1

Stanko’s involuntary transfer out of this district does not defeat this court’s

jurisdiction. See Barden v. Keohane, 921 F.2d 476, 477 (3d Cir. 1990) (retaining

jurisdiction over the habeas petitioner who had been involuntarily transferred to

another federal prison outside the court’s jurisdiction).

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RUDY STANKO, :

:

Petitioner :

: CIVIL NO. 4:09-CV-2421

:

v. : (Judge McClure)

:

WARDEN DAVID EBBERT, :

:

Respondent :

MEMORANDUM

 April 19, 2010

Petitioner Rudy Stanko, an inmate presently confined at the Terre Haute Federal

Correctional Institution (“FCI Terre Haute”) in Terre Haute, Indiana, initiated the

above action pro se by filing a petition for writ of habeas corpus (“petition”) under the

provisions of 28 U.S.C. § 2241. (Rec. Doc. No. 1.) At the time of filing, Stanko was

confined at the Allenwood Federal Correctional Institution (“FCI Allenwood”) in

White Deer, Pennsylvania.1

By Order dated December 28, 2009, Respondent was deemed to be the only

proper respondent to this action, and the Court directed him within twenty-one (21)

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2

Stanko requested extensions of time because he claimed that his legal

materials, including documents related to this action, had been confiscated by FCI

Allenwood staff. (See Rec. Doc. Nos. 5, 11.) Along with our January 29, 2010 Order

granting his first request for an extension of time, the Clerk of Court sent a copy of the

petition. (See Rec. Doc. No. 7.) In our February 24, 2010 Order, we directed

Respondent to return Stanko’s legal file to him to enable him to file a reply. (See Rec.

Doc. No. 12.) 

 On March 2, 2010, Respondent filed a notice indicating that the Federal Bureau 

of Prisons (“BOP”) had not confiscated Stanko’s legal file as he alleged, but rather

Stanko left the file in the law library during lunch on January 24, 2010 in order to

reserve his spot, and that when he returned, the file was not where he had left it. (See

Rec. Doc. No. 13.) Although Stanko maintains that BOP staff confiscated his file (see

Rec. Doc. No. 18), a Memorandum submitted by Respondent that was prepared by

Stanko’s former Correctional Counselor at FCI Allenwood confirms that, on January

24, 2010, Stanko approached his counselor and stated that he had left his legal work in

the education area to reserve his spot and that, upon his return, his work was missing. 

(continued...)

2

days to file a response solely as to Ground III in the petition, in which Stanko asserts

due process violations in connection with disciplinary proceedings that occurred on

July 16, 2009 while he was an inmate at the FCI El Reno in El Reno, Oklahoma, and

the portion of Ground II challenging the sanction he received of twenty-seven (27)

extra days in jail and seeking expungement of that sanction. (See Rec. Doc. No. 3

(citing Rec. Doc. No. 1 at 7-9 ¶¶ II, III; at 20 ¶ 2).) The remaining respondents and

claims were dismissed. (See id.) 

 On January 19, 2010, Respondent filed a response (Rec. Doc. No. 4) and 

supporting exhibits (Rec. Doc. No. 4-2). After two (2) requests for extensions of

time2

, which were granted, on March 5, 2010, Stanko filed a reply (Rec. Doc. No. 14),

Case 4:09-cv-02421-JFM-SF Document 22 Filed 04/19/10 Page 2 of 12
2

(...continued)

(See Rec. Doc. No. 19 at 3.) In addition, Respondent confirmed that, on February 5,

2010, seven boxes of Stanko’s personal property were delivered to FCI Terre Haute

from FCI Allenwood, and that five of the seven boxes contained legal work. (See id.

at 2.) Therefore, it is apparent from the record that Respondent did not confiscate

legal materials that were needed by Stanko to prepare his reply in this matter and that

BOP staff promptly forwarded his personal property, including whatever legal

materials he had in his possession at the time of his transfer, from FCI Allenwood to

FCI Terre Haute.

3

a declaration in support of his reply (Rec. Doc. No. 15), and a statement of undisputed

facts in support of his petition (Rec. Doc. No. 16). Accordingly, the petition is fully

briefed and ripe for review. For the reasons set forth below, the petition will be

dismissed.

