Opinion
CV-19-00421-TUC-RM (JR)
08-16-2022
Jeremy Pinson, Petitioner, v. Barbara Blanckensee, Respondent.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
Before the Court is Petitioner Jeremy Pinson's (“Petitioner” or “Pinson”) Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody (“Petition”). (Doc. 1.) Pursuant to Local Rule 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Jacqueline Rateau for a report and recommendation. (Doc. 5.) The Petition is fully briefed. (Doc. 9, 14.) As more fully set forth below, the Magistrate Judge recommends that the District Court, after an independent review of the record, deny the Petition without prejudice.
Petitioner is a transgender person and uses female pronouns. The Court will do the same.
I. FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise indicated, all factual references are taken from the exhibits attached to the Respondents' Response to Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 9).
Petitioner is incarcerated at the United States Penitentiary in Tucson, Arizona (“USP Tucson”) and serving a 252-month sentence for threats against the President, False Statement, and Threat to a Juror. (Doc. 9-1 at ¶¶ 1, 2.) Her projected release date is May 23, 2026. Id. at ¶ 4.
In Ground One, Petitioner alleges that her rights were violated during a discipline hearing in which she lost 27 days of Good Conduct Time (“GCT”). (Doc. 1 at 4.) In Ground Two, she alleges she is innocent of the fighting charge alleged in the incident report for which she lost her 27 days of GCT and that staff told her she was charged and placed in the SHU in retaliation for her lawsuits against USP Tucson staff. Id. at 5. She alleges the incident report violates her First Amendment rights. Id.
She seeks an order vacating the incident report, releasing her to general population, and restoring her GCT. Id. at 9. Petitioner claims that she exhausted her administrative remedies. Id. at 2, 4-5. Respondent argues that Petitioner failed to exhaust her administrative remedies and that her claims fail on the merits. (Doc. 9 at 7-14.) This Court finds that Petitioner failed to exhaust her administrative remedies and, on this basis, recommends denial of the Petition.
II. FACTS
a. The Disciplinary Infraction
Following a Special Investigative Services (“SIS”) investigation, which concluded Petitioner and another inmate engaged in an altercation, SIS Technician A. Cristinzio wrote incident report number 3253777, charging Petitioner with fighting with another person, in violation of Prohibited Act Code 201 - a High Severity Prohibited Act. (Doc. 9-1 at ¶ 3; Doc. 9-3 at 13.) SIS Technician Cristinzio signed the incident report on May 7, 2019, at 7:50 a.m. (Doc. 9-3 at 13.) On the same day, Lieutenant G. Merrell investigated the incident report. Id. at 15. Lieutenant Merrell advised Petitioner of her rights and noted that she made no comments during the investigation. Id. Lieutenant Merrell determined the incident report was supported and accurate and forwarded it to the Unit Discipline Committee (“Committee”). Id.
On May 8, 2019, the Committee convened to review the incident report. Id. at 11. Petitioner is recorded as making no comment. Id. The Committee determined the incident report should be forwarded to the Discipline Hearing Officer (“DHO”) because the matter involved sanctions that were greater than the Committee could impose. Id. On the same day, Petitioner received and signed for a Notice of Discipline Hearing Before the DHO and a form entitled “Inmate Rights at Disciplinary Hearing.” Id. at 9, 11. Petitioner requested a staff representative, but declined to call witnesses. Id. at 11. On May 21, 2019, a psychologist conducted an evaluation and determined Petitioner was competent to understand the disciplinary proceeding and responsible at the time of the act. Id. at 3, 6.
The discipline hearing on the incident report convened on May 22, 2019. Id. at 2. At the disciplinary hearing, Petitioner was advised of her rights and waived staff representation. Id. She also waived her right to call witnesses. Id. Petitioner is recorded as stating at the hearing: “This was not a fight, I raised my hands in front of my face to protect me, and unintentionally struck [RH].” (Doc. 9-3 at 2.)
