NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

:

CARLOS TORRES, :

: Civil Action No. 11-0226 (RBK)

Petitioner, :

:

v. : O P I N I O N

:

WARDEN DONNA ZICKEFOOSE, :

:

Respondent. :

________________________________:

APPEARANCES:

Carlos Torres, Pro Se

#56396-054

Federal Correctional Institution

East: P.O. Box 2000

Fort Dix, NJ 08640

John Andrew Ruymann

Office of the US Attorney

402 East State Street, Suite 430

Trenton, NJ 08608

Attorney for Respondent

KUGLER, District Judge

Petitioner Carlos Torres, a federal prisoner currently

confined at the Federal Correctional Institution, Fort Dix, New

Jersey, submitted a petition for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2241. Petitioner challenges a prison 1

 Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions. 

* * * 

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disciplinary finding that resulted in the loss of good conduct

time. In particular, Petitioner asks that the prohibited act

Code 108 violation be expunged. The named respondent is Donna

Zickefoose, Warden at FCI Fort Dix.

In lieu of an answer, Respondent filed a motion to dismiss,

which remains pending before this Court. For the following

reasons, the motion will be denied. Respondent will be ordered

to answer the petition.

BACKGROUND

Petitioner alleges that on April 15, 2009, he appeared

before the Disciplinary Hearing Officer (“DHO”) for a hearing

stemming from his possession of a cell phone and charger at FCI

Otisville. Petitioner argues that he did not have notice that

the possession of a cell phone was increased to a 100 level

prohibited act. Petitioner argues that such an increase violated

the Administrative Procedures Act, that Code 108 should be void

for vagueness, and that his Equal Protection rights were

violated. Attached to Petitioner’s complaint are various reports

that show that Petitioner was charged with Code 316 (being in an

unauthorized area) and 108 (possession of a hazardous tool). See

Incident Report, docket entry 1-1, at p. 2 of 73. Petitioner

(c) The writ of habeas corpus shall not extend to a

prisoner unless ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States .... 

2

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cites Neagle v Zickefoose, 09-2016 (NLH), for support for his

request to have his Code 108 charge reduced to a Code 305. See

Regional Administrative Remedy, docket entry 1-1, at p. 4 of 73.

Respondent argues that the case should be dismissed, because

Petitioner’s appeal of his DHO charge was untimely. On May 6,

2010, Petitioner filed his first appeal with the Regional Office. 

The appeal was rejected because the DHO report was not submitted. 

Petitioner attempted three more times to file an appeal, and each

time, his appeal was rejected because he did not attach a copy of

the DHO report. Neither the Petitioner nor Respondent have been

able to locate a copy of the DHO report.

However, Respondent argues that because appeals of DHO

decisions must be submitted to the Regional Director within

twenty days, and Petitioner waited over a year, that the appeal

was untimely. Further, Respondent contends that because

Petitioner waited over a year to file his appeal, that he did not

properly exhaust administrative remedies, and the petition must

be dismissed.

DISCUSSION

A. Standard of Review

United States Code Title 28, Section 2243 provides in

relevant part:

A court, justice or judge entertaining an application

for a writ of habeas corpus shall forthwith award the

writ or issue an order directing the respondent to show

cause why the writ should not be granted, unless it

3

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appears from the application that the applicant or

person detained is not entitled thereto.

The Court recognizes that a pro se pleading is held to less

stringent standards than more formal pleadings drafted by

attorneys. See Estelle v. Gamble, 429 U.S. 97, 106 (1976);

Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, a pro se

habeas petition should be construed liberally and with a measure

of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir.

1998); Lewis v. Attorney General, 878 F.2d 714, 721–22 (3d Cir.

1989). Because Petitioner is proceeding pro se in his

application for habeas relief, the Court will accord his petition

the liberal construction intended for pro se litigants.

