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Tucker v. Jones

United States District Court, S.D. Georgia, Brunswick Division

July 24, 2018

DWAYNE TUCKER, Petitioner,
v.
L.A. JONES, Acting Warden, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Petitioner Dwayne Tucker (“Tucker”), who is incarcerated at the Federal Correctional Institution in Jesup, Georgia (“FCI Jesup”), filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Motion to Dismiss, (doc. 9), and Tucker filed a Response, (doc. 13). For the reasons which follow, I RECOMMEND the Court GRANT Respondent's Motion to Dismiss, DISMISS Tucker's Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Tucker in forma pauperis status on appeal.

         BACKGROUND

         Tucker was convicted in the United States District Court for the District of New Jersey for producing child pornography in violation of 18 U.S.C. § 2251(A) (Count 1), and possessing child pornography 18 U.S.C. § 2252A(A)(5)(B) (Count 2). (Doc. 9-1, pp. 1-2, 5-6.) He was sentenced to 264 months' imprisonment on January 4, 2013. (Id.) Tucker has a projected release date of March 8, 2030, via good conduct time credit. (Id. at p. 6.)

         In his Petition, Tucker asserts that his due process rights were violated as a result of disciplinary proceedings arising out of a charged incident of stealing. (Doc. 1.) Due to this incident, the Bureau of Prisons' (“BOP”) Disciplinary Hearing Officer (“DHO”) disallowed Tucker from receiving twenty-seven days of good conduct time and revoked his telephone privileges for three months.

         Tucker's disciplinary proceeding arose out of an incident on November 14, 2016. On that date, Officer Lucas, a BOP Senior Officer Specialist at FCI Jesup, issued Tucker an incident report, charging him with stealing. (Doc. 1, p. 10.) Specifically, the officer alleged that Tucker was pushing a laundry cart with a recreation bag on top. When the Officer Lucas stopped Tucker and searched the bag, he found two plastic bags full of chicken, one plastic bag full of cookies, and several boiled eggs. (Id.) The incident report states that Tucker admitted the items were “from the Officer's Mess.” (Id.) The Unit Disciplinary Committee Chairman referred the incident to the DHO for a hearing. (Id.) On November 17, 2016, BOP Case Manager P. Nash advised Tucker of the charges against him in the incident report and advised him of his rights, including the right to representation at the hearing and the right to call witnesses and present evidence. (Id. at p. 11.) That same day, Tucker also received and signed a Notice of Discipline Hearing. (Doc. 9-2.) Tucker indicated that he wanted to have a staff representative at the hearing but he did not intend to call witnesses. (Id.)

         On November 22, 2016, the DHO held a hearing regarding the charges against Tucker. (Doc. 1, pp. 12-13.) Per Tucker's request, Counselor S. Beal served as Tucker's staff representative at the hearing. (Id.) The DHO considered Officer Lucas's statement as well as a memorandum from Lieutenant McKnight, the officer who reviewed the confiscated items and interviewed Tucker following the incident. (Id.) Lieutenant McKnight's memorandum included a statement from Tucker claiming that he retrieved the items from the trashcan in the staff dining area and, therefore, did not realize he was stealing. (Id.) The DHO also reviewed photographs taken by Compound Officer Millwood of clear plastic bags containing the food items that Tucker allegedly stole. At the hearing, Tucker was given the opportunity to make a statement. (Id.) He claimed that a confiscation form was not submitted for the property, and therefore, there was no evidence that he possessed the contraband. (Id.) He also argued that the contraband was not maintained until the disciplinary hearing and that he never admitted to taking the items. (Id.)

         DHO Aspinwall issued a written DHO Report following the hearing. (Id. at pp. 11-13.) The DHO found, based upon the greater weight of the evidence, that Turner committed the charged offense of stealing. (Id. at p. 12.) The DHO relied upon the statements of Lucas and McKnight as well as Millwood's photographs. (Id.) DHO Aspinwall explained that a confiscation form is only produced when officers “attempt to establish ownership of property seized from an inmate.” (Id.) Because the items taken from Turner “were not available through legitimate channels, ” no confiscation form need be prepared. (Id.) Additionally, because the stolen items were food, health and sanitation concerns prevented the officers from preserving the items for the disciplinary hearing and allowed them to rely upon photographs. (Id.) The DHO sanctioned Tucker by disallowing twenty-seven days of good conduct time and revoking telephone privileges for three months. (Id. at pp. 12-13.) The DHO Report was delivered to Petitioner on November 25, 2016, and it informed Tucker of the DHO's findings, the evidence underlying those findings, and his right to appeal the DHO's decision within twenty days. (Id. at p. 13.)

