United States District Court, D. Colorado
ORDER OF DISMISSAL AND TO SHOW CAUSE
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Jeremy Pinson, is a prisoner in the custody of the United States Bureau of Prisons (BOP) incarcerated at ADX in Florence, Colorado. Applicant initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Action. Applicant has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Applicant asserts that he is a mentally ill inmate and that the BOP failed to conduct competency evaluations to determine his competency and responsibility with respect to thirty-seven convictions for disciplinary violations.
Applicant states on Page Four of the Application that he has not filed a prior action in federal court in which he raised or could have raised any of his claims. A review of PACER (Public Access to Court Electronic Records) discloses that Applicant has filed at least twenty-three § 2241 actions prior to this one. See ECF No. 7. at App. A. Fourteen of the disciplinary actions were at issue in prior § 2241 actions, and the claims asserted by Applicant regarding these reports either were decided on the merits or are pending in a district court or on direct appeal. Id. at B.
On March 18, 2013, the Court dismissed claims relating to fourteen of the disciplinary convictions asserted in this case because Applicant had the opportunity to raise his claims for failure to conduct a mental competency evaluation either in previous § 2241 actions or in pending § 2241 actions in which the particular disciplinary convictions were challenged. ECF No. 11. The dismissed claims involved the disciplinary actions identified in the following Incident Reports:
(13) 1642331; and
Respondent was directed to file a Preliminary Response regarding the remaining disciplinary convictions to address the affirmative defense of exhaustion of administrative remedies. Respondent filed the Preliminary Response on May 2, 2013, and Applicant filed a Reply on May 28, 2013.
Respondent asserts that Applicant's claims concerning nineteen of the remaining twenty-three incident reports should be dismissed because Applicant failed to complete the final step of administrative exhaustion, Resp., ECF No. 23, at 1; three should be dismissed because Applicant failed to raise the mental health evaluation claim which is the basis of this action, id.; and one should be dismissed as time-barred. Id.
Applicant asserts in his Reply that he appealed IR Nos. 1916477, 1944592, 2060959, and 1627833 at all levels. Reply, ECF No. 24, at 1. Applicant further asserts that he was unable to exhaust the remaining disciplinary convictions until August 30, 2011, because his legal papers had been taken and he did not have the Disciplinary Hearing Officer (DHO) reports. Id. Applicant also asserts that, due to a BOP error, the "appeal was not processed until November 19, 2012"; the appeal was rejected on December 18, 2012; but the rejection was not delivered to him for twenty-two days, beyond the time to resubmit, and BOP staff would not provide to him the forms necessary to pursue the appeals. Id. at 1-2.
Applicant also asserts in the Reply that he did not have to raise the mental health evaluation issue separately on appeal in IR Nos. 1916477 and 2060959 because, without witnesses and a staff representative, he was not able to present a mental competency claim. Id. at 2. Applicant further argues that his attempts to appeal were thwarted by the BOP's untimely delivery of instructions to resubmit and by the prison staff's refusal to provide administrative remedy forms, rendering the process "unavailable." Applicant further asserts that the BOP incorrectly instructed him on how to appeal by telling him that he must first appeal to the warden. Finally, Applicant asserts he is mentally ill, incompetent, and not responsible and, as a result, he could not be expected to properly exhaust without staff representation.
Exhaustion of administrative remedies is a prerequisite to federal habeas corpus relief pursuant to 28 U.S.C. § 2241. See Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010); Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). The exhaustion requirement is satisfied through proper use of the available administrative procedures. See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (discussing exhaustion of administrative remedies in the context of 42 U.S.C. § 1997e(a)). A "narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile." Garza, 596 F.3d at 1203. Furthermore, the exhaustion requirement may be excused where the deficiency in exhaustion is caused by prison officials' acts of preventing, thwarting, or hindering prisoner's efforts. See Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (applying Prison Litigation and Reform Act (PLRA), 42 U.S.C. § 1997e(a)). A prisoner, however, may not exhaust "administrative remedies by, in essence, failing to employ them." Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002).
The BOP administrative remedy procedure is available to federal prisoners, including the Applicant. See 28 C.F.R. §§ 542.10-542.19. The administrative remedy procedure allows "an inmate to seek formal review of an issue relating to any aspect of his/her own confinement." 28 C.F.R. § 542.10(a). Generally, a federal prisoner exhausts administrative remedies by attempting to resolve the matter informally and then completing all three formal steps by filing administrative remedy requests with institution staff and then appealing to the regional and national levels. See 28 C.F.R. §§ 542.13-542.15.
Where a determination is made by a DHO, the inmate may skip the initial appeal to the warden and appeal the DHO's decision directly to the Regional Director. 28 C.F.R. § 542.14(d)(2). The step after the Regional Director is ...