The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PEDRO NUNEZ, : CIVIL ACTION NO. 1:22-CV-1135
:
Petitioner : (Judge Conner)
:
v. :
:
WARDEN J. SAGE, :
:
Respondent :
MEMORANDUM
This is a habeas corpus case filed pursuant to 28 U.S.C. § 2241. Petitioner,
Pedro Nunez, challenges three disciplinary sanctions imposed by the United States
Bureau of Prisons (“BOP”) during his incarceration in Schuylkill Federal
Correctional Institution (“FCI-Schuylkill”). We will deny the petition with
prejudice.
I. Factual Background & Procedural History
Nunez is currently serving an 87-month term of imprisonment imposed by
the United States District Court for the District of New Jersey for distribution of
heroin. (Doc. 8-1 at 3). He has been incarcerated in FCI-Schuylkill at all relevant
times. His petition is based on three incident reports during his incarceration.
The first incident report, Incident Report 3207709, arises from events on
December 31, 2018, when correctional officer J. Mathes ordered Nunez to submit to
a breathalyzer test. (Id. at 31). The breathalyzer test indicated Nunez’s blood
alcohol content was .132. (Id. at 31). Mathes conducted a second breathalyzer test
approximately twenty minutes later, which indicated a blood alcohol content of
.093. (Id.) Nunez was charged with prohibited use of drugs or alcohol in violation of
BOP policy and the charges were referred to a Disciplinary Hearing Officer
(“DHO”). (Id. at 28-29). The DHO conducted a hearing on February 4, 2019. (Id.)
Nunez waived his right to staff representation during the hearing, waived his right
to call witnesses, and stated that the incident report was true. (Id. at 28). The DHO
found Nunez guilty and sanctioned him to 40 days loss of good conduct time and
180 days without email privileges. (Id. at 29).
The second incident report, Incident Report 3292188, arises from events on
August 15, 2019, when a special investigation officer discovered three glove-
wrapped cellophane packages containing an unknown orange substance from the
cell that Nunez shared with another inmate. (Id. at 13). The packages were
examined by the prison’s pharmacy department, which determined that the
substance was Suboxone. (Id.) Prison staff charged Nunez with possession of
narcotics, and the charges were referred to a DHO, who conducted a disciplinary
hearing on August 28, 2019. (Id. at 10). During the hearing, Nunez admitted that
the Suboxone belonged to him, waived his right to staff representation or to call
witnesses, and declined to provide any evidence for the DHO’s consideration. (Id.)
The DHO found him guilty and sanctioned him to 30 days of disciplinary
confinement, 41 days loss of good conduct time, and 1 year loss of phone and
visitation privileges. (Id. at 10-11).
The third incident report, Incident Report 3303979, arises from a physical
fight between Nunez and his cellmate on September 15, 2019. (Id. at 23). No staff
members observed the fight, but the officer who responded to the cell observed that
both individuals had physical injuries consistent with being in a fight. (Id.) The
cellmate had contusions on his head and face. (Id.) Nunez was interviewed
following the fight and stated that he was doing sit-ups in the cell when the cellmate
punched him, and Nunez responded by punching him in the head and face. (Id.)
Nunez was charged with fighting with another person, and the charge was referred
to a DHO. (Id. at 18). The DHO conducted a hearing on September 25, 2019. (Id.)
Nunez waived his rights to staff representation or to call witnesses on his behalf,
but maintained his innocence, stating that he never made a statement to officers
admitting his role in the fight. (Id.) Based on the greater weight of the evidence,
the DHO found Nunez guilty, concluding that the account of the responding officer
and the cellmate’s injuries supported a finding that Nunez was guilty of fighting
with the cellmate. (Id. at 19). The DHO sanctioned Nunez to 30 days disciplinary
confinement, 27 days loss of good conduct time, and a $116.00 fine. (Id. at 20).
Nunez challenged the disciplinary sanctions arising from Incident Report
3303979 through administrative remedy appeals pursuant to the BOP’s
administrative remedy program on October 15, 2019 and December 31, 2019. (Id. at
4, 38-42). Nunez has not sought administrative review with respect to Incident
Reports 3207709 or 3292188. (Doc. 8 at 8; Doc. 8-1 at 4, 38-42).
