Deonte Spicer v. Warden Lewisburg USP

BLD-038 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2099
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DEONTE SPICER,
Appellant
v.
WARDEN LEWISBURG USP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 4-17-cv-02324)
District Judge: Honorable Matthew W. Brann
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 7, 2019
Before: AMBRO, GREENAWAY, JR., and BIBAS, Circuit Judges
(Opinion filed December 3, 2019)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Deonte Spicer appeals from an order of the United States District Court for the
Middle District of Pennsylvania, which denied his petition filed under 28 U.S.C. § 2241.
As no substantial question is presented by the appeal, we will summarily affirm the
District Court’s judgment.
Spicer’s petition alleged that the Bureau of Prisons miscalculated his sentence. He
argued that his 24-month sentence for a District of Columbia parole violation should be
served concurrently with his federal 70-month sentence for assault with a dangerous
weapon. The District Court denied the petition because Spicer failed to exhaust his
administrative remedies and because his claims were without merit. Spicer timely
appealed.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
the District Court’s legal conclusions and review its factual findings for clear error. See
Denny v. Schultz, 708 F.3d 140, 143 (3d Cir. 2013).
As the District Court noted, “[f]ederal prisoners are ordinarily required to exhaust
their administrative remedies before petitioning for a writ of habeas corpus pursuant to
§ 2241.” Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996); see also
Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000) (“[W]e have consistently applied an
exhaustion requirement to claims brought under § 2241.”). Exhaustion is required
because: “(1) judicial review may be facilitated by allowing the appropriate agency to
2
develop a factual record and apply its expertise, (2) judicial time may be conserved
because the agency might grant the relief sought, and (3) administrative autonomy
requires that an agency be given an opportunity to correct its own errors.” Bradshaw v.
Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981). In order to exhaust, a petitioner must
satisfy the procedural requirements of the administrative remedy process. Moscato, 98
F.3d at 761-62. Spicer conceded before the District Court that he did not exhaust the
BOP’s three-step administrative remedy procedure that applies after an unsuccessful
informal attempt at resolving a complaint.1
However, Spicer argued that exhaustion should be excused for various reasons.
He argued that he tried to exhaust administrative remedies at U.S.P. Victorville, but that
he was transferred before he was able to do so.2 Then, when he arrived at U.S.P.
Lewisburg in July 2017, he claims that he received a response to his informal resolution
attempt stating that his release date was January 30, 2019, so he saw no need to pursue
remedies. Dkt. #7 at 2. But then when he asked for a sentence computation sheet, the
1
To properly exhaust a claim, a federal inmate must first attempt informal resolution of
his complaint with staff and, if dissatisfied, he must submit a formal written request for
an administrative remedy to a designated staff member. 28 C.F.R. §§ 542.13-542.14. An
inmate may then appeal that response to the appropriate Regional Director. Id. §
542.15(a). Finally, an inmate may appeal the Regional Director’s decision to the General
Counsel in the Central Office. Id. § 542.15(a).
2
Spicer filed three separate grievances that were rejected for various reasons: failure to
first attempt an informal resolution, failure to submit the grievance through his Unit
Counselor, and failure to file the grievance at the correct level on the correct form. See
Report and Recommendation at 5-6.
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sheet showed the “wrong” date (reflecting consecutive sentences). Spicer filed another
grievance in October 2017, which was denied on the merits. Dkt. #6-1 at 47. He did not
appeal. He argued that the prison’s failure to return to him the informal resolution
showing the “correct” date thwarted his attempts to exhaust his administrative remedies.
But he does not explain why he did not appeal from the October 2017 grievance denial.
Spicer also argued in the District Court that exhaustion would be futile and would
cause him irreparable injury “because his projected release date ha[d] come and gone.”
Dkt. #17 at 3. But even if he were correct that his release date was in January 2019, he
had time to exhaust his administrative remedies in 2017 before filing his federal habeas
petition.
We agree with the District Court’s conclusion that Spicer has failed to allege facts
to support a finding that exhaustion would have been futile or that requiring exhaustion
would subject him to irreparable injury.3 Under these circumstances, the District Court
did not err in dismissing Spicer’s petition for failure to exhaust.
Accordingly, we will affirm the District Court’s judgment.
3
As a result, we do not reach the merits of Spicer’s claims.
4