IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DENNIS FRIEL, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-04-923

:

JOSEPH SMITH, : (Judge Jones) 

:

Respondent :

ORDER

June 2, 2005

Background

Dennis Friel (“Petitioner” or “Friel”) filed this pro se Petition for Writ of Habeas

Corpus (“the Petition”) pursuant to 28 U.S.C § 2241 while confined at the Federal

Prison Camp, in Lewisburg, Pennsylvania (“FPC-Lewisburg”). Named as

Respondent is FPC-Lewisburg Warden Joseph Smith. Service of the petition was

previously ordered.

Friel states that on June 23, 2003, a federal court determined that he had violated

the terms of his supervised release. As a result, he was sentenced to an eighteen (18)

month term of incarceration. Petitioner began service of his parole violation term on

July 18, 2003. He was transferred to FPC-Lewisburg on September 24, 2003. Friel’s 

present Petition claims entitlement to federal habeas corpus relief on the grounds that

the Federal Bureau of Prisons (“BOP”) acted improperly by: (1) refusing to allow him

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1 Petitioner maintains that the decision regarding his CCC placement was improper because it was

based solely upon a recent unlawful BOP policy change regarding CCC eligibility. 

2 By denying him a transfer, Petitioner asserts that correctional officials are violating his

constitutionally protected right to receive visitors.

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a six (6) month placement in a Community Corrections Center (“CCC”)1 and (2)

denying his request for transfer to a federal correctional facility which is closer to his

place of residence.2 As relief, Petitioner seeks a transfer to a federal prison camp

located in Fort Devens, Massachusetts and reconsideration of his request for CCC

placement in accordance with pre-December 2002 BOP policy. 

Respondent seeks dismissal of the Petition on the grounds that: (1) Friel failed

to exhaust his available administrative remedies; (2) the denial of Petitioner’s request

for CCC placement was due to his chronic medical conditions and not the BOP’s

December, 2002 policy change; and (3) the prisoner does not enjoy either a

constitutional or statutory right to a six month confinement in CCC.

Discussion

As previously noted, Petitioner’s claims are twofold. First, Friel claims that he

has been improperly denied a transfer to a federal prison camp which is closer to his

place of residence. Second, his Petition contends that the BOP has improperly denied

his request to spend the last six months of his incarceration in a CCC. Friel argues in

the Petition that this decision was based on a BOP policy change which took place in

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3. Matters excluded from this program are set forth at 28 C.F.R. § 542.12, which states as follows:

(a) An inmate may not use this Program to submit a Request or Appeal on

behalf of another inmate. This program is intended to address concerns

that are personal to the inmate making the Request or Appeal, but shall not

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December 2002. Respondent’s initial argument is that Friel has failed to exhaust his

available administrative remedies with respect to both of his present claims. In his

reply, Friel does not address the non-exhaustion argument.

A federal prisoner seeking mandatory relief from federal prison authorities must

exhaust administrative remedies before bringing his or her claim to federal court. 

Veteto v. Miller, 794 F.2d 98, 100 (3d Cir. 1986); Waddell v. Aldredge, 480 F.2d

1078, 1079-80 (3d Cir. 1973). “A federal prisoner ordinarily may not seek habeas

corpus relief until he has exhausted his available administrative remedies.” Bradshaw

v. Carlson, 682 F. 2d 1050, 1052 (3d Cir. 1981). The doctrine of exhaustion of

administrative remedies is well established and a person is not entitled to judicial relief

until the prescribed remedy has been exhausted. McKart v. United States, 395 U.S.

185, 192 (1969); Arias v. U.S. Parole Comm., 648 F.2d 196, 199 (3d Cir.

1981)(holding that administrative remedies must be exhausted before seeking relief in

federal court); U.S. ex rel. D’Agostino v. Keohane, 877 F.2d 1167, 1173-74 (3d Cir.

1989). 

The BOP has established a multi-tier Administrative Remedy Program whereby

a federal prisoner may seek review of any aspect of his imprisonment.3 See 28 C.F.R.

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prevent an inmate from obtaining assistance in preparing a Request or

Appeal, as provided in § 542.16 of this part. (b) Requests

or Appeals will not be accepted under the Administrative Remedy Program

for claims for which other administrative procedures have been established,

including tort claims, Inmate Accident Compensation claims, and Freedom

of Information or Privacy Act requests. Staff shall inform the inmate in

writing of the appropriate procedure if the Request or Appeal is not

acceptable under the Administrative Remedy Program.