I. Factual Background

A. Stanko’s BOP Confinement

On August 3, 2006, Stanko was sentenced in the United States District Court 

for the District of Nebraska to a seventy-two (72) month term of imprisonment for the

offense of being a felon in possession of a firearm. (Rec. Doc. No. 4-2 at 4,

McCluskey Decl., ¶ 5.) His projected release date is August 29, 2011 via good

conduct time release. (Id.) At the time of filing, Stanko was confined at FCI

Allenwood, where he had been an inmate since July 27, 2009. (Id. ¶ 4.) He formerly

was confined at FCI El Reno, where was an inmate from February 25, 2009 through

July 22, 2009. (Id.; Rec. Doc. No. 4-2 at 9, Public Information Inmate Data.) 

Case 4:09-cv-02421-JFM-SF Document 22 Filed 04/19/10 Page 3 of 12
4

Accordingly, at the time of the incident and disciplinary hearing that form the basis

for his petition, Stanko was confined at FCI El Reno. (Rec. Doc. No. 4-2 at 4 ¶ 4.) 

B. Facts Regarding Disciplinary Report and Hearing

On July 10, 2009, BOP staff at FCI El Reno issued Incident Report No. 

1891075 charging Stanko with committing the prohibited act of stealing, which is a

violation of Code 219. (See Rec. Doc. No. 4-2 at 55, Incident Report.) The incident

report was delivered to Stanko on July 10 at 1:00 p.m. (See id.) The report noted that,

on that same date, at approximately 12:30 a.m., while screening outgoing mail, the

reporting officer observed a document from the law library in an envelope addressed

by Stanko and accompanied by a letter written by Stanko. (See id.; Rec. Doc. No. 4-2

at 56, Copy of document.) 

 On July 13, 2009, Stanko was advised that a hearing would be scheduled 

before the DHO at the next available docket. (See id. at 59, Notice of Discipline

Hearing.) Stanko also was advised of his rights before the DHO, including his

entitlement to have a full-time staff member represent him at the hearing, and his right

to call witnesses and to present documentary witnesses. (See id.) 

At the hearing on July 16, 2009, Stanko was present and admitted the charges. 

(See id. at 61, DHO Report.) He stated, “I’m guilty.” (See id.) The DHO Report

indicates that Stanko’s due process rights were read and reviewed with him by the

Case 4:09-cv-02421-JFM-SF Document 22 Filed 04/19/10 Page 4 of 12
5

DHO at the time of the hearing, and that Stanko stated that he understood his rights. 

(See id. at 62.) The Report also states that Stanko provided no documentation in his

defense and did not request witnesses or a staff representative. (See id.) The DHO

found that Stanko had committed the prohibited act of stealing in violation of Code

219. (See id.) The DHO explained this finding as follows:

The DHO bases this finding on the reporting officer’s written statement

that on July 10, 2009 at approximately 12:30 AM while screening

outgoing mail from the special housing unit the officer observed a

document titled “Criminal Law Reporter” in an envelope addressed by

you. The envelope was opened in your presence and it was determined

that the above-mentioned document had been removed from the unit Law

Library. These documents are to be accessible to all inmates and not to

be removed from the library. 

The DHO finds that you provided no documentary evidence in your

defense. You provided the following statements to the DHO. ‘I’m

guilty.’ 

Therefore, based on the greater weight of evidence, the dHO finds that

you committed the prohibited act of stealing, Code 219.

(See id.) The DHO sanctioned Stanko with the disallowance of twenty-seven (27)

days of good conduct time; thirty (30) days of disciplinary segregation; and a

recommendation for a disciplinary transfer. (See id.) The DHO provided the

following reasoning for these sanctions:

Stealing will not be tolerated in the correctional environment. It can have

extremely serious repercussions for both staff and inmates, since it tends

to result in further disruptive and violent behavior. The sanctions of

disallowance of 27 good conduct time and disciplinary segregation for 30

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6

days are imposed as sanctions to show you this type of offense is of a

serious nature and merits serious sanctions. The sanction of disciplinary

transfer is recommended based on the severity of this act. Your role in

this prohibited act is evidence that your continued presence in general

population at this institution may disrupt the orderly operation of the

institution.

