United States District Court, D. Colorado
KEITH E. PEER, Applicant,
DEBORAH DENHAM, Warden, Respondent.
ORDER DIRECTING RESPONDENT TO FILE SUPPLEMENT TO PRELIMINARY RESPONSE
GORDON P. GALLAGHER, Magistrate Judge.
Applicant, Keith E. Peer, is a prisoner in the custody of the Federal Bureau of Prisons (BOP) and is incarcerated at the Federal Correctional Institution in Englewood, Colorado. Mr. Peer has filed pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) challenging a disciplinary hearing officer (DHO) decision. Mr. Peer has paid the $5.00 filing fee.
On May 11, 2015, Magistrate Judge Gordon P. Gallagher entered an order (ECF No. 7) directing the Respondent to file a preliminary response to the Application asserting the affirmative defense of exhaustion of administrative remedies if the Respondent intended to raise the defense. Respondent filed a preliminary response on June 1, 2015 (ECF No. 12) asserting the exhaustion defense. Mr. Peer filed a reply on June 18, 2015. (ECF No. 15), along with a Motion for Summary Judgment (ECF No. 16).
The Court must construe liberally Mr. Peer's filings because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, Respondent will be directed to file a Supplement to Preliminary Response.
I. The Federal Application
Mr. Peer asserts in the § 2241 Application that he has been denied due process in connection with a November 30, 2012 incident report charging him with the prohibited act of "Introduction of a Narcotic." (ECF No. 1, at 3; No. 1-1, at 12). Applicant maintains that the alleged "narcotic" was actually a dietary supplement. (ECF No. 1, at 3). Following a hearing on February 20, 2013, the DHO determined that Applicant was guilty as charged, and sanctioned him with, inter alia, the forfeiture of 41 days of good time credits. (ECF No. 1-1, at 34-36).
Mr. Peer filed an appeal of the DHO's report with the North Central Regional Office on April 1, 2013. (ECF No. 1-1, at 3). The Regional Director denied his appeal on June 18, 2013. (ECF No. 1-1, at 2).
On September 27, 2013, Mr. Peer received documents from the North Central Regional Office in response to a Freedom of Information Act (FOIA) request he had submitted in March 2013. (ECF No. 1, at 13-15; No. 1-1, at 6). The documents included correspondence between FCI-Englewood administrators and the District Attorney's office in which the District Attorney stated, in a letter dated December 5, 2012, that since [the prohibited substance] is a dietary supplement, we decline [to prosecute." (ECF No. 1, at 6).
On October 12, 2013, Mr. Peer filed an appeal of the Regional Director's decision to the Central Office. (ECF No. 1-1, at 8). The Central Office responded on November 4, 2013, directing Applicant to submit verification as to why his appeal was untimely. (ECF No. 1-1, at 54). On November 30, 2013, Applicant wrote a letter to the Central Office explaining that his appeal was untimely because he was waiting to receive documents in response to his FOIA request. (ECF No. 1-1, at 14-16). The Central Office informed Applicant that his untimely appeal would not be accepted without staff verification. (ECF No. 1-1, at 60). Applicant states that his counselor thereafter refused to provide the requested staff verification. (ECF No. 1, at 6).
In July 2014, after Mr. Peer filed additional administrative remedy requests, prison staff learned that the substance confiscated from Applicant in 2012 was still at the facility and an executive assistant agreed to send the substance to an independent lab for testing. (ECF No. 1, at 7). On August 15, 2014, the Colorado Bureau of Investigation (CBI) issued a lab report stating that "Controlled substances were not detected" in the tan powder capsules. ( Id. at 7, 16). The DHO was informed of the test results, but no remedial action has been taken, despite Applicant's numerous inquiries. ( Id. at 7).
Mr. Peer asserts in the Application that his prison disciplinary conviction for Introduction of a Narcotic, and his attendant loss of good time credits, violates due process because he was innocent of the charged offense. For relief, he asks that the disciplinary conviction be expunged from his prison file.
Respondent argue in the Preliminary Response that the § 2241 Application should be dismissed because Mr. Peer did not exhaust available administrative remedies. Specifically, Respondents contend that Applicant failed to re-submit his Central Office appeal, with staff verification as to why the appeal was untimely. (ECF No. 12, at 5-6).
II. The Exhaustion Requirement
Exhaustion of available 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); see also United States v. Wilson, 503 U.S. 329, 335 (1992) ("Federal regulations have afforded prisoners administrative review of the computation of their credits, and prisoners have been able to seek judicial review of these computations after exhausting their administrative remedies" (citations omitted)."). 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 an applicant can demonstrate that exhaustion is futile." Garza, 596 F.3d at 1203. Further, the exhaustion ...