United States District Court, D. Colorado
ORDER OF DISMISSAL
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. 2381156, 2451284, 2454283, 2454005, and 2440623 because in each disciplinary proceeding 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 all of the claims in each of the five incident reports at issue. Respondent asserts that Applicant did not file any administrative remedies or appeals regarding IR Nos. 2451284, 2454283, 2454005, and 2440623. See Prelim. Resp., ECF No. 10, at 3. Respondent further asserts that Applicant raised only the mental evaluation claim in his BP-10 appeal of IR No. 2381156 and failed to assert a denial of mental evaluation in his BP-11 appeal to the Central Office. Id.
Applicant asserts in his Reply that he properly exhausted his administrative remedies in IR No. 2381156 because he reincorporated the arguments from his BP-10 appeal by stating in the BP-11 appeal to the Central Office that "rights were violated as stated in my regional appeal, " and the Central Office fully addressed his mental health claim in the response to the BP-11 appeal. Reply, ECF No. 13, at 2-3. Applicant further asserts in his Reply that prison staff never delivered the Disciplinary Hearing Officer (DHO) reports and refused to provide appeal forms before the reports were delivered to him in IR Nos. 2451284, 2454283, 2454005, and 2440623. Id. at 2. Finally, Applicant asserts that following the disciplinary hearings he waited fourteen days for the DHO reports so he could file an appeal. Id. at 6. Applicant further contends that after the fourteen days he asked Mr. Foster for BP-10 forms to appeal the four incident reports but Mr. Foster denied the forms and told Applicant that he could not appeal the disciplinary proceedings until he had received the DHO reports. Id. Applicant also contends that Mr. Foster denied his request for BP-8 forms, precluding his ability to challenge the delay in his receipt of the DHO reports, and told Applicant that DHO issues could only be addressed on a BP-10 form. Id. Finally, Applicant contends he waited several months for the DHO reports. Id.
On April 21, 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 DHO reports in IR Nos. 2451284, 2454283, 2454005, and 2440623 and to provide these reports to the Court. 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. Finally, Respondent 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 Applicant's inability to exhaust his administrative remedies. 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 on July 22, 2013, Applicant received DHO reports in IR Nos. 2451284, 2454283, and 2454005. See May 12, 2014 Resp., ECF No. 18, at 1-2. Respondent further asserts that in IR No. 2440623, the Unit Disciplinary Committee (UDC) sanctioned Applicant to a loss of commissary privileges for thirty days and did not refer the charges to the DHO for a hearing, see id., ECF No. 18 at 2, and Applicant was advised of the UDC decision on June 3, 2013, id., ECF No. 18-6 at 1. Respondent also states that Applicant was sanctioned with the loss of good conduct time only in IR Nos. 2454283 and 2454005. ECF No. 18 at 2.
Respondent attached a Declaration by Mr. Foster to the May 12 Response, in which Mr. Foster states that during the time Applicant was assigned to his case load he provided between 100-200 administrative remedy/appeal forms to Applicant. ECF No. 18-1 at 5. 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 an inmate to attach a copy of the DHO report to the appeal of a DHO matter. 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 appropriate forms without having possession of the report and the BP-10 and BP-11 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. Applicant further 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. Finally, Applicant contends that Mr. Foster's Declaration should be stricken because he did not sign the Declaration. Id. at 4.
Before discussing the failure to exhaust issues, the Court first notes that Applicant's perjury and invalid signature claims are egregious. Mr. Foster does not state in the Declaration that he delivered the DHO reports to Applicant and his s/ signature is proper. The perjury accusations against Mr. Foster and request that Mr. Foster's Declaration be stricken are examples of Applicant's voracity to engage in abusive litigation. The claims will be disregarded by the Court.
Second, based on the information provided by Respondent, and Applicant does not disagree, Applicant was not sanctioned with the loss of good conduct time in IR Nos. 2451284, 2440623, and 2381156.
Based on the Inmate Discipline Data that is maintained in the BOP's SENTRY database, IR No. 2381156 involved Applicant being insolent to staff and Applicant was sanctioned to fifteen days of disciplinary segregation and thirty days of loss of commissary. ECF No. 10-3 at 2. In IR. No. 2451284, Applicant was sanctioned with fifteen days of disciplinary segregation and a loss of phone privileges for thirty days for stating he would have slipped his restraints and killed an officer. ECF No. 10-3 at 2; ECF No. 18-3 at 2-3. Finally, in IR No. 2440623, Applicant misused medication by placing a handful of pills in his mouth and was sanctioned with a loss of commissary privileges for thirty days. ECF No. 10-3 at 3; ECF No. 18-6 at 1. Applicant does not deny in his Reply that the sanctions for IR Nos. 2381156, 2451284, or 2440623 included only a thirty-day loss of commissary or telephone privileges and in two proceedings disciplinary segregation for fifteen days.
Because Applicant's sanctions in IR Nos. 2381156, 2451284, or 2440623 did not include the loss of good conduct time and did not affect the length of Applicant's sentence, his ...