Kareem Millhouse v. Warden Lewisburg USP , 666 F. App'x 98 ( 2016 )

BLD-028 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3045
___________
KAREEM HASSAN MILLHOUSE,
Appellant
v.
WARDEN LEWISBURG USP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-16-cv-00239)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 27, 2016
Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Opinion filed: November 16, 2016)
_________
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.
Kareem Hassan Millhouse, 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 November 17, 2015, while Millhouse was incarcerated at the United States
Penitentiary in Lewisburg, Pennsylvania, he was issued an incident report charging him
with fighting with his cellmate. Millhouse was advised of a hearing on the charge, but he
waived his right to staff representation, provided no documents, and declined to appear.
A disciplinary hearing officer (DHO) found Millhouse guilty after considering the
incident report, memoranda from four corrections officers, medical records, post-incident
photographs of Millhouse and his cellmate, and video surveillance footage of an area near
where the fight occurred. The DHO sanctioned Millhouse to the loss of 27 days of good
conduct time, 30 days of disciplinary segregation, and 90 days of loss of commissary and
visiting privileges. Millhouse filed an appeal of the DHO’s decision with the Bureau of
Prison’s (BOP) Regional Director. He never received a response, however, and concedes
that he did not file an appeal to the BOP’s Central Office.
In February 2016, Millhouse filed a petition under § 2241, which he later
amended, alleging that his due process rights were violated in connection with the
disciplinary hearing. The District Court sua sponte dismissed the petition, holding that
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Millhouse had failed to exhaust his administrative remedies and that his claim was
inexcusably procedurally defaulted. Millhouse filed a timely motion for reconsideration,
which the District Court denied. Millhouse appealed.1
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
may appeal the decision to the Regional Director, who must respond within thirty 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 Millhouse failed to exhaust his
administrative remedies because he did not seek Central Office review.2 Because the
1
We have jurisdiction pursuant to 28 U.S.C. § 1291.
2
Failure to exhaust is an affirmative defense and generally should not be the basis of a
sua sponte dismissal. See Ray v. Kertes, 285 F.3d 287, 295-96 (3d Cir. 2002). But in
this case, sua sponte dismissal was appropriate because Millhouse indicated in his
petition that he did not seek review in the Central Office after the Regional Director
failed to respond to his appeal from the DHO’s decision. Id. at 293 n.5 (noting that a
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time for seeking such review has expired, Millhouse’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.
Millhouse attempted to make that showing by arguing that the Regional Director’s
failure to respond to his appeal prevented him from fully exhausting his administrative
remedies. Notably, however, that failure to respond did not foreclose Millhouse from
seeking review in the Central Office. To the contrary, 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). Millhouse 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 Millhouse’s motion for reconsideration, wherein he again alleged
that the failure to exhaust should be excused by the Regional Director’s failure to
respond. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673, 677 (3d Cir. 1999)
(stating that a motion for reconsideration, which is reviewed for abuse of discretion, may
be granted on one of the following grounds: “(1) an intervening change in the controlling
district court may “dismiss sua sponte a complaint which facially violates a bar to suit”).
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law; (2) the availability of new evidence that was not available . . . ; or (3) the need to
correct a clear error of law or fact or to prevent injustice.”).
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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