ALD-337 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1046
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STEVEN A. JOHNSON,
Appellant
v.
WARDEN BIG SANDY USP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-16-cv-01044)
District Judge: Honorable John E. Jones III
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 17, 2017
Before: MCKEE, JORDAN, and RESTREPO, Circuit Judges
(Opinion filed: September 7, 2017)
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OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Steven A. Johnson, a federal prisoner proceeding pro se, appeals from orders of
the United States District Court for the Middle District of Pennsylvania rejecting his
petition for a writ of habeas corpus, 28 U.S.C. § 2241, and denying his motion for
reconsideration. Because this appeal does not present a substantial question, we will
summarily affirm the judgment of the District Court.
On January 14, 2012, while Johnson was incarcerated at the Federal Correctional
Institution near Milan, Michigan (FCI-Milan), he was issued an incident report charging
him with insolence. Johnson was advised of a hearing on the charge, and he waived his
right to staff representation. A disciplinary hearing officer (DHO) found Johnson guilty,
based in part on Johnson’s statement at the hearing that “[he] gave the officer a direct
order to suck [his] dick.” Doc. No. 11-1 at 27. The DHO sanctioned Johnson with the
loss of 14 days of good conduct time and a suspended sentence to time in disciplinary
segregation. Johnson did not file an appeal to the Regional Director of the Bureau of
Prisons (“BOP”).
On March 13, 2012, while Johnson was incarcerated at the United States
Penitentiary near Inez, Kentucky (USP-Big Sandy), he was issued an incident report
charging him with assault. Johnson was advised of a hearing on the charge, and he
waived his right to staff representation. A DHO officer found Johnson guilty of
attempted assault, based on Johnson’s admission at the hearing that he “tried to spit on a
[correctional officer].” Doc. No. 11-1 at 35. The DHO sanctioned Johnson with the loss
of 27 days of good conduct time, a 15-day disciplinary segregation sentence, and six
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months loss of commissary privileges. Johnson did not file an appeal to the Regional
Director of the BOP.
In May 2016, Johnson filed a petition under § 2241 alleging that his due process
rights were violated in connection with the disciplinary hearings, and seeking restoration
of good conduct time.1 The District Court dismissed the petition, holding that Johnson
had failed to exhaust his administrative remedies and that his claim was inexcusably
procedurally defaulted. Johnson timely appealed but also filed a timely motion for
reconsideration, which the District Court denied. Johnson filed an amended notice of
appeal.2 See Fed. R. App. P. 4(a)(4)(B)(ii).
A § 2241 petition is the appropriate vehicle for raising constitutional claims when
a prison disciplinary proceeding results in the loss of good conduct time. See Queen v.
Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008). A federal prisoner must exhaust his
administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241.
See Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). Proper
exhaustion requires that a petitioner assert an issue or claim at every administrative level.
Id. at 761. Pursuant to BOP regulations, a federal prisoner found guilty at a DHO hearing
1
Johnson has been incarcerated, since the time of filing, at the United States Penitentiary
in Waymart, PA (USP-Canaan), which is located in the Middle District of Pennsylvania.
And though Johnson named the custodian of USP-Big Sandy in Kentucky as the
defendant in his petition, the petition was properly brought in the Middle District, which
is where his custodian was at the time of filing. See 28 U.S.C. §§ 2242, 2243.
2
We have jurisdiction pursuant to 28 U.S.C. § 1291.
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may appeal the decision to the Regional Director, who must respond within 30 days of
the appeal’s filing. 28 C.F.R. §§ 542.14(d)(2); 542.18. Following the Regional
Director’s denial, an inmate may appeal to the General Counsel in the Central Office.
§ 542.15(a). “Appeal to the General Counsel is the final administrative appeal.” Id.
We agree with the District Court that Johnson failed to exhaust his administrative
remedies because he did not seek Regional Director or Central Office review. Because
the time for seeking any such review has expired, Johnson’s claim is procedurally
defaulted. Moscato, 98 F.3d at 760. Therefore, judicial review is barred unless he can
demonstrate cause and prejudice. Id. at 761-62.
Johnson attempted to make that showing by arguing that both the Regional
Director and the Central Office had ignored some of his prior (unrelated) appeals, which
shows that no effective administrative remedy exists. But the failure to respond to a
previous appeal does not excuse Johnson from exhausting his administrative remedies
now. Indeed, the regulations provide that “[i]f the inmate does not receive a response
within the time allotted for reply . . . the inmate may consider the absence of a response
to be a denial at that level.” § 542.18; see also Moscato, 98 F.3d at 762 (concluding that
there was no cause for default of administrative remedies where petitioner failed to allege
any “external impediment” to filing a timely appeal). Johnson therefore failed to
demonstrate cause for his failure to exhaust administrative remedies. Finally, we
conclude that the District Court did not abuse its discretion in denying Johnson’s motion
for reconsideration, wherein he again alleged that the failure to exhaust should be
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excused by the failure of the Regional Director and the Central Office to respond to his
previous appeals. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673, 677 (3d Cir.
1999) (describing proper grounds for a motion for reconsideration).
There being no substantial question presented on appeal, we will summarily affirm
the judgment of the District Court. See 3d Cir. LAR 27.4; I.O.P. 10.6.
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