Aaron DeRoo v. Carol Holinka , 373 F. App'x 617 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 31, 2010*
Decided April 26, 2010
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09-3783
AARON DEROO, Appeal from the United States District
Petitioner-Appellant, Court for the Western District of Wisconsin.
v. No. 09-cv-247-bbc
CAROL HOLINKA, Barbara B. Crabb,
Respondent-Appellee. Judge.
ORDER
Federal prisoner Aaron Deroo petitioned for a writ of habeas corpus, see 28 U.S.C.
§ 2241, claiming that the Bureau of Prisons violated his right to due process during a series
of disciplinary cases by revoking good-time credits without giving him written statements
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).
No. 09-3783 Page 2
of reasons. But Deroo received the missing statements after he filed his petition in the
district court, and the BOP promised to restart the time for filing administrative appeals.
The district court thus concluded that it would be premature to review the underlying
disciplinary proceedings. We agree.
From February 2000 to June 2005, Deroo lost 201 days of good time over the course
of 8 disciplinary proceedings. The hearing officer prepared a written statement of reasons
for each disciplinary action, but Deroo never received copies, nor was he given notice of his
right to appeal the decisions. In 2008 he eventually requested the documents under the
Freedom of Information Act, 5 U.S.C. § 552. First, he sought “disciplinary hearing officer
report receipts,” but the BOP informed him that such records do not exist. Deroo then
demanded the disciplinary reports. This time he received a letter stating that a backlog of
FOIA requests would delay a response. When he inquired further, the BOP closed his file,
apparently under the mistaken belief that his request for the reports was duplicative of his
request for the nonexistent “receipts.” An agency appeal of that decision is pending.
When the FOIA process proved unavailing, Deroo filed administrative appeals of
these eight disciplinary actions without supplying the missing statements of reasons, as he
always had been free to do. See 28 C.F.R. § 542.19 (explaining process for taking
administrative appeal from adverse disciplinary decision where no statement of reasons
has been provided to inmate). When the BOP dismissed these appeals as untimely, Deroo
turned to federal court. The district court screened the case, concluded that Deroo had
asserted a possible due-process violation, and ordered the BOP to explain why the written
statements had not been provided.
That directive from the district court prompted the BOP to finally give Deroo the
missing documents and to admit that he never received them previously. The BOP also
promised to entertain administrative appeals from all 8 disciplinary decisions, and because
Deroo had been given the written reasons for all the cases at once, the BOP further agreed
to allow him additional time beyond the ordinary 20-day filing deadline, see 28 C.F.R.
§ 542.14(a). In light of these concessions, the BOP argued, Deroo’s petition for habeas
corpus had become moot because he received the only remedy available to him.
In his response Deroo acknowledged having received the records but persisted that
he nonetheless had suffered a violation of due process that the district court should remedy
by expunging the adverse disciplinary decisions from his record and reinstating his good-
time credits. Deroo argued that the BOP’s inordinate delay had effectively foreclosed relief
through the administrative process. In particular he pointed out that he had been
transferred to a different facility, that the warden at the time of the disciplinary actions had
retired, that any witnesses he would have called were no longer available, and that any
No. 09-3783 Page 3
physical evidence he would have presented had been destroyed. The district court
acknowledged these arguments but concluded that there was no way of knowing what, if
any, prejudice the delay had caused until Deroo pursued administrative appeals from the
underlying disciplinary decisions. The district court therefore concluded that it would be
premature to review the disciplinary rulings.
Following the district court’s decision, Deroo submitted new administrative appeals
of the disciplinary rulings and also appealed from the district court’s decision in this court.
Here, Deroo once again contends that, although he has the disciplinary records he sought,
the delay in receiving them constitutes a violation of due process that itself warrants
reinstating his good-time credits. His position is that the BOP already dismissed one set of
administrative appeals as untimely and that the district court should not have required him
to appeal yet again simply because the BOP finally gave him the statements of reasons.
Deroo further argues that he should not be required to pursue administrative appeals
because the BOP would not consider his claims on their merits. This concern, it turns out, is
not unfounded: Deroo filed his administrative appeals in November 2009, and the BOP
dismissed them as untimely one month later. See Deroo v. Holinka, No. 10-cv-00095, 2010
WL 1138423 (W.D. Wis. Mar. 18, 2010).
The BOP has yet to explain why on eight occasions over a five-year span its
employees failed to give Deroo a copy of the adverse decision as required by regulation.
See 28 C.F.R. § 541.17(g). Still, we cannot conclude that this persistent laxity establishes a
prejudicial violation of due process. Federal inmates do have a liberty interest in their
earned good-time credits, Jackson v. Carlson, 707 F.2d 943, 946-47 (7th Cir. 1983), and are
thus entitled to due process before those credits can be revoked, Wolff v. McDonnell, 418
U.S. 539, 557 (1974). In this context due process requires that prison officials give a prisoner
advance notice of the disciplinary proceedings, an opportunity to confront the charges and
present evidence before an impartial decisionmaker, and a written explanation of the
decision that is supported by “some evidence.” Superintendent, Mass. Corr. Inst., Walpole v.
Hill, 472 U.S. 445, 455 (1985); Wolff, 418 U.S. at 564. Here, the BOP remedied its violation of
Deroo’s right to due process by giving him the statements of reasons. See Wolff, 418 U.S. at
564; Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007). And because the BOP’s delay did not
extend Deroo’s prison term or prevent him from appealing without the statements of
reasons, Deroo has not established that he was prejudiced by the violation of due process.
Deroo nonetheless asks us to restore his lost good-time credits and expunge his
disciplinary record. But, as we have explained, Deroo has not been prejudiced by the delay,
so we could not restore his good-time credits unless the underlying decisions violated due
process. We would uphold those decisions as long as they were supported by “some
evidence,” Hill, 472 U.S. at 455; Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000), but we
No. 09-3783 Page 4
cannot yet apply this standard because Deroo had not exhausted his administrative
remedies when he began this lawsuit. Because we review a petition under § 2241 only after
administrative remedies have been exhausted, see Richmond v. Scibana, 387 F.3d 602, 604
(7th Cir. 2004), the district court properly required Deroo to pursue an administrative
appeal before entertaining petitions on the underlying disciplinary proceedings. Although
this conclusion is fatal to Deroo’s current § 2241 petition, we note that the BOP should not
have dismissed his latest round of administrative appeals as untimely. Having promised
Deroo an opportunity to complete the administrative appeal process, the BOP is estopped
from asserting untimeliness as its reason for refusing to consider the merits of his appeals.
Deroo has 20 days, beginning on the date that we issue our mandate in this case, to file his
administrative appeals once again. And if he complies, the BOP must consider his claims
on the merits. With that caveat in mind, the decision of the district court is A FFIRMED.