Opinion
Civil Action No. 11-cv-01965-BNB
10-13-2011
JEREMY PINSON, Applicant, v. BLAKE R. DAVIS, Respondent.
Jeremy Pinson Reg. No. 16267-064 Blake Davis - CERTIFIED USP Florence ADMax United States Attorney General - CERTIFIED Washington, D.C. 20530 United States Attorney District of Colorado DELIVERED ELECTRONICALLY
ORDER TO FILE PRELIMINARY RESPONSE
Applicant, Jeremy Pinson, is a prisoner in the custody of the United States Bureau of Prisons, who currently is incarcerated at the ADX in Florence, Colorado. Mr. Pinson initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Action. Mr. Pinson has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
As part of the preliminary consideration of the Application in this case and pursuant to Keck v. Hartley, 550 F. Supp. 2d 1272 (D. Colo. 2008), the Court has determined that a limited Preliminary Response is appropriate. Respondent is directed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts to file a Preliminary Response limited to addressing the affirmative defense of exhaustion of administrative remedies. If Respondent does not intend to raise this affirmative defense, Respondent must notify the Court of that decision in the Preliminary Response. Respondent may not file a dispositive motion as a Preliminary Response, or an Answer, or otherwise address the merits of the claims in response to this Order.
The Court notes that Applicant filed a previous § 2241 action in the United States District Court for the Northern District of Alabama, Eastern Division, in which he asserted that the Disciplinary Hearing Officer in Incident Reports (IR) Nos. 1826068 and 1870480, two of the IR's at issue in this case, failed to provide him with a written statement of the findings and evidence that was relied upon. See Pinson v. Rathman, No. 09-CV-02475-WMA-HGD (N.D. Ala. Mar. 29, 2011). The Northern District of Alabama found no evidence that Applicant received a copy of the DHO report. Id. at Doc. No. 23. Respondent was ordered to provide a copy of the DHO to Applicant and twenty days to file an "out-of-time" appeal. Id.
In support of the Preliminary Response, Respondent should attach as exhibits all relevant portions of the administrative record, including but not limited to copies of all documents demonstrating whether this action is filed in a timely manner and/or whether Applicant has exhausted administrative remedies.
Applicant may reply to the Preliminary Response and provide any information that might be relevant to the one-year limitation period under 28 U.S.C. § 2244(d) and/or the exhaustion of administrative remedies. Applicant also should include information relevant to equitable tolling, specifically as to whether he has pursued his claims diligently and whether some extraordinary circumstance prevented him from filing a timely 28 U.S.C. § 2241 action in this Court. Accordingly, it is
ORDERED that within twenty-one days from the date of this Order Respondent shall file a Preliminary Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the Preliminary Response Applicant may file a Reply, if he desires. It is
FURTHER ORDERED that if Respondent does not intend to raise the affirmative defenses of exhaustion of administrative remedies, Respondent must notify the Court of that decision in the Preliminary Response.
DATED October 13, 2011, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 11-cv-01965-BNB
Jeremy Pinson
Reg. No. 16267-064
Blake Davis - CERTIFIED
USP Florence ADMax
United States Attorney General - CERTIFIED
Washington, D.C. 20530
United States Attorney
District of Colorado
DELIVERED ELECTRONICALLY
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals, and the following forms to Blake Davis, to The United States Attorney General, and to the United States Attorney's Office: APPLICATION FOR A WRIT OF HABEAS CORPUS 7/29/11 on October 13, 2011.
GREGORY C. LANGHAM, CLERK
By: ______________________
Deputy Clerk