United States District Court, E.D. Virginia, Norfolk Division
NATHAN R. PLATERO, Petitioner,
ERIC D. WILSON, Respondent.
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. KRASK, UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
STANDARD OF REVIEW
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.
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).
Platero has failed to exhaust his administrative remedies by
not filing a timely appeal.
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
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.
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.
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. §