Opinion
Civil Action No. 19-cv-00272-LTB-GPG
05-08-2019
ROSSAHN BLACK, Applicant, v. S.A. STANCIL, Warden, Respondent.
RECOMMENDATION REGARDING DISMISSAL
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). The matter has been referred to this Magistrate Judge for recommendation (ECF No. 15).
"(ECF No. ___)" is an example of the convention I use to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). I use this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
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 4th, 2012 to January 17th, 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 regional director's response he may file an appeal with the general counsel. § 542.15. An appeal to the general counsel is the final administrative appeal. Id.
"The burden [is] on the government to prove the affirmative defense of exhaustion." Acosta v. Daniels, 589 F. App'x 870, 873 (10th Cir. 2014) (unpublished) (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 . . . and [an applicant] should be afforded an opportunity to counter the exhaustion defense." Tuckel, 660 F.3d at 1254.
"A failure to pursue any level of review generally bars a federal court from considering a § 2241 application." Acosta, 589 F. App'x at 872. However, "where the prisoner proves that exhaustion would be futile, a failure to complete each step of the administrative review process will not necessarily preclude the prisoner's habeas petition." Id. Failure to exhaust may be excused in rare cases in which an applicant demonstrates that exhaustion would be futile, Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010), or that irreparable harm would otherwise result, Steck v. Chester, 393 F. App'x 558, 560 (10th Cir. 2010).
Applicant bears the burden of establishing that prison officials made an administrative remedy unavailable to him. See Tuckel, 660 F.3d at 1254 (applying PLRA's exhaustion requirement); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). A remedy is not available when prison officials hinder, thwart, or prevent an inmate's attempts to exhaust that remedy. Id. at 1252 (citing Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010)). The Court must ensure that "any defects in exhaustion [are] not procured from the action or inaction of prison officials." Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
Here, Respondent presents evidence in the form of a Declaration and administrative remedy report to show that Applicant did not file the required BP-11 appeal to the general counsel as required to complete the administrative review process. (See ECF No. 13-1 at 5). Applicant states only that he did, in fact, file the BP-11, but does not provide any substantiating information, such as when the appeal was filed. Applicant provided a copy of a Central Office Administrative Remedy Appeal form which he dated October 30, 2017, and is marked as case number 914556-AI. (ECF No. 1-1 at 7). Review of the remedy report shows that this general counsel-level appeal was submitted on November 6, 2017, but was rejected as procedurally deficient with instructions to "resubmit at regional level with memo." (ECF No. 13-1 at 18; ECF No. 11-1 at 7 para. 17). As noted above, compliance with procedural rules is required for administrative exhaustion. Woodford, 548 U.S. at 90-91 ("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.").
Weighing the evidence submitted by Respondent against Applicant's conclusory statement that he filed a BP-11 appeal, there is no substantiated indication in the record that Applicant filed a proper general counsel-level appeal. The Court finds that Respondent meets his burden of showing that Applicant failed to exhaust, and Applicant does not meet his burden of showing that he indeed exhausted, or that exhaustion otherwise is excused.
Exhaustion of administrative remedies for a § 2241 claim is required, unless administrative relief is "effectively foreclosed." Cantrall v. Chester, 454 F. App'x 679, 681 (10th Cir. 2012) (unpublished) (citation omitted). Applicant fails to carry his burden of showing that he completed the administrative exhaustion process by filing the required BP-11 appeal, thus the claim as alleged under § 2241 is unexhausted. Accordingly, the Court recommends that the Petition be denied and dismissed without prejudice. See Brown v. Wands, 463 F. App'x 806, 808 (10th Cir. 2012) (affirming dismissal without prejudice of § 2241 application for failure to exhaust administrative remedies). Applicant may re-file once he has completed administrative exhaustion.
Applicant's futility argument does not change this result. "Exhaustion serves important purposes which should not be disregarded lightly . . . The exhaustion of administrative procedures allows for the development of a factual record, allows for the application of agency expertise to the claims, and may allow the resolution of the claims without resort to the court." Chambers v. Chester, No. 10-3018-RDR, 2010 WL 572071, at *2 (D. Kan. Feb. 16, 2010) (citations omitted). Although Applicant states exhaustion would be futile because the BOP's position is "clear," he cannot know that unless he has exhausted the issue to the last level of administrative appeal, which he did not do. Applicant "may not successfully argue that he had exhausted his administrative remedies by, in essence, failing to employ them." Jernigan, 304 F.3d at 1033.
III. Recommendation
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the Petition for Issuance of a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 (ECF No. 1) be DENIED and DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.
DATED at Grand Junction, Colorado, this 8th day of May, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge