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Platero v. Wilson

United States District Court, E.D. Virginia, Norfolk Division

November 14, 2017

NATHAN R. PLATERO, Petitioner,
ERIC D. WILSON, Respondent.



         Petitioner, Nathan R. Platero ("Platero"), submitted a pro se petition, pursuant to 28 U.S.C. § 2241, on February 7, 2017, while incarcerated in Petersburg, Virginia. ECF No. 1. The respondent, Eric D. Wilson ("respondent"), filed a motion to dismiss for failure to state a claim, on May 16, 2017. ECF No. 4. For the reasons stated herein, the undersigned RECOMMENDS that respondent's motion be GRANTED.

         I. BACKGROUND

         Platero is currently serving a federal prison sentence of 120 months for the crime of abusive sexual contact, crime in Indian Country, in violation of 18 U.S.C. §§ 2244(a)(1) and 2246(3). ECF No. 5-1 at 2. On November 8, 2013, while incarcerated, Platero was charged with possession of a dangerous weapon, an altered scissor blade sharpened to a point and wrapped with tape. ECF No. 1 at 15. Platero claims that the weapon, which was found in Platero's cell in an unlocked locker that belonged to Platero's cellmate, did not belong to him but instead belonged to his cellmate. Id. On November 20, 2013, a discipline hearing officer ("DHO") conducted a disciplinary hearing and determined that sanctions against Platero were appropriate. Id. at 14, 16. The DHO sanctioned Platero by disallowing 41 days of good conduct time, and imposing 30 days disciplinary segregation and 4 months of lost commissary privileges. Id. at 16. Platero was notified of these sanctions in a written report delivered to him on November 27, 2013. Id. at 14-16.[1]

         The written report contained a section entitled "VIII. APPEAL RIGHTS." ECF No. 1 at 16. Platero was notified that he had the right to appeal the decision of the DHO within 20 calendar days under the administrative remedy procedure. Id. Platero appealed the DHO's decision to the western regional office on January 28, 2014. Id. at 3, 17. Platero's appeal, therefore, came 62 days after he received the DHO's report and 42 days after the appeal deadline. The regional office rejected Platero's appeal because it was untimely, on February 6, 2014. Id. at 3. On February 27, 2014, Platero appealed his decision to the central office in Washington, D.C. Id. at 3, 13. The central office likewise rejected Platero's appeal as untimely, on April 11, 2014. Id. at 3. On February 7, 2017, Platero filed a habeas action in this Court challenging the disciplinary sanctions. ECF No. 1. The respondent moved to dismiss for failure to state a claim on May 16, 2017. ECF No. 4. Platero has not responded to the motion, and the deadline for responding has passed.


         Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss claims upon which no relief can be granted. Fed.R.Civ.P. 12(b)(6); Sonnier v. Diamond Healthcare Corp., 114 F.Supp.3d 349, 354 (E.D. Va. 2015). In order to survive a motion to dismiss, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint must state a claim for relief that is "plausible on its face." Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Ascertaining whether a complaint states a plausible claim for relief is a "context-specific task" that requires the court to "draw on its judicial experience and common sense." Id. at 679.

         In ruling on a motion to dismiss pursuant to Rule 12(b)(6), a court may also consider "documents incorporated into the complaint by reference, " Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), "as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic." Philips v. Pitt Cnty. Mem'I Hosp., 572 F.3d 176, 180 (4th Cir. 2009).


         A. Platero has failed to exhaust his administrative remedies by not filing a timely appeal.

         Respondent argues that Platero's petition should be dismissed for failure to exhaust his administrative remedies, because his appeal of the DHO decision was untimely. Alternatively, respondent argues that Platero has failed to show that he is in custody in violation of the Constitution or laws of the United States, because evidence supports the DHO finding and the DHO proceedings complied with Platero's due process rights.

         Platero has not argued that he timely filed his appeal. Rather, Platero asks that his untimely submission be excused due to safety concerns under 28 C.F.R. § 542.14(b). ECF No. 1 at 17. Specifically, Platero states that he was afraid of reprisal from his cellmate if he appealed the disciplinary action, and thus he should be forgiven for not filing an appeal until after he was placed with a different cellmate. Id.

         The Bureau of Prison's ("BOP") administrative process is set forth in 28 C.F.R. § 542.10, et seq. First, inmates are encouraged to attempt to resolve their complaints informally through discussion. 28 C.F.R. § 542.13. Second, if the informal attempt is unsuccessful, inmates may appeal a DHO decision to the regional director within 20 days of being notified of the DHO decision. 28 C.F.R. §§ 542.13, 542.14(a), (d)(2). Third, the inmate may appeal the regional decision to the BOP's central office, in Washington, D.C. 28 C.F.R. § 542.15(a). The central office is the final level of BOP administrative review. Id.

         Section 542.14(b) of Title 28 of the Code of Federal Regulations provides a list of valid reasons for a filing delay. They include: "an extended period in-transit during which the inmate was separated from documents needed to prepare the Request or Appeal; an extended period of time during which the inmate was physically incapable of preparing a Request or Appeal; an unusually long period taken for informal resolution attempts; [or] indication by an inmate, verified by staff, that a response to the inmate's request for copies of dispositions requested under [28 C.F.R. § ...

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