(See id. at 63.) 

II. Discussion

 Although 28 U.S.C. § 2241 does not contain a statutory exhaustion 

requirement, courts in the Third Circuit consistently have required a petitioner to

exhaust his administrative remedies before filing a petition for a writ of habeas corpus. 

Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996) (citing Bradshaw

v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981) (per curiam)); e.g., Callwood v. Enos,

230 F.3d 627, 632 (3d Cir. 2000). The Third Circuit requires administrative

exhaustion for habeas claims raised under § 2241 because “(1) allowing the

appropriate agency to develop a factual record and apply its expertise facilitates

judicial review; (2) permitting agencies to grant the relief requested conserves judicial

resources; and (3) providing agencies the opportunity to correct their own errors

fosters administrative autonomy.” Moscato, 98 F.3d at 761-62 (citations omitted).

The BOP has a three-level Administrative Remedy Program that is available to

inmates for “review of an issue which relates to any aspect of their confinement.” 28

C.F.R. § 542.10. Inmates first must informally present their complaints to staff, and

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7

staff shall attempt to informally resolve any issue before an inmate files a request for

administrative relief. 28 C.F.R. § 542.13(a). If unsuccessful at informal resolution,

the inmate may raise his complaint with the warden of the institution where he is

confined through the submission of a BP-9 form. Id. at § 542.14(a). If dissatisfied

with the response, the inmate may appeal an adverse decision first to the Regional

Office and then to the Central Office of the BOP. Id. at § 542.15(a). No

administrative remedy appeal is considered to have been fully exhausted until it has

been denied by the Central Office of the BOP. Id.

BOP records reflect that, at the time of the filing of a Response in this action on

January 19, 2010, Stanko had filed fifty-five (55) administrative remedies since June

22, 2009. (Rec. Doc. No. 4-2 at 6, McCluskey Decl., ¶ 11; Rec. Doc. No. 4-2 at 18-

50, Administrative Remedy Generalized Retrieval.) The records show that, although

Stanko attempted to grieve the DHO decision that forms the basis for his petition, he

never completed the process. (See id.) Specifically, Stanko first attempted to appeal

the DHO’s decision in an administrative remedy received on July 29, 2009. (See id. at

26-27.) The response to this remedy indicated that he had to submit his regional

appeals to the Northeast Region because he had been transferred to FCI Allenwood on

July 27, 2009. (See id.) 

 On August 28, 2009 and October 2, 2009, Stanko filed administrative remedies 

Case 4:09-cv-02421-JFM-SF Document 22 Filed 04/19/10 Page 7 of 12
8

554556-R1, -R2, and -R3 with the Northeast Regional Office attempting to appeal the

DHO decision and requesting a copy of the DHO report. (See id. at 33, 39-40.) The

DHO report was located, and Stanko was provided with a copy. (See id. at 40.) 

On October 20, 2009, Stanko filed administrative remedy 554556-R4 with the

Northeast Regional Office appealing the DHO decision for incident report 1891075. 

(See id. at 41.) On November 16, 2009, the Northeast Regional Office denied the

appeal and informed Stanko that he had thirty (30) days to appeal the denial to the

BOP Central Office. (See id.; Rec. Doc. No. 4-2 at 53, Response.) 

On November 24, 2009, Stanko filed administrative remedy 556556-A1 with

the Central Office attempting to appeal the Regional Office denial. (See Rec. Doc.

No. 4-2 at 47.) The Central Office rejected the remedy because Stanko failed to

provide a copy of the Regional Office denial with his appeal. (See id.; Rec. Doc. No.

4-2 at 6, McCluskey Decl., ¶ 13.) Accordingly, Stanko was instructed to re-file this

remedy along with a copy of the Regional Office denial within fifteen (15) days of

January 8, 2010, the date of the Central Office rejection. (See Rec. Doc. No. 4-2 at

47; Rec. Doc. No. 4-2 at 6 ¶ 13.) 

Stanko filed the instant petition on December 9, 2009, which was a month

before the Central Office responded to his appeal. (See id.) In his reply brief, Stanko

argues that he fulfilled the exhaustion requirement. (See Rec. Doc. No. 14 at 3-4.)

