BLD-068                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 18-1848
                                      ___________

                                     LENNY CAIN,
                                              Appellant

                                             v.

                         BUREAU OF PRISONS; WARDEN
                      ALLENWOOD FCI; DHO BITTENBENDER
                      ____________________________________

                    On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 3-17-cv-00105)
                   District Judge: Honorable William J. Nealon, Junior
                       ____________________________________

       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
                                  January 10, 2019

               Before: AMBRO, KRAUSE and PORTER, Circuit Judges

                            (Opinion filed: January 18, 2019)
                                       _________
                                        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.
       Lenny Cain appeals from the order of the United States District Court for the

Middle District of Pennsylvania rejecting his petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. § 2241. We will summarily affirm the District Court’s judgment.

       Because the District Court’s memorandum provides a detailed narrative of the

factual and procedural background, we present a summary only. Cain is an inmate of the

Federal Correctional Institution-Allenwood. In his habeas petition, he alleged due

process violations arising from prison disciplinary proceedings concerning two incident

reports. Both reports stem from the same incident but involve two different charges, two

different hearing officers, and separate administrative appeals. The first incident report,

dated July 26, 2015, described a fight that occurred that evening involving Cain and two

other inmates. The report stated that one of the other inmates used a swinging style

weapon during the fight, and the weapon (a lock inside a sock) was found in the other

inmate’s bed after a cell search. Cain was charged with Fighting. In August 2015, Cain

appeared before a disciplinary hearing officer (“DHO”) and was found guilty of Fighting.

He was sanctioned to loss of forty-one days of good conduct time and loss of telephone

and visiting privileges for eighteen months. The Bureau of Prisons (“BOP”) Regional

Office rejected Cain’s administrative appeal as untimely.1

       In September 2015, following investigation of the fight, Cain received a new

report, Incident Report No. 2761143, concerning the same July 26, 2015 fight. Cain was


1
 The Regional Office directed Cain to re-file if he could document reasons for the
untimeliness, but there is no record that Cain re-filed his appeal.
                                              2
charged with Possession of a Weapon. The report stated that the Institutional Camera

System was reviewed, and Cain was identified as using a swinging weapon--a lock in a

sock--to strike one of the other inmates in the fight. Cain appeared at a disciplinary

hearing, and DHO K. Bittenbender found Cain guilty of the new charge. The DHO

sanctioned Cain to forty-one days loss of good conduct time, sixty days of disciplinary

segregation, forfeiture of 100 days non-vested good conduct time, and eighteen months

loss of telephone and visiting privileges. Cain appealed to the Regional Director, who

partially granted the appeal. Noting Cain’s challenge to the timing of the new incident

report and the sanctions imposed, and citing questions concerning the disciplinary

process, the Regional Director remanded the action for further review and rehearing.

       Cain appeared for the remand rehearing on February 24, 2016. The DHO

sustained the original sanctions. On Cain’s appeal, the Regional Director again

remanded, noting the absence of documentation that Cain was given a fresh opportunity

to call witnesses. The Regional Director also noted the DHO’s failure to address the

concerns from the prior remand relating to the delay concerning the new Possession of a

Weapon charge, when both incident reports related to the same fight and relied on the

same video evidence. The Regional Director issued remand instructions concerning the

rewriting of the incident report and concerning a new DHO hearing.

       In April 2016, Incident Report No. 2761143 was rewritten to note that review of

the video during the course of investigation revealed that both Cain and another inmate

used swinging type weapons during the fight. On June 29, 2016, Cain appeared before
                                             3
the DHO for a new hearing on the rewritten incident report. The DHO again sustained

the original sanctions. Cain appealed to the Regional Director. On August 16, 2016, the

Regional Director denied Cain’s appeal, concluding that the DHO reasonably determined

that Cain had committed the prohibited act, that Cain’s due process arguments were

without merit, and that the sanctions imposed were not disproportionate to his

misconduct. The Regional Director advised Cain of the thirty-day period to appeal to the

BOP Central Office General Counsel. Cain did not file an appeal of the Regional

Director’s August 16, 2016 decision to the General Counsel.

       In January 2017, Cain filed his § 2241 habeas petition, alleging the inadequacy of

the administrative remedy for challenging DHO sanctions. He also challenged the

constitutionality of DHO Bittenbender’s actions concerning the rehearing process and in

imposing sanctions. Cain sought to have the incident reports expunged and his good

conduct time restored. The Respondents responded to the habeas petition, arguing that

the petition should be dismissed because Cain failed to exhaust his administrative

remedies. Cain filed a reply. District Court dismissed the petition, holding that Cain had

failed to exhaust his administrative remedies and that he had not shown that exhaustion

should be excused. This appeal followed.2 We have jurisdiction pursuant to 28 U.S.C.

§ 1291.


2
 Cain also filed a timely motion for reconsideration, which the District Court denied.
However, Cain did not file a separate notice of appeal or an amended notice of appeal
concerning the order denying his post-judgment motion. See Fed. R. App.
P. 4(a)(4)(B)(ii). The scope of this appeal is thus limited to the District Court’s dismissal
                                              4
       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 pursuing relief under § 2241. See Moscato v. Fed.

Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). Under the BOP’s administrative

remedy program, a federal prisoner found guilty at a DHO hearing may appeal the

decision to the Regional Director. 28 C.F.R. §§ 542.14(d)(2). Following the Regional

Director’s denial, an inmate has thirty days to file an appeal to the General Counsel,

which is the “final administrative appeal.” 28 C.F.R. § 542.15(a).

       Upon review of the record, we agree with the District Court that Cain failed to

exhaust his administrative remedies, because he did not seek General Counsel review of

the Regional Director’s August 16, 2016 decision. Because the time for filing a Central

Office appeal has expired, Cain’s habeas claims are procedurally defaulted. See

Moscato, 98 F.3d at 760. Ordinarily, Cain would have to meet the “cause and prejudice”

standard for failing to exhaust his administrative remedies to obtain consideration of his

§ 2241 habeas claims in federal court. See Moscato, 98 F.3d at 761-62. However, Cain

maintains in his argument on appeal (as he did in his argument to the District Court in

reply to the respondent) that no failure of administrative exhaustion occurred because he

did file an appeal, on June 7, 2016, to the General Counsel. See Appellant’s Argument in

Support of Appeal at 2. Cain argues that the BOP itself obstructed the administrative


of Cain’s § 2241 habeas petition.            5
process because it failed to respond to his June 7, 2016 appeal until February 24, 2017.

See id. Cain’s argument is without merit. The timing of the Central Office’s response to

Cain’s June 7, 2016 appeal has no bearing on the exhaustion of remedies concerning the

Regional Director’s later decision, on August 16, 2016, upholding the DHO’s finding of

guilt and imposition of sanctions, after a hearing held on June 29, 2016.

       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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