After considering the evidence, the hearing officer found Petitioner committed Prohibited Act Code 299, “Conduct which disrupts or interferes with the security or orderly running of the institution or the Bureau of Prisons,” most like Prohibited Act Code 201, “Fighting with another person.” Id. at 3. See 28 C.F.R. § 541.3, Table 1. The hearing officer based the finding on the reporting officer's statement in the incident report, the supporting staff documentation, and Petitioner's statement. (Doc. 9-3 at 3.) Petitioner was sanctioned with a loss of 27 days of GCT and 90 days of visitation. Id.
b. The BOP Administrative Remedy Program
The Bureau of Prisons operates an Administrative Remedy Program, which is designed to allow an inmate to seek formal review of an issue relating to any aspect of his or her confinement. See 28 C.F.R. § 542.10, et seq. An inmate may use the Administrative Remedy Program to appeal a DHO hearing. See 28 C.F.R. § 542.14(d)(2). With respect to appeals from disciplinary hearings, an inmate is not required to seek informal resolution or to submit an initial request to the Warden. Instead, an inmate is to submit an appeal from a disciplinary hearing directly to the Regional Director, with subsequent, final appeal to the General Counsel. See 28 C.F.R. §§ 542.14(d)(2); 542.15(a). Appeal to the Office of General Counsel is the final administrative appeal in the BOP remedy process. See 28 C.F.R. § 542.15(a).
III. ADMINISTRATIVE EXHAUSTION
As a prudential matter, federal prisoners must exhaust their administrative remedies before bringing a habeas petition pursuant to § 2241. Pinson v. von Blanckensee, No. CV-19-00584-TUC-RM (JR), 2021 WL 848842, at *2 (D. Ariz. Feb. 10, 2021), report and recommendation adopted sub nom. Pinson v. Blanckensee, No. CV-19-00584-TUC-RM, 2021 WL 842141 (D. Ariz. Mar. 5, 2021), reconsideration denied, No. CV-19-00584-TUC-RM, 2021 WL 2439289 (D. Ariz. June 15, 2021), a nd affd sub nom. Pinson v. Von Blanckensee, No. 21-16138, 2022 WL 2256323 (9th Cir. June 23, 2022), and affdsub nom. Pinson v. von Blanckensee, No. 21-16138, 2022 WL 2256323 (9th Cir. June 23, 2022) (citing Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986)). “[T]he requirement of exhaustion of remedies will aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors in the course of administrative proceedings.” Pinson, 2021 WL 848842, at *2 (quoting Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983)).
Administrative exhaustion also protects an administrative agency's authority, discouraging disregard of its procedures and permitting it to correct its own errors. Pinson, 2021 WL 848842, at *2 (citing Woodford v. Ngo, 548 U.S. 81, 89 (2006); Ruviwat, 701 F.2d at 845). If a petitioner has not properly exhausted her claims, the district court, in its discretion, may either “excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court.” Pinson, 2021 WL 848842, at *2 (quoting Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990)).
Respondent provided a copy of Petitioner's administrative remedy history from April 19, 2019 to the January 30, 2019. (Doc. 9-3 at 1-15.) Petitioner's administrative history during the time period provided establishes that Petitioner was “advised of [her] right to appeal . . . under the Administrative Remedy Procedure.” Id. at 4. However, the record lacks any indication that Petitioner exhausted her administrative remedies despite her claim in the Petition that she did so. (Doc. 9-1 at ¶ 4; Doc. 9-3 at 2-15.)