Case 4:09-cv-02421-JFM-SF Document 22 Filed 04/19/10 Page 8 of 12
3

28 C.F.R. § 542.18 provides that, if an inmate receives no response within the

time allotted for reply, “the inmate may consider the absence of a response to be a

denial at that level.” 

9

Stanko alleges that it was appropriate for him to file an appeal to the Central Office

without providing a copy of the Regional Office’s rejection of his appeal because the

Regional Office had failed to timely dispose of his appeal. (See id. at 4.) He claims

that he deemed the appeal to have been denied pursuant to 28 C.F.R. § 542.183

 and

properly proceeded to file his appeal to the Central Office without having received a

response from the Regional Office. (See id.) He also claims that he never received a

response from the Central Office and that therefore, he deems his appeal to that Office

to be denied, and he has fulfilled the exhaustion requirement. (See id.) 

Stanko’s version of events is directly contradicted by the BOP records

submitted by Respondent. The records of his administrative remedies establish that

Stanko filed his appeal to the Regional Office on October 20, 2009, and that a

response was due by November 19, 2009. (See Rec. Doc. No. 4-2 at 41,

Administrative Remedy Generalized Retrieval.) The records show that the Office

timely responded to the appeal on November 16, 2009. (See id.; Rec. Doc. No. 4-2 at

53, Response.) The records also establish that Stanko received a response to his

November 24, 2009 appeal to the Central Office on January 8, 2010. (See id. at 47.) 

Accordingly, there is no merit to Stanko’s arguments, and the Court concludes that he

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10

failed to exhaust his administrative remedies because he filed the instant action before

his appeal had been disposed of by the Central Office. See 28 C.F.R. § 542.15(a).

Notwithstanding his failure to exhaust, and having reviewed the record in this

action, the Court observes that, if we were to reach the merits of Stanko’s petition, we

would have to deny it. The record establishes that Stanko was afforded each of the

due process protections set forth in Wolff v. McDonnell, 418 U.S. 539, 567 (1974) that

are required where an inmate faces the disallowance of good conduct time. (See Rec.

Doc. No. 4-2 at 59, Notice of Discipline Hearing; Rec. Doc. No. 4-2 at 62, DHO

Report.) Further, it is evident from a review of the DHO Report that the DHO’s

findings were supported by “some evidence” inasmuch as Stanko admitted his guilt on

the record and provided no documentary evidence or witnesses in his defense. See

Superintendent v. Hill, 472 U.S. 445, 456-57 (1985) (requiring DHO’s decision to be

supported by “some evidence” on the record); Young v. Kann, 926 F.2d 1396, 1402-03

(3d Cir. 1991) (applying Hill standard to federal prisoner due process challenges to

prison disciplinary proceedings). Finally, the Court concludes that the sanctions

imposed (disallowance of good conduct time, disciplinary segregation, and

disciplinary transfer) were in line with BOP policy regarding sanctions available for

200-level offenses. (See 28 C.F.R. § 541.13, Tables 3 and 4). As such, these penalties

do not “[impose] atypical and significant hardship on [Stanko] in relation to the

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11

ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484-85 (1995). 

III. Conclusion

For the foregoing reasons, the petition for writ of habeas corpus (Rec. Doc. No. 

1) will be dismissed. 

 s/ James F. McClure, Jr. 

 JAMES F. McCLURE, JR.

United States District Judge

Case 4:09-cv-02421-JFM-SF Document 22 Filed 04/19/10 Page 11 of 12
12

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RUDY STANKO, :

:

Petitioner :

: CIVIL NO. 4:09-CV-2421

:

v. : (Judge McClure)

:

WARDEN DAVID EBBERT, :

:

Respondent :

O R D E R

April 19, 2010

IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus (Rec. Doc. No. 1) is DISMISSED.

2. All pending motions are DENIED as moot.

3. The Clerk of Court is directed to CLOSE this case.

 s/ James F. McClure, Jr. 

 JAMES F. McCLURE, JR.

United States District Judge

Case 4:09-cv-02421-JFM-SF Document 22 Filed 04/19/10 Page 12 of 12