Black v. Stancil

          RECOMMENDATION REGARDING DISMISSAL

          GORDON P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Applicant Rossahn Black's Petition for Issuance of a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 (ECF No. 1)^[1]. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 15)^[2].

         The Court must construe Applicant's filings liberally 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 act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         The Court has reviewed the filings to date. The Court has considered the case file and the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Petition be dismissed without prejudice for failure to exhaust available administrative remedies.

         I. Factual and Procedural Background

         Applicant is in the custody of the federal Bureau of Prisons in Florence, Colorado. On January 31, 2019, he filed pro se a Petition for Issuance of a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 (ECF No. 1). He paid the filing fee (ECF No. 4).

         In the Petition, Applicant argues that the Bureau of Prisons “is not crediting the petitioner in its computation of his sentence for the time he served from October 4^th, 2012 to January 17^th, 2017.” (ECF No. 1 at 3). He attached administrative grievances and responses to the Petition. (See ECF No. 1-1).

         As part of the preliminary consideration of the Petition and attachments, the Court directed Respondent to file a Preliminary Response limited to addressing the affirmative defense of exhaustion of administrative remedies. (ECF No. 5).

         Respondent filed a Preliminary Response arguing that Applicant failed to exhaust administrative remedies. (ECF No. 11). In summary, Respondent asserts “Applicant never filed a BP-10 or BP-11 appeal of his first formal complaint related to his habeas claim, Remedy ID 895089-F1 . . . And Applicant never filed a BP-11 appeal of Remedy ID 914556-R4, the Regional Director's latest adjudication of Applicant's second formal complaint related to his habeas claim.” (Id. at 7).

         Applicant filed a “Traverse of Government's Response.” (ECF No. 12). In the Traverse, Applicant states, “[w]hat the Government has strategically omitted from its response is that Mr. Black again filed another BP-11 at the National Level and received absolutely no response.” (Id. at 2). Applicant argues that additional attempts at exhaustion would be futile because the BOP's position is “crystal clear.” (Id.).

         Respondent filed a Reply in support of Preliminary Response. (ECF No. 13). In the Reply, Respondent addresses Applicant's allegation that he filed another BP-11. Respondent states that the database report of Applicant's administrative complaints does not show that Applicant filed a BP-11 appeal for the claim at issue here. (Id. at 2). Respondent argues that the futility exception does not apply. (Id. at 3).

         II. Exhaustion of Administrative Remedies

         Exhaustion of administrative remedies is a prerequisite to federal habeas corpus relief pursuant to 28 U.S.C. § 2241. See Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986). The exhaustion requirement is satisfied only through proper use of the available administrative procedures. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function properly without imposing some orderly structure on the course of its proceedings.” Id. at 90-91. Inmates may not exhaust their administrative remedies by failing to employ them. Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002).

         The BOP 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, an inmate first presents an issue of concern informally to prison staff in an attempt to resolve the issue. § 542.13. If an inmate is not able to resolve the issue informally he files a formal administrative remedy request, usually with the warden of the facility where he is incarcerated. § 542.14. If the inmate is not satisfied with the warden's response he may file an appeal with the appropriate regional director, and if he is not satisfied with the ...