B. Exhaustion of Administrative Remedies

Although 28 U.S.C. § 2241 contains no statutory exhaustion

requirement, a federal prisoner ordinarily may not bring a

petition for writ of habeas corpus under 28 U.S.C. § 2241,

challenging the execution of his sentence, until he has exhausted

all available administrative remedies. See, e.g., Callwood v. 2

 To exhaust administrative remedies before the Federal 2

Bureau of Prisons, a federal inmate seeking review of an aspect

of his confinement must first seek to resolve the dispute

informally. See 28 C.F.R. § 542.13. If the inmate does not

receive a favorable termination, he may submit a formal written

Administrative Remedy Request for response by the warden of the

facility. See 28 C.F.R. § 542.14. If the inmate is not satisfied

with the warden's response, he may appeal the warden's decision

to the Regional Director within 20 days of the date of the

decision. If he is not satisfied with the Regional Director's

response, he may submit an appeal of the Regional Director's

4

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Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v. United States

Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v.

Alldredge, 481 F.2d 303, 306 (3d Cir. 1973). The exhaustion

doctrine promotes a number of goals:

(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.

Goldberg v. Beeler, 82 F. Supp.2d 302, 309 (D.N.J.1999), aff'd,

248 F.3d 1130 (3d Cir. 2000). See also Moscato v. Federal Bureau

of Prisons, 98 F.3d 757, 761 (3d Cir. 1996). Nevertheless,

exhaustion of administrative remedies is not required where

exhaustion would not promote these goals. See, e.g., Gambino v.

Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required

where petitioner demonstrates futility); Lyons v. U.S. Marshals,

840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where

it “would be futile, if the actions of the agency clearly and

unambiguously violate statutory or constitutional rights, or if

the administrative procedure is clearly shown to be inadequate to

prevent irreparable harm”); Carling v. Peters, 2000 WL 1022959,

decision to the Central Office within 30 days of the date of the

decision. See C.F.R. § 542.15. If these responses are not

received by the inmate within the time allotted for reply, “the

inmate may consider the absence of a response to be a denial at

that level.” 28 C.F.R. § 542.18.

5

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*2 (E.D. Pa. 2000) (exhaustion not required where delay would

subject petitioner to “irreparable injury”).

Here, Respondent has presented nothing to this Court

demonstrating that Petitioner’s appeals were rejected as

untimely. Rather, Respondent argues that:

According to the record of petitioner’s administrative

remedies maintained by the Bureau, petitioner attempted

to file an appeal of the imposed discipline with the

Regional Office on May 6, 2010, more than one year

after the DHO hearing; the appeal was rejected due to

petitioner’s failure to submit a copy of the DHO

report; on or about June 21, 2010, petitioner re-filed

an appeal with the Regional Office; again the Regional

Office rejected the appeal due to petitioner’s failure

to supply the DHO report and for his failure to supply

copies of the continuation page; petitioner again

re-filed on July 6, 2010 and September 28, 2010; and

both of those re-filings were rejected due to

petitioner’s failure to attach a copy of the DHO

report. (Moran Dec., para. 5 and Ex. 2).

See Respondent’s Brief, docket entry 10-1, at p. 4 of 9. 

However, Respondent asks this Court to dismiss the petition as

unexhausted based on Petitioner’s failure to timely appeal the

DHO’s decision.

According to the Code of Federal Regulations, “[w]here the

inmate demonstrates a valid reason for delay, an extension in

filing time may be allowed.” 28 C.F.R. § 542.14(b). It is

unclear whether or not Petitioner would have been granted an

extension. There is no record before this Court that

demonstrates that his attempt to exhaust was deemed untimely. 

Rather, it appears that any attempt to exhaust his disciplinary

6

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charges would have been futile, as the disappearance of

Petitioner’s DHO report has prevented Petitioner’s appeal from

being considered.

Due to the lack of a sufficient record, this Court finds

that Respondent’s motion to dismiss must be denied.

CONCLUSION

For the reasons set forth above, Respondent’s motion will be

denied. Respondent will be ordered to answer the petition.

An appropriate order follows.

s/Robert B. Kugler 

ROBERT B. KUGLER

United States District Judge

Dated: March 7, 2012

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