Nunez filed the instant petition on July 12, 2022, and the court received and
docketed the petition on July 22, 2022. (Doc. 1 at 9). Nunez seeks a writ of habeas
corpus compelling the BOP to restore his good conduct time. He argues that the
BOP violated his due process rights by (1) not providing him advance notice of the
charges against him; (2) denying him his right to call witnesses or present
documentary evidence on his behalf; (3) failing to conduct lab testing on the
substance that gave rise to Incident Report 3292188; and (4) violating the Accardi
doctrine by failing to follow BOP rules. (Doc. 2 at 2-4).
Respondent responded to the petition on September 15, 2022. (Doc. 8).
Respondent argues the petition should be denied because Nunez failed to exhaust
administrative remedies with respect to Incident Reports 3207709 or 3292188 and
because his claims with respect to Incident Report 3303979 fail on the merits. (Id.)
Nunez has not filed a reply brief, and the deadline for doing so has expired under
the Local Rules. The petition is accordingly ripe for review.
III. Discussion
We begin with respondents’ administrative exhaustion argument. Although
there is no explicit statutory exhaustion requirement for Section 2241 habeas
petitions, our court of appeals has consistently held that exhaustion applies to such
claims. See Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000) (citing Schandelmeier
v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986)); Moscato v. Fed. Bureau of Prisons,
98 F.3d 757, 760 (3d Cir. 1996). Exhaustion allows the relevant agency to develop a
factual record and apply its expertise, conserves judicial resources, and provides
agencies the opportunity to “correct their own errors” thereby fostering
“administrative autonomy.” Moscato, 98 F.3d at 761-62 (citations omitted). The
BOP has a specific internal system through which federal prisoners can request
review of nearly any aspect of their imprisonment. See generally 28 C.F.R. §§
542.10-.19. That process begins with an informal request to staff and progresses to
formal review by the warden, appeal with the regional director, and—ultimately—
final appeal to the general counsel. See id. §§ 542.13-.15. No administrative remedy
appeal is considered fully exhausted until reviewed by the general counsel. Id. §
542.15(a).
Exhaustion is the rule in most cases, and failure to exhaust will generally
preclude habeas review. See Moscato, 98 F.3d at 761. Only in rare circumstances is
exhaustion of administrative remedies not required. For example, exhaustion is
unnecessary if the issue presented is one that consists purely of statutory
construction. See Vasquez v. Strada, 684 F.3d 431, 433-34 (3d Cir. 2012) (citing
Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981)). Exhaustion is likewise not
required when it would be futile. Rose v. Lundy, 455 U.S. 509, 516 n.7 (1982).
We find that Nunez failed to exhaust administrative remedies with respect to
Incident Reports 3207709 or 3292188. Respondent has produced evidence showing
that Nunez failed to file any administrative remedy requests regarding those
incident reports, and Nunez has not offered any evidence to rebut that fact. (Doc. 8
at 8; Doc. 8-1 at 4, 38-42).
Nunez argues that exhaustion of administrative remedies should be excused
because he has suffered an irreparable harm by losing good conduct time. (Doc. 2
at 2). This argument is without merit. Although irreparable harm may be sufficient
to excuse administrative exhaustion in some circumstances, see, e.g., Brown v.
Warden Canaan USP, 763 F. App’x 296, 297 (3d Cir. 2019), (nonprecedential),1
1 The court acknowledges that nonprecedential decisions are not binding
upon federal district courts. Citations to nonprecedential decisions reflect that the
court has carefully considered and is persuaded by the panel’s ratio decidendi.
courts in this circuit routinely require exhaustion of administrative remedies before
petitioner may seek restoration of good conduct time through a petition for writ of
habeas corpus. See, e.g., Mitchell v. Romine, 158 F. App’x 367, 368 (3d Cir. 2005)
(nonprecedential); Gross v. Warden USP Canaan, No. 1:16-CV-2289, 2017 WL
2720274, at *6-8 (M.D. Pa. June 23, 2017) (Conner, C.J.). We accordingly conclude
that Nunez’s loss of good conduct time, i.e. the nature of the penalty imposed in this
case, is not a sufficient irreparable harm to excuse exhaustion of administrative
remedies and will dismiss his claims with respect to Incident Reports 3207709 and
3292188 without prejudice for failure to exhaust.
