Taylor v. Taylor et al
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 9/21/16. (SAC )
2016 Sep-21 AM 11:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
VERSIAH M. TAYLOR,
WARDEN W.T. TAYLOR, et al.,
) Case Number: 1:15-cv-01198-KOB-JHE
On July 12, 2016, the magistrate judge entered a Report and Recommendation, (doc. 17),
recommending that the petition for writ of habeas corpus be dismissed with prejudice. He
recommended dismissal on grounds that the Petitioner, Versiah M. Taylor failed to exhaust his
administrative remedies, his petition was moot, and his claim was not cognizable as a habeas corpus
action. (Doc. 17 at 3-7). Taylor filed objections to the Report and Recommendation on August 25,
2016.1 (Doc. 20). The objections are twofold and charge that the Report and Recommendation failed
to consider (1) the “Special Circumstances” justifying Taylor’s delay in exhausting his administrative
remedies, and (2) the facts set forth in his Motion to Strike. (Doc. 20 at 1). The court has considered
these objections and made a de novo determination of the portions of the Report and
Recommendation to which they are made.
Taylor sought and was granted a thirty day extension of time within which to file
objections to the Report and Recommendation. (Doc. 18).
Taylor’s first objection to the Report and Recommendation is that it fails to consider “Special
Circumstances”2 justifying his delay in the exhaustion of administrative remedies. (Doc. 20 at 1).
Taylor does not set out the special circumstances to which he refers in his objection, but the court
has considered the materials he cites and discerns the objection as attributing his failure to exhaust
administrative remedies to interference by prison officials. In submissions before the court, Taylor
states he gave his BP-9 to a Special Housing Unit (SHU) officer on May 15, 2015, but, through no
fault of his own, it was not filed until June 12, 2015. (Doc. 17 at 3-5, see Doc. 17 at 4). He further
contends this “was atypical compared to how other inmates were treated and has caused significant
hardship with excessive litigation.” (Doc. 12 at 5).
Contrary to Taylor’s objection otherwise, the magistrate judge’s Report and Recommendation
considered his contention that his efforts to exhaust administrative remedies were frustrated by BOP
officials. (Doc. 17 at 4). But the magistrate judge nevertheless recommended dismissal because
Taylor’s contention contradicts the record, which reflects that he was still pursuing his administrative
remedies and had not yet completed that process at the time he filed his habeas petition. (See Doc.
17 at 3-5).
As set forth in the Report and Recommendation, Taylor commenced his habeas action on
July 16, 2015. (Doc. 1). Records submitted by him indicate, however, that his administrative appeal
Taylor cites to a Second Circuit decision for the proposition that special circumstances
may excuse a prisoner’s failure to exhaust his administrative remedies. (Doc. 12 at 5) (citing
Giano v. Goord, 380 F.3d 670 (2d Cir. 2004). The court notes that this decision was recently
abrogated. See Ross v. Blake, 136 S. Ct. 1850, 195 L. Ed. 2d 117 (2016). In Ross, the Supreme
Court considered the mandatory nature of the Prison Litigation Reform Act (“PLRA’) and held
that “. . .the PLRA’s text suggests no limits on an inmate’s obligation to exhaust—irrespective of
any ‘special circumstances.’ And that mandatory language means a court may not excuse a
failure to exhaust, even to take such circumstances into account.” Ross, 136 S.Ct. at 1857
(internal citations omitted).
process was ongoing and unexhausted at that time. (See Doc. 13 at 7-8). Indeed, his Regional
Administrative Appeal (BP-10) was received on August 4, 2015. (Doc. 13 at 8). Thus, even if
Taylor filed his BP-11 immediately after receiving the Regional Director’s response to his BP 10 –
sometime after August 4, 2015 – it would have been filed after he instituted this habeas action. And
the supplemental records that Taylor filed indicate just that – his Central Office Administrative
Remedy Appeal (BP-11) was filed on or about September 28, 2015, two months after he filed his
habeas petition. (Doc. 16 at 15).
This failure to exhaust administrative remedies, and complete the process he started, before
filing a habeas action, is distinct from the question of whether Taylor’s administrative remedies were
filed timely or in the usual course. Here, any interference that delayed Taylor in exhausting his
administrative remedies, such as the delayed filing of his BP-9, did not thwart him in his ability to
ultimately file those appeals, including the BP-10 and BP-11. In that sense, whether Taylor’s efforts
to exhaust his remedies were frustrated is of no moment – he was able to pursue those remedies,
delayed or not, and his failure to complete them before filing his habeas is detrimental to his petition.
Accordingly, Taylor’s objection is OVERRULED.
Taylor also objects to the Report and Recommendation on grounds it “fails to consider the
facts demonstrated in Plaintiff’s Motion to strike on p. 3 at ¶ 2, that the Affidavit submitted by LT.
Bowns supports false allegation that cannot be competently testified to if the court compares it to
service provider records.” (Doc. 20 at 1). The affidavit that Taylor references in his objection is
a declaration that the government submitted to establish the prison’s cell phone rules and the fact that
Taylor was temporarily assigned to the Special Housing Unit (SHU) during the investigation of a
suspected violation of that policy. (Doc. 10-2 at 2). Taylor believes the affidavit to be a sham.
(Doc. 12 at 3).
The court has reviewed Taylor’s motion to strike and the subject affidavit, but the facts that
Taylor objects to as not being considered by the magistrate judge are not evident. In the cited portion
of his motion to strike, Taylor concludes that the affidavit is a sham, non-specific, and submitted in
bad faith. (Doc. 12 at 3). But Taylor does not dispute that he was no longer assigned to the SHU
at the time he filed his petition, a fact established by the affidavit and relevant to the issue of
mootness. (Doc. 10-2 at 2). While Taylor concludes that the affidavit is a sham, he does not
challenge any facts pertinent to the dismissal of his habeas action.
The magistrate judge
recommended dismissal of the instant habeas petition because Taylor’s administrative remedies were
not exhausted, his claim was moot, and his claim was not cognizable in a habeas corpus action.
None of the allegations or facts demonstrated in Taylor’s submissions require a different conclusion.
Accordingly, the Petitioner’s objection is OVERRULED.
The court has considered the entire file, together with the report and recommendation, and
has reached an independent conclusion that the report and recommendation is due to be adopted and
approved. Accordingly, the court hereby adopts and approves the findings and recommendation of
the magistrate judge as the findings and conclusions of this court. The petition for writ of habeas
corpus is due to be DISMISSED. A separate Order will be entered.
DONE and ORDERED this 21st day of September, 2016.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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