United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND FOR SUPPLEMENTAL PRELIMINARY RESPONSE IN PART
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Jeremy Pinson, is a prisoner in the custody of the Federal Bureau of Prisons (BOP), who currently is incarcerated at ADX in Florence, Colorado. Applicant initiated this action by filing pro se 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.
In an order filed on February 19, 2014, Magistrate Judge Boyd N. Boland directed Respondent to file a Preliminary Response limited to addressing the affirmative defense of exhaustion of administrative remedies. Respondent filed a Response on March 12, 2014, and Applicant filed a Reply on April 7, 2014.
Applicant asserts that his due process rights were violated in the disciplinary proceedings associated with Incident Report (IR) Nos. 2451286, 2458043, 2451280, 2399367, and 2445224 because he was denied (1) a mental evaluation pursuant to 28 C.F.R. 541.6; (2) a staff representative to assist him due to his mental illness; (3) a hearing; and (4) an opportunity to present witnesses and documentary evidence before being found guilty. Applicant seeks expungement of these disciplinary convictions and restoration of privileges and good time.
Respondent asserts that Applicant has failed to exhaust his administrative remedies as to every claim in each of the five incident reports at issue. Prelim Resp., ECF No. 10, at 3. Respondent also asserts that Applicant did not fiIe any administrative remedies or appeals regarding IR Nos. 2458043 and 2445224, did not exhaust his remedies in IR Nos. 2451280 and 2451286 prior to filing this action, and did not exhaust his denial of a hearing and ability to present documentary evidence claims in IR No. 2399367. Id. at 3-6.
In the April 7 Reply, Applicant asserts that prison officials blocked his access to the administrative remedy procedure in IR Nos. 2458043 and 2445224. Apr. 7 Reply, ECF No. 13, at 2. Applicant contends that when he has access to the administrative remedy forms he uses them; and pursuant to Baldauf v. Garoutte, 137 F.App'x 137 (10th Cir. 2005), he may proceed to court when ADX officials refuse to provide forms. Id. Applicant further contends that Respondent may not rely on 42 U.S.C. § 1997e(a) for support that his challenge to IR Nos. 2451280 and 2451286 are unexhausted, because § 1997e does not apply to 28 U.S.C. § 2241. Id. Applicant concedes he filed this action nine days prior to the time the BOP had to respond to his central office appeal in IR Nos. 2451280 and 2451286, but he argues that such a fact does not mandate a dismissal in a habeas action. Id. Finally, Applicant asserts that, because he asserted denial of witnesses and staff representation claims in his central office appeal in IR No. 2399367, it is inferred that he also was raising the denial of a hearing and ability to present documentary evidence claims, and as a result these claims are exhausted. Id. at 3.
On April 23, 2014, Magistrate Judge Boland directed Respondent to submit further briefing regarding the allegations Applicant raised in his Reply. Specifically, Respondent was directed to state if and when Applicant received the Disciplinary Hearing Officer (DHO) reports in IR Nos. 2399367, 2458043, and 2445224 and to provide to the Court the DHO reports in these incident reports. Apr. 23 Order, ECF No. 15. Respondent also was directed to state if the BOP requires a prisoner to submit or provide a DHO report before being given a BP-10 form or being allowed to appeal the results of a disciplinary action. Id. Respondent further was directed to address Applicant's futility claim that his counselor, Mr. Foster, refused to provide him with a BP-10 and a BP-8 form resulting in his inability to exhaust his administrative remedies. Id. Respondent filed a Response on May 12, 2014, and Applicant replied to the Response on May 20, 2014.
Respondent asserts in the May 12 Response that Applicant received a DHO report in IR No. 2399367 on March 13, 2013, a DHO report in IR No. 2458043 on September 16, 2013, and a DHO report in IR No. 2445224 on August 19, 2013. May 12 Resp., ECF No. 18, at 1-2. Respondent also states that Applicant was sanctioned with the loss of good conduct time in each of these three disciplinary proceedings. Id. at 2. Respondent attached a Declaration by Mr. Foster, in which he states that during the time Applicant was assigned to his case load he provided 100-150 administrative remedy/appeal forms to Applicant. Id., ECF No. 18-1 at 4.
Finally, Respondent attached a Declaration by Harrell Watts, the BOP National Inmate Appeals Administrator. Mr. Watts states that he oversees the Bureau's Administrative Remedy Program and confirms that the BOP does not require that when an inmate files an appeal of a DHO matter he must attach a copy of the DHO report. Id., ECF No. 18-6 at 3. Mr. Watts further asserts that if the inmate includes sufficient information with which to identify the DHO matter he will be given BOP-10 and BOP-11 forms without having possession of the report and the forms will be accepted for filing. Id.
Applicant filed a Reply on May 20, 2014, to the May 12 Response. He claims that, contrary to Mr. Watts' Declaration, he had two disciplinary appeals, Exhibit Nos. 1 and 2, that were denied in part because he did not provide a DHO report. See Reply, ECF No. 20, at 1-2, 6, and 8. Applicant further claims that Exhibit No. 3 attached to the Reply shows an appeal is rejected even when the charges and date are provided and that Exhibit No. 4 shows the North Central Regional Office (NCRO) often rejects appeals and allows insufficient time to correct a deficiency. Id. at 2, 10, and 12. Applicant also claims that Mr. Foster never delivered DHO reports to him; but that Mr. Foster states in the Declaration that he had done so, which is stated under penalty of perjury. Id. at 3. Finally, Applicant contends that other inmates have had their DHO appeals rejected for not providing a DHO report and have witnessed that Mr. Foster denied Applicant BP-10 and BP-8 forms. Id.
Before discussing the failure to exhaust arguments, the Court notes that Applicant's perjury claim is egregious. Mr. Foster does not state in the Declaration that he delivered the DHO reports to Applicant. The perjury accusation against Mr. Foster is an example of Applicant's voracity to engage in abusive litigation and will be disregarded by the Court.
1. IR Nos. 2458043 and 2445224
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)).
The BOP administrative remedy procedure is available to federal prisoners such as 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 an ...