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Custard v. Oliver

United States District Court, D. Colorado

December 17, 2015

BOB ALLEN CUSTARD, Applicant,
v.
JOHN OLIVER, Warden, ADX Florence Colorado Supermax, Respondent.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, SENIOR JUDGE

Applicant, Bob Allen Custard, is a prisoner in the custody of the Federal Bureau of Prisons (BOP) and is incarcerated at the ADX facility in Florence, Colorado. Mr. Custard has filed pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) challenging a prison disciplinary conviction. He has paid the $5.00 filing fee.

On August 4, 2015, Magistrate Judge Gordon P. Gallagher entered an order (ECF No. 9) directing the Respondent to file a preliminary response to the Application asserting the affirmative defense of exhaustion of administrative remedies if the government intended to raise the defense. Respondent filed a preliminary response on September 18, 2015 (ECF No. 15) asserting the exhaustion defense. Mr. Custard filed a Reply on November 3, 2015 (ECF No. 19), along with a Motion for Sanctions (ECF No. 18). On November 9, 2015, Magistrate Judge Gallagher ordered Respondent to file a Supplement to Preliminary Response (ECF No. 20). Respondent filed a Supplemental Preliminary Response on November 12, 2015 (ECF No. 21).

The Court must construe liberally Mr. Custard'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, this action will be dismissed.

I. Factual Background and the Federal Application

On January 14, 2014, Mr. Custard received Incident Report No. 2528127 for “threatening another with bodily harm” (Code 203). (ECF No. 1 at 9). A hearing before a Disciplinary Hearing Officer (DHO) was held on March 20, 2014. (Id. at 10). The DHO concluded that Applicant was guilty of Conduct Which Disrupts (Code 299). (Id. at 11). Mr. Custard was sanctioned with, inter alia, the disallowance of 27 days of good conduct time. (Id. at 12). The DHO report was issued on April 24, 2014, and was delivered to Mr. Custard on April 28, 2014. (Id.).

Applicant filed a '2241 Application in this Court on June 8, 2015. He claims in the Application that his prison disciplinary proceeding failed to comport with the requirements of procedural due process because: he was denied a meaningful opportunity to prepare his defense; he was not permitted to call witnesses in his defense; the hearing officer was not impartial; and the disciplinary conviction was not supported by “some evidence.” (ECF No. 1 at 3-5). Mr. Custard asks the Court to expunge the disciplinary conviction and restore the 27 days of forfeited good conduct time, or, in the alternative, remand the matter for a new hearing that complies with due process. (Id. at 6).

Respondent argues in the Preliminary Response and the Supplemental Preliminary Response that Mr. Custard failed to properly exhaust available administrative remedies prior to filing his § 2241 Application. (ECF Nos. 15 and 21).

II. The Administrative 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). 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)); see also Quintana-Navarette v. Garcia, No. 09-1330, 361 F.App'x 951, 953 (10th Cir. Jan. 22, 2010) (unpublished). 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 requirement may be excused if prison officials prevent or hinder a prisoner's efforts to exhaust administrative remedies. See Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (addressing Prison Litigation Reform Act's exhaustion requirement).

The BOP’s administrative remedy procedure is set forth in 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.” § 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 administrative remedy request with institution staff as well as regional and national appeals. §§ 542.13 - 542.15.

If a determination by a DHO is at issue, the inmate may appeal the DHO's decision directly to the Regional Director. § 542.14 (d)(2). The appeal must be filed 20 calendar days following the inmate's receipt of the DHO report. §§ 542.14(a), (d)(2); § 542.15(a). Appeal from an adverse decision is to the General Counsel (Central Office). § 542.15(a). When the inmate demonstrates a valid reason for delay, these time limits may be extended. §§ 541.14(b); 542.15(a).

If an inmate fails to comply with the procedural requirements of the administrative remedy procedure, a request may be rejected at any stage of the process. § 542.17(a). When a submission is rejected, the inmate is provided with a written notice as to the reason for rejection, and if the defect is correctable, a reasonable extension of time to correct the defect and resubmit the appeal. § 542.17(b). If an appeal is rejected and the inmate is not given an opportunity to correct the defect, the inmate may appeal the rejection to the next appeal level. § 542.17(c). The coordinator at the next appeal level may affirm the rejection, direct it to be submitted at the lower level, or accept it for filing. Id.

“The burden [is] on the government to prove the affirmative defense of exhaustion, ” Acosta v. Daniels, No. 14-1193, 589 F.Appx. 870, 873 (10th Cir. Oct. 30, 2014) (citing Jones v. Bock, 549 U.S. 199 (2007)); see also Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) (citing Jones). “Once a defendant proves that [an applicant] failed to exhaust, however, the onus falls on the [applicant] to show that remedies were unavailable to him”. . ...


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