Pinson v. Davis
ORDER to Dismiss in Part and for Answer in Part. ORDERED that the action is dismissed in part with prejudice because Mr. Pinson's claims regarding IR No. 1634068 either are an abuse of the writ or fail to state a claim. ORDERED that Respondent shall file a return certifying the true cause of the detention of Mr. Pinson and show cause in writing on or before Monday, November 7, 2011, why the writ, as it pertains to the remaining claims challenging Incident Report Nos. 1610661, 1655656, and 1619674, should not be granted. ORDERED that Mr. Pinson shall remain in custody and within the jurisdiction of this Court until further order by Chief Judge Wiley Y. Daniel on 10/05/11. (jjh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-01334-WYD
ORDER TO DISMISS IN PART AND FOR ANSWER IN PART
Applicant Jeremy Pinson is a prisoner in the custody of the United States Bureau
of Prisons (BOP) and currently is incarcerated at the United States Penitentiary in
Florence, Colorado. Mr. Pinson, acting pro se, has filed an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241. