VANBUREN v. WARDEN SAGE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JASON VANBUREN, : CIVIL ACTION NO. 1:23-CV-971

:

Petitioner : (Judge Conner)

:

v. :

:

WARDEN SAGE, :

:

Respondent :

MEMORANDUM

Petitioner Jason VanBuren (“VanBuren”), a federal inmate in the custody of

the Federal Bureau of Prisons (“BOP”) housed at the United States Penitentiary,

Lewisburg, Pennsylvania, filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241, alleging that his due process rights were violated while

prison disciplinary proceedings. (Doc. 1). For the reasons that follow, the court will

deny the habeas petition.

I. Background

A. VanBuren’s Conviction & Sentence

VanBuren is serving a 180-month term of imprisonment imposed by the

United States District Court for the Northern District of New York for receipt of

child pornography. (Doc. 11-3). His current projected release date is February 1,

2031, via good conduct time. (Id.)

B. BOP Administrative Remedy Process & VanBuren’s Submissions

The BOP has established a multi-tier administrative remedy system whereby

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

generally 28 C.F.R. §§ 542.10-.19. If an issue raised by the inmate cannot be

resolved through this administrative remedy system, the BOP will refer the inmate

to appropriate statutorily mandated procedures. Id. § 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. Id. § 542.13(a).

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

to the warden, on the appropriate form, within 20 calendar days of the date of the

event or occurrence and the warden shall provide a response within 20 calendar

days. Id. §§ 542.14, 542.18. If the inmate is dissatisfied with the warden’s response,

he may file an appeal to the Regional Director within 20 calendar days. Id. §

542.15(a). The Regional Director has 30 calendar days to respond. Id. § 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 the Central Office within

30 calendar days from the date of the Regional Director’s response. Id. § 542.15(a).

No administrative remedy appeal is considered fully exhausted until reviewed by

the General Counsel. Id. § 542.15(a).

To appeal a decision of a Discipline Hearing Officer (“DHO”), an inmate must

complete two steps. 28 C.F.R. §§ 542.10-542.19. The inmate must first submit a

DHO appeal to the Regional Director for the region where the inmate is currently

located, within 20 days of the DHO’s decision. 28 C.F.R. §§ 542.14(d)(2), 542.15. If

the appeal is denied at step one, the second step requires the inmate to appeal to

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the Central Office within 30 days. Id. § 542.15(a). Again, the administrative remedy

appeal is not considered fully exhausted until reviewed by the General Counsel. Id.

The Administrative Remedy Generalized Retrieval reveals that VanBuren

filed 15 administrative remedies while in BOP custody and only one—number

998212—concerns the claims in the instant habeas petition. (Doc. 11-4). On

November 12, 2019, the Regional Office received administrative remedy number

998212-R1 regarding VanBuren’s DHO appeal. (Id. at 3). On January 10, 2020, the

remedy was denied and closed. (Id.) VanBuren did not file an appeal to the Central

Office. (See Doc. 11-4).

C. BOP Disciplinary Process

The BOP’s disciplinary process is fully outlined in 28 C.F.R. §§ 541-541.8.

These regulations dictate the manner in which disciplinary action may be taken

should a prisoner violate, or attempt to violate, institutional rules. The first step

requires filing an incident report and conducting an investigation pursuant to 28

C.F.R. § 541.5. Staff is required to conduct the investigation promptly absent

intervening circumstances beyond the control of the investigator. 28 C.F.R. §

541.5(b).

Following the investigation, the matter is then referred to the Unit

Disciplinary Committee (“UDC”) for an initial hearing pursuant to 28 C.F.R. § 541.7.

If the UDC finds that a prisoner has committed a prohibited act, it may impose

minor sanctions. Id. If the alleged violation is serious and warrants consideration

for more than minor sanctions, or involves a prohibited act listed in the greatest or

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high category offenses, the UDC refers the matter to DHO for a hearing. Id.

Greatest Severity category offenses carry a possible sanction of, inter alia, loss of

good conduct time credits. Id. § 541.3. In the event that a matter is referred for a

hearing, the warden is required to give the inmate advance written notice of the

charges no less than 24 hours before the DHO hearing and offer the inmate a full-

time staff member to represent him at the DHO hearing. Id. § 541.8 (c) and (d).

At the DHO hearing, the inmate is “entitled to make a statement and present

documentary evidence” and has the right to present documents and submit names

of requested witnesses and have them called to testify. Id. § 541.8(f). The DHO shall

“call witnesses who have information directly relevant to the charge[s] and who are

reasonably available.” Id. § 541.8(f)(2). The DHO need not call repetitive witnesses

or adverse witnesses. Id. § 541.8(f)(3). The inmate has the right to be present

throughout the DHO hearing except during “DHO deliberations or when [his]

presence would jeopardize institution security, at the DHO’s discretion.” Id. §

541.8(e). The DHO must “consider all evidence presented during the hearing.” Id.

§ 541.8(f). “The DHO’s decision will be based on at least some facts and, if there is

conflicting evidence, on the greater weight of the evidence.” Id. The DHO has the

authority to dismiss any charge, find a prohibited act was committed, and impose

available sanctions. Id. § 541.8. The DHO must prepare a record of the proceedings

sufficient to document the advisement of inmate rights, DHO’s findings, “DHO’s

decision”, specific “evidence relied on by the DHO” and must identify the reasons

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for the sanctions imposed. Id. § 541.8(f)(2). A copy must be delivered to the inmate.

Id.

D. Incident Report Number 3306691

On September 21, 2019, VanBuren received Incident Report 3306691

charging him with prohibited act code 312—assaulting any person; prohibited act

code 224a—refusing to obey an order; and prohibited act code 307—insolence

toward staff. (Doc. 11-6). The reporting officer described the incident as follows:

On September 21, 2019 I officer Hulme was assigned as the SHU 4

officer. At approximately 8:20 PM I escorted Inmate Vanburen, Jason

25137-052 from cell 139 on C range to the holding cell 108. While

escorting inmate Vanburen, he attempted to pull away from my

control several times. I gave him a direct order to stop pulling away

from my control and to walk normal to holding cell 108. Once we

arrived at holding ceil 108 he attempted to drag me into the cell stating

to me “Go Fuck Yourself”. He made a violent lunge where it took me

off balance. At this time I immediately grabbed him and placed him on

the ground in order to maintain control. When I placed him on the

ground I used as little amount of force as I could in order to control

him. At this time a call for staff needs assistance in the Special

Housing Unit was made. Inmate Vanburen was then escorted to

medical.

(Id. at 2).

VanBuren received the Incident Report at 8:31 a.m. on September 22, 2019.

(Id. at 2-3). He was advised of his right to remain silent, and he indicated that he

understood his rights as read to him. (Id. at 3). When asked if he would like to

make a comment, he declined. (Id. at 3). During his UDC hearing, which took place

on September 25, 2019, VanBuren commented “Please read my written statement.”

(Id. at 2). The UDC referred the matter to a DHO due to the severity of the incident.

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(Id.). VanBuren received the Notice of Discipline Hearing form and Inmate Rights

at Discipline Hearing form at 10:20 a.m. on September 25, 2019. (Id. at 4-5). He

signed both forms, did not request representation by a staff member, and elected

not to call witnesses on his behalf. (Id.)

The disciplinary hearing convened on October 11, 2019. (Doc. 11-5). The

DHO verbally advised VanBuren of his rights, noted that he received advanced

written notice of the charges on September 22, 2019, recorded that he waived his

right to witnesses and a staff representative, and documented that VanBuren

indicated that he understood his rights. (Id. at 2). No procedural issues were cited

by VanBuren. (Id. at 3). At the hearing, VanBuren stated that “[t]here was never

any time I pulled away from the officer.” (Id. at 2).

