. 28

C.F.R. §§ 542.10-542.19. If an issue raised by the inmate cannot be resolved through

the administrative remedy system, the BOP will refer the inmate to appropriate

statutorily mandated procedures. 28 C.F.R. § 542.10(c). The system first requires

an inmate to present their complaint to staff before filing a request for

administrative relief, which staff shall attempt to informally resolve. 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 of the event or occurrence and the Warden shall provide a response within

twenty calendar days. 28 C.F.R. §§ 542.14, 542.18. If the inmate is dissatisfied with

the Warden’s response, he may file an appeal to the Regional Director within

twenty calendar days. 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. 28 C.F.R. § 542.15(a). No administrative remedy

appeal is considered fully exhausted until reviewed by the BOP’s Central Office. 28

C.F.R. § 542.15(a).

The BOP maintains a database known as the SENTRY Inmate Management

System (“SENTRY”). In the ordinary course of business, computerized indexes of

all formal administrative remedies filed by inmates are maintained by the

Institution, Regional, and Central Offices. SENTRY generates a report titled

“Administrative Remedy Generalized Retrieval” which allows codes to be entered

to identify the reason or reasons for rejecting a request for administrative relief.

(Doc. 12-1 at 2 ¶ 5; Doc. 12-1 at 3-143, Administrative Remedy Generalized

Retrieval).

On May 10, 2021, Banks was issued incident report number 3502416, charging

him with forging a staff signature and staff title on a BOP form intended for federal

court. (Doc. 12-1 at 144). Three days later, on May 13, 2021, Banks filed the instant

habeas petition. (Doc. 1). When Banks initiated this action, the Discipline Hearing

Officer (“DHO”) hearing concerning incident report number 3502416 had not yet

been held—the DHO hearing was conducted on May 20, 2021. (Doc. 12-1 at 144). It

is quite clear that Banks did not exhaust his administrative remedies concerning

incident report number 3502416 prior to commencing this action in federal court.

Banks argues that the administrative remedy process was effectively

unavailable because staff failed to provide him with administrative remedy forms.

(Doc. 1 at 1; Doc. 13 at 1). The record indicates otherwise. The Administrative

Remedy Generalized Retrieval indicates that since Banks arrived at LSCI-

Allenwood on March 31, 2021, he filed eight administrative remedies at the

Institution, Regional, and Central Offices levels. (Doc. 12-1 at 140-143). Five of

those administrative remedies were filed after Banks received incident report

number 3502416 on May 10, 2021. (Id. at 141-143). Nothing in the record before the

court establishes that Banks even attempted to pursue an administrative remedy

with respect to incident report number 3502416. Despite being well aware of the

BOP’s exhaustion requirements, Banks failed to “avail[] himself of every process at

every turn (which would require all appeals to be timely pursued, etc.).” Spruill v.

Gillis, 372 F.3d 218, 228 (3d Cir. 2004). Banks has not identified BOP actions that

would clearly and unambiguously violate statutory or constitutional rights, and he

has not set forth any facts or advanced an argument that would permit this court to

find that exhaustion of his administrative remedies would subject him to

irreparable injury. Absent proper exhaustion, Banks’ challenge to incident report

number 3502416 is procedurally defaulted, and this claim must be dismissed. To

hold otherwise would frustrate the purposes of the exhaustion doctrine by allowing

Banks to invoke the judicial process despite failing to complete administrative

review.

C. Claims not Cognizable in a Habeas Action

A habeas petition may be brought by a prisoner who seeks to challenge either

the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 45, 494

(1973); Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993). “Habeas 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)). However, 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). Additionally, when an inmate’s challenge is to “a

condition of confinement such that a finding in [the inmate’s] favor would not alter

his sentence or undo his conviction,” a petition for writ of habeas corpus is

inappropriate. Leamer, 288 F.3d at 542.

In the habeas petition, Banks asserts that he is subject to a FISA warrant

which should be lifted, and he challenges his placement in the SHU. (Doc. 1 at 1-3).

These claims do not impact the fact or duration of Banks’ confinement and do not

lie at the core of habeas. See, e.g., In re Banks, 803 F. App’x 653, 654 (3d Cir. 2020)

(finding that Banks’ allegations of FISA-authorized electronic surveillance were

“totally unfounded”); Parks v. Holder, 508 F. App’x 93, 94 (3d Cir. 2013) (holding

that challenge to placement in the SHU did not give rise to a habeas claim). Banks

also alleges that staff at LSCI-Allenwood “illegally placed” a notification in his

SENTRY file to prevent him from being released under the Coronavirus Aid, Relief,

and Economic Security (“CARES”) Act and to prevent him from earning credits

pursuant to the First Step Act. (Doc. 1 at 1-2). According to the Sentence

Monitoring Computation Data, the “current notifies” section identifies the entities

that have simply requested this notification prior to Banks’ release. (Doc. 12-1 at 2

¶ 7; Doc. 12- at 4). The notification does not impact the fact or duration of his

confinement. As such, these claims are not cognizable under § 2241 and will be

dismissed.

III. Conclusion

We will dismiss the petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2241. Because the court is dismissing the habeas petition, the court

declines to consider Banks’ request for class certification and appointment of class

counsel. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: October 27, 2021