Turning to the remaining claim, we will deny Nunez’s claim for habeas
corpus relief with respect to Incident Report 3303979. Federal prisoners serving a
sentence of imprisonment of more than one year have a constitutionally protected
liberty interest in good conduct time. Denny v. Schultz, 708 F.3d 140, 143 (3d Cir.
2013). To protect this interest, prisoners must be afforded procedural due process
protections when they are accused of misconduct that may result in the loss of good
conduct time, including: (1) the right to appear before an impartial decision-making
body; (2) twenty-four hour advance written notice of the disciplinary charges
against them; (3) an opportunity to call witnesses and present documentary
evidence when it is consistent with institutional safety and correctional goals to do
so; (4) assistance from an inmate representative if the charged inmate is illiterate or
complex issues are involved; and (5) a written decision by the fact finder of the
evidence relied upon and the rationale behind the disciplinary action. Wolff v.
McDonnell, 418 U.S. 539, 563-67 (1974).
When reviewing the sufficiency of the evidence in a prison disciplinary
proceeding, the court must determine whether there is “any evidence in the record
that could support the conclusion” reached by the hearing examiner.
Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); see also Griffin v. Spratt, 969
F.2d 16, 19 (3d Cir. 1992). If there is “some evidence” to support the decision, the
Court must reject any evidentiary challenges by the petitioner. Hill, 472 U.S. at 457.
This standard is minimal and does not require examination of the entire record, an
independent analysis of the credibility of the witnesses, or even a weighing of the
evidence. Thompson v. Owens, 899 F.2d 500, 501-02 (3d Cir. 1989).
Nunez argues that the BOP violated his due process rights under Wolff by
failing to give him advance notice of the charges against him before the disciplinary
hearing and by denying him the right to call witnesses or present documentary
evidence. (Doc. 2 at 2-3). The record belies these claims. The DHO’s report
demonstrates that Nunez was given advance written notice of the charges against
him by Lieutenant J. Olshefski six days before the DHO hearing, that Nunez waived
his right to call witnesses during the DHO hearing, and that he did not attempt to
introduce any documentary evidence for the DHO’s consideration. (Doc. 8-1 at 18).
Nunez has not challenged the authenticity of the DHO’s report or provided any
evidence to rebut the report. Hence, we find that Nunez has failed to establish any
violation of his due process rights under Wolff.2
Nunez’s Accardi doctrine argument also fails. “Although the Accardi
doctrine originally contemplated that an agency’s failure to comply with its own
rules automatically would nullify its actions, the Supreme Court since has ‘required
that claimants demonstrate prejudice resulting from the violation unless the rules
were not intended primarily to confer important procedural benefits upon
individuals in the face of otherwise unfettered discretion or unless an agency
required by rule to exercise independent discretion has failed to do so.’” Chong v.
Dist. Dir., I.N.S., 264 F.3d 378, 389 (3d Cir. 2001) (cleaned up) (quoting United States
v. Morgan, 193 F.3d 252, 267 (4th Cir. 1999)). Nunez has not stated what prejudice
he suffered as a result of the BOP’s purported failure to follow its own rules and
accordingly fails to establish his entitlement to relief under the Accardi doctrine.
Moreover, the only rules Nunez asserts the BOP failed to follow are not giving him
advance written notice of the charges against him and not allowing him to call
witnesses or present documentary evidence. But, as noted above, those claims are
refuted by the record of this case.
Finally, although Nunez has not challenged the sufficiency of evidence with
respect to his underlying disciplinary conviction, we find the evidence that was
2 We do not consider Nunez’s argument that the BOP failed to conduct
laboratory testing on the substance identified as Suboxone that was found in his
cell. We concluded above that Nunez failed to exhaust administrative remedies
with respect to the Suboxone claim and we accordingly do not reach the merits of
that claim.
before the DHO sufficient to satisfy the “some evidence” standard. See Hill, 472
U.S. at 457. The observations of the responding officer that Nunez and his cellmate
had physical injuries that were consistent with a fight combined with the contusions
on the inmate’s head and face were clearly sufficient to convict Nunez of fighting.
IV. Conclusion
We will dismiss the petition (Doc. 1) for writ of habeas corpus without
prejudice for failure to exhaust administrative remedies to the extent it seeks relief
with respect to Incident Reports 3207709 or 3292188 and deny the petition with
prejudice to the extent it seeks relief with respect to Incident Report 3303979. An
appropriate order follows.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: April 28, 2023