4. CCC inmates are not required to seek informal resolution. Id. at § 542.13(b). Informal

resolution is not required for those matters identified in § 542.14(d), which include sensitive issues and

DHO, Control Unit, and Controlled housing status appeals. Id. Additionally, informal resolution may be

waived in individual cases at the discretion of either the Warden or the institution Administrative Remedy

Coordinator “when the inmate demonstrates an acceptable reason for bypassing informal resolution.” Id.

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§§ 542.10-542.19 (1998). “This program applies to all inmates confined in institutions

operated by the Bureau of Prisons, to inmates designated to Community Corrections

Centers (CCCs) under Bureau of Prisons’ responsibility, and to former inmates for

issues that arose during their confinement but does not apply to inmates confined in

other non-federal facilities.” Id. at § 542.10.

The program provides that, with certain exceptions, "... an inmate shall first

present an issue of concern informally to staff, and staff shall attempt to informally

resolve the issue before an inmate submits a Request For Administrative Remedy.”4

Id. at § 542.13(a). Next, if informal resolution fails, the inmate must submit “a formal

written Administrative Remedy Request, on the appropriate form (BP-9),” within 20

“calendar days following the date on which the basis for the Request occurred.” Id. at

§ 542.14(a). If a valid reason for delay is given, an extension of the filing time may be

granted. Id. at 542.14(b). The Warden has 20 calendar days from the date the

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Request or Appeal is filed in which to respond. Id. at § 542.18. 

If not satisfied with the Warden's response, an inmate may appeal on the

appropriate form (BP-10) to the Regional Director within 20 calendar days of the date

the Warden signed the response. Id. at § 542.15. Finally, if the inmate is dissatisfied

with the Regional Director's response, that decision may then be appealed on the

appropriate form (BP-11) to the General Counsel within 30 calendar days from the

date the Regional Director signed the response. Id. “When the inmate demonstrates a

valid reason for delay, these time limits may be extended.” Id. The Regional Director

has 30 calendar days to respond and the General Counsel has 40 calendar days in

which to respond. Id. at § 542.18.

The response time provided for at each level may be extended in writing “once

by 20 days at the institution level, 30 days at the regional level, or 20 days at the

Central Office level.” Id. Additionally, “[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.” Id.

With respect to his CCC related claim, it is undisputed that the BOP changed its

policies regarding CCC placement in December 2002. It has been previously

recognized that a federal prisoner such as Friel is entitled to have the BOP consider

his eligibility for CCC placement in accordance under the BOP’s pre-December 2002

policies. See Fagiolo v.Smith, Civil No. 3:04-148, slip op. at 8-9 (M.D. Pa. March

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13, 2004)(Conaboy, J.).

In the present case, Respondent argues that Petitioner was denied

recommendation for CCC placement solely due to due to the BOP’s finding that

Friel’s medical condition excluded him from participation in the CCC program. Thus,

since the determination that Petitioner was ineligible for CCC placement was not the

result of the December 2002 policy changes, he is not entitled to be excused from the

exhaustion requirement.

Based on this Court’s review of the undisputed record, it is apparent that

Petitioner was denied admission into the CCC program due to his medical condition, 

specifically, his obesity and chronic hip and back problems. Hence, this Court agrees

with Respondent’s contention that Friel cannot escape satisfaction of the

administrative exhaustion requirement under a theory that to pursue such remedies

would be futile based on the principles announced in Fagiolo.

The undisputed record clearly shows that Respondent has satisfied his burden

of establishing that Friel’s present claims relating to the failure of FCP-Lewisburg

officials to grant him a transfer and a sixty (60) day CCC placement were not

administratively exhausted. Since Friel has not adequately demonstrated any proper

basis as to why he should be excused from the exhaustion requirement, dismissal of

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5 It is additionally noted that a federal inmate is not entitled to CCC placement for any set period

of time. See Serafini v. Dodrill, Civil No. 3:CV-04-311, slip op. at 3 (M.D. Pa. Feb. 23,

2004)(Vanaskie, C.J.). 

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the Petition is appropriate.5 

NOW, THEREFORE, IT IS HEREBY ORDERED:

1. The Petition for Writ of Habeas Corpus is DISMISSED for failure 

to exhaust available administrative remedies.

2. The Clerk of Court is directed to CLOSE the case.

3. Based on the Court’s decision herein, there is no basis for the

issuance of a certificate of appealability.

s/ John E. Jones III

John E. Jones III

United States District Judge

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