In finding that VanBuren committed the prohibited acts as charged, the DHO

relied upon the incident report, written statements of correctional officers, the

investigation, photographs, video footage of the incident, and VanBuren’s written

statement. (Id. at 4-5). The DHO found that the video footage contradicted

VanBuren’s written statement and detracted from his credibility. (Id. at 4). The

finding of guilt for the code 307 violation resulted in disallowance of 14 days of good

conduct time, and loss of phone privileges for two months; the finding of guilt for

the code 312 violation resulted in disallowance of 14 days of good conduct time, and

loss of email privileges for two months; and the finding of guilt for the code 224a

violation resulted in disallowance of 27 days of good conduct time, and loss of

commissary and email privileges for three months. (Id. at 5). The sanctions of loss

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of good conduct time and loss of privileges were levied “to let the inmate know that

he, and he alone, will be held responsible for his actions/behavior at all times.” (Id.)

At the conclusion of the hearing, the DHO advised VanBuren of his appeal

rights. (Id.) The DHO delivered a copy of the report to VanBuren on October 23,

2019. (Id.)

II. Discussion

VanBuren filed the instant petition alleging that his due process rights were

violated during the disciplinary proceedings. (Docs. 1, 8). He seeks expungement of

the incident report and reinstatement of his good conduct time. (Doc. 1, at 7; Doc. 8,

at 7). Respondent argues that the petition must be denied because: (1) VanBuren

failed to exhaust his administrative remedies before filing the instant habeas

petition; and (2) the DHO’s decision satisfies the “some evidence” standard and

VanBuren was afforded all requisite due process. (Doc. 11). We address each

argument in turn.

A. Exhaustion of Administrative Review

Although there is no explicit statutory exhaustion requirement for § 2241

habeas petitions, the United States Court of Appeals for the Third Circuit 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

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“correct their own errors” thereby fostering “administrative autonomy.” Moscato,

98 F.3d at 761-62 (citations omitted). As stated, 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. Relevant here, DHO appeals must be submitted

initially to the Regional Director and need not be filed at the institution. Id. §

542.14(d)(2). 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 federal 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).

VanBuren acknowledges that he did not exhaust administrative remedies

with regard to his present claims. (Doc. 1, at 4, 8; Doc. 8, at 4). He asserts that he

never received a response from the Regional Office, and, thus, could not pursue his

appeal to the Central Office. (Id.) However, the BOP’s administrative remedy

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process has a deemed-denial provision, and explicitly provides that “[i]f the inmate

does not receive a response within the time allotted for reply, including extension,

the inmate may consider the absence of a response to be a denial at that level.” 28

C.F.R. § 542.18. Thus, if VanBuren did not receive a response from the Regional

Director within 30 days of November 12, 2019, he was entitled to consider it denied

and continue to pursue his remedies by appealing to the Central Office. There is no

evidence that VanBuren did so. Even if VanBuren thought further pursuit would

be futile, “[c]ourts in the Middle District of Pennsylvania have consistently held that

‘exhaustion of administrative remedies is not rendered futile simply because a

prisoner anticipates he will be unsuccessful in his administrative appeals.’” Ross v.

Martinez, No. 4:09-cv-1770, 2009 WL 4573686, at *3 (M.D. Pa. Dec. 1, 2009) (quoting

Malvestuto v. Martinez, No. 1:09-cv-1339, 2009 WL 2876883, at *3 (M.D. Pa. Sept. 1,

2009). Because VanBuren did not appeal his adverse decision to the Central Office,

and no exception applies, his claim has not been exhausted. VanBuren’s § 2241

petition must be dismissed.

Assuming arguendo that exhaustion could be excused, VanBuren’s claim is

without merit. Erring on the side of caution, we will alternatively address the

merits of the habeas petition.

B. Due Process Claim

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

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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). Therefore, VanBuren’s

.

claim, that his due process rights were violated in the context of the disciplinary

hearing process and that these violations resulted in a loss of good conduct time, is

properly the subject of this habeas petition. See Sandin v. Conner, 515 U.S. 472

(1995).

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 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.