Petitioner claims in her reply that she prepared an appeal on the BP-10 incident form, “attached the DHO report to it, placed it into a sealed envelope bearing [two] 2 first-class stamps addressed to the Regional Director on June 4, 2019 and handed it to M. Gurjevich for mailing.” (Doc. 14-1 at ¶ 3.) She claims that USP Tucson was on institutional lockdown status in “May/June 2019” and, during this time, “unit staff handled outgoing legal mail.” Id. at ¶ 4. Petitioner avers that on June 13, 2019, she was placed in SHU “under an SIS investigation” and her access to BP-11 forms to appeal “the non-response to [her] BP-10 was strictly through Counselor Daniel Diaz who did not bring [her] a single BP-11 form . . . between June 13, 2019 and Oct[ober] 23, 2019[.]” Id. at ¶ 5.
In light of the foregoing, there is no dispute that Petitioner failed to exhaust her administrative remedies. Indeed, Petitioner admits to failing to submit a BP-11 form. Instead, Petitioner claims that she should be excused from the exhaustion requirement because she was in the SHU and Counselor Diaz did not bring her “a single BP-11 form.” Id. Petitioner appears to be contending that prison officials have prevented her from appealing the adverse disciplinary decision.
Acts by prison officials preventing the exhaustion of administrative remedies may make administrative remedies effectively unavailable. See Nunez v. Duncan, 591 F.2d 1217, 1224-225 (9th Cir. 2010). Other than her own self-serving declaration, however, Petitioner has failed to provide any support for her argument that BOP officials have prevented her from appealing the instant adverse disciplinary decision. For instance, Petitioner fails to allege that she requested a BP-11 form from Counselor Diaz and that her request was denied. Additionally, Petitioner fails to allege that she attempted to submit an appeal on another document or form while in the SH U.She also fails to present any evidence that she attempted to submit an appeal after October 23, 2019, the date that Counselor Diaz was purportedly no longer Plaintiff's assigned counselor, and that her untimely appeal was denied.
Other district courts have recognized that the BOP's administrative remedy process expressly provides an inmate with an opportunity to request an extension of time to file an appeal where the inmate has demonstrated a valid reason for delay in appealing. See Cruz v. Fox, No. CV-14-05113-R (DTB), 2015 WL 858661, at *3 (C.D. Cal. Feb. 24, 2015) (citing 28 C.F.R. §§ 542.14(b), 542.15(a)). In Cruz, the district court found that the petitioner failed to exhaust his administrative remedies where there the only evidence was the petitioner's self-serving contention that prison officials prevented him from appealing the adverse disciplinary decision and there was no evidence that the petitioner attempted to request an extension of time to appeal the adverse disciplinary decision. 2015 WL 858661, at *3. See also Garcia v. Merendino, No. 1:21-CV-01325, 2021 WL 4255473, at *2 (W.D. La. Spt. 9, 2021) (refusing to excuse inmate's failure to exhaust administrative remedies finding “[t]he BOP's administrative remedy process expressly allows an inmate to request an extension of the filing time if the inmate demonstrates a valid reason for delay”). Here, Plaintiff has submitted only her self-serving declaration that Counselor Diaz did not provide her with a BP-11 form. As mentioned above, Petitioner has failed to allege that she requested such a form, that she made any attempt to appeal on any other form or document, or that she attempted to obtain an extension of time to file an appeal.
The Court finds the use of the administrative remedy process would have allowed the BOP to investigate Petitioner's claims, and, if warranted, correct the alleged errors. Since Petitioner has failed to complete the administrative review process, she has disallowed any of the BOP's formal administrative levels an opportunity to consider his claims. See Quinonez v. McGrew, 2016 WL 1728980, at *1 (9th Cir. Apr. 29, 2016) (affirming district court's dismissal of § 2241 petition for failure to exhaust administrative remedies where the petitioner "did not complete any level of the BOP's Administrative Remedy Program and there is no indication that his pursuit of those remedies would be futile"). Accordingly, the Court finds that dismissal without prejudice for failure to exhaust administrative remedies is appropriate.
IV. RECOMMENDATION
For the foregoing reasons, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, DENY the Petition (Doc. 1) without prejudice.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply shall be filed unless leave is granted by the district court.
If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-19-421-TUC-RM. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).