         In his Section 2241 Petition, Tucker avers that staff members misconstrued his statements, manufactured evidence, and lied about the events surrounding his incident report. (Id. at p. 7.) Tucker also contends that he never “took ownership of the gray tote bag” involved in the disciplinary charges against him. (Id.) He focuses on the allegation that FCI Jesup staff did not provide him a “confiscation form” as he contends they are required to do. (Id.) Additionally, Tucker argues that the items he allegedly stole were only photographed in plastic bags that remained sealed and “[i]t cannot be determined what is contained within the plastic bags in the photographs.” (Id. at p. 8.) Finally, he claims that the allegations against him included an assertion that he stole pork chops, and “FCI Jesup did not have ‘pork chops' to steal at the time.” (Id.)

         Respondent avers Tucker failed to exhaust his administrative remedies prior to filing his Petition, and his Petition should be dismissed as a result. (Doc. 11.) Moreover, Respondent maintains that even if Tucker had exhausted his administrative remedies, he was afforded due process prior to receiving the sanctions. The Court addresses Respondent's contentions in turn.

         DISCUSSION

         I. Whether Tucker Exhausted his Administrative Remedies

         A. Legal Requirements for Exhaustion

         The Eleventh Circuit Court of Appeals has held that a Section 2241 petitioner's failure to exhaust administrative remedies is not a jurisdictional defect. Santiago-Lugo v. Warden, 785 F.3d 467, 474 (11th Cir. 2015); see also Fleming v. Warden of FCI Tallahassee, 631 Fed.Appx. 840, 842 (11th Cir. 2015) (“[Section] 2241's exhaustion requirement was judicially imposed, not congressionally mandated, and . . . nothing in the statute itself support[s] the conclusion that the requirement [is] jurisdictional.”). Nevertheless, the Eleventh Circuit has noted “that the exhaustion requirement is still a requirement and that courts cannot ‘disregard a failure to exhaust . . . if the respondent properly asserts the defense.'” Id. (citing Santiago-Lugo, 785 F.3d at 475). Failure to exhaust administrative remedies is an affirmative defense, and inmates are not required to specially plead or demonstrate exhaustion in their complaint. Jones v. Bock, 549 U.S. 199, 216 (2007). Additionally, the United States Supreme Court has “held that the PLRA's [Prison Litigation Reform Act's] text suggests no limits on an inmate's obligation to exhaust- irrespective of any ‘special circumstances.' And that mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account.” Ross v. Blake, 578 U.S. ___, 136 S.Ct. 1850, 1856 (2016).

         Though the Supreme Court rejected a “special circumstances” exception to exhaustion in Ross, it reiterated that a prisoner need only exhaust those remedies available to him. 578 U.S. at ___, 136 S.Ct. at 1858 (“An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”). The Court recognized “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Id. First, the Court stated that, in some instances, the administrative procedure “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. Thus, if the administrative procedure lacks authority or if the officials with apparent authority “decline ever to exercise it, ” the inmate has no obligation to exhaust the remedy. Id. Second, when administrative remedies are so confusing that they are “essentially ‘unknowable, '” exhaustion is not required. Id. at ___, 136 S.Ct. at 1859 (citing Goebert v. Lee County, 510 F.3d 1312, 1323 (11th Cir. 2007), and Turner, 541 F.3d at 1084). Lastly, exhaustion is not required “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. However, the Supreme Court recognized that, “[g]iven prisons' own incentives to maintain functioning remedial processes, we expect that these circumstances will not often arise.” Id.

         The requirement that the exhaustion of remedies occur “first in an agency setting allows ‘the agency [to] develop the necessary factual background upon which decisions should be based' and giv[es] ‘the agency a chance to discover and correct its own errors.'” Green v. Sec'y for Dep't of Corr., 212 Fed.Appx. 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159 F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)). Furthermore, requiring exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference with the administration of prisons” and allows “corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).[1]

         The Supreme Court has noted exhaustion must be “proper.” Id. at 92. “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91. In other words, an institution's requirements define what is considered exhaustion. Jones, 549 U.S. at 218. It is not the role of the court to consider the adequacy or futility of the administrative remedies afforded to the inmate. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). The court's focus should be on what remedies are available and whether the inmate pursued these remedies prior to filing suit. Id.

         Thus, under the law, prisoners must do more than simply initiate grievances; they must also appeal any denial of relief through all levels of review that comprise the agency's administrative grievance process. Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (“To exhaust administrative remedies in accordance with the PLRA, prisoners must ‘properly take each step within the administrative process.'”) (quoting Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27, 2007) (finding ...


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