Further, the decision of the DHO will be upheld if there is “some evidence” to

support the decision. Superintendent v. Hill, 472 U.S. 445, 455 (1985); see also

Young, 926 at 1402-03 (applying Hill standard to federal prisoner due process

challenge 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.

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Judicial review of a prison disciplinary decision is limited to ensuring that the

prisoner was afforded certain procedures, the action against him was not arbitrary,

and that the ultimate decision has some evidentiary support. Id. at 457.

It is clear from the record that VanBuren received adequate and timely

written notice before both the UDC and DHO proceedings. He was notified of his

right to remain silent before both proceedings. He was also afforded the

opportunity to call witnesses, have a staff representative, and present documentary

evidence. His hearing was held before an impartial DHO, and he was provided with

a written copy of the DHO’s decision, which recited the evidence relied upon and

the rationale behind the disciplinary sanctions and was notified of his right to

appeal. Specifically, in arriving at a finding of guilt, the DHO considered the

incident report, staff memoranda, photographs, video footage of the incident, and

VanBuren’s written statement. (Doc. 11-5). After review of the video of the

incident, the DHO concluded that VanBuren’s statement proved false, as it was not

supported by the actual video footage. (Id. at 4). VanBuren was afforded all due

process protections required by Wolff and the DHO’s conclusion, that he committed

Prohibited Act codes 224a, 307, and 312, has some evidentiary support.1

1 VanBuren also claims that prison officials issued the incident report for

retaliatory reasons— “to cover-up staff misconduct of assaulting me…because of

[the] charge (criminal charge) that I’m convicted of.” (Doc. 1, at 3; Doc. 8, at 3).

Because this claim, as it relates to the loss of his good time credits, affects the

duration of VanBuren’s sentence, it is properly raised in his habeas petition. See

Queen v. Miner, 530 F.3d 253, 255 n.2 (3d Cir. 2008). However, our determination

that there is some evidence to support the DHO’s decision negates the claim. See

McGee v. Scism, 463 F. App’x 61, 64 (3d Cir. 2012) (nonprecedential) (citing

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The court next considers the sanctions imposed by the DHO. VanBuren was

found guilty of one 200-level, high severity level prohibited act, and two 300-level,

moderate severity prohibited acts. The sanctions imposed by the DHO were

consistent with the severity levels of the prohibited acts and within the maximum

available to the DHO. See 28 C.F.R. § 541.3 (Table). Further, “[t]he Eighth

Amendment is violated only when a punishment is grossly disproportionate to the

severity of the offense.” Levi v. Holt, 192 F. App’x 158, 162 (3d Cir. 2006)

(nonprecedential)2 (citing Rummel v. Estelle, 445 U.S. 263, 271-74 (1980)).

Therefore, only sanctions that “impose [ ] atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life,” may be deemed

excessive. Moles v. Holt, 221 F. App’x 92, 95 (3d Cir. 2007) (nonprecedential) (citing

Sandin, 515 U.S. at 484). The penalties imposed here, loss of good conduct time and

loss of privileges, do not work an “atypical and significant hardship” on VanBuren

Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) (holding that if a prison

disciplinary committee’s finding of a violation of prison rules is based on some

evidence, that “finding essentially checkmates [a] retaliation claim”)); see also

Lasko v. Holt, 334 F. App’x 474, 477 (3d Cir. 2009) (nonprecedential) (holding

because sufficient evidence supported the DHO’s disciplinary determination, the

retaliation claim must fail) (citing Carter v. McGrady, 292 F.3d 152, 159 (3d Cir.

2002)).

2 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.

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and do not serve to extend his confinement beyond the expected parameters of his

sentence.3 Sandin, 515 U.S. at 484-85. Consequently, he is not entitled to relief.

III. Conclusion

Based on the foregoing, the court will deny the petition for writ of habeas

corpus. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: July 31, 2024

3 As stated supra, VanBuren’s projected release date is February 1, 2031, via

good conduct time. (Doc. 11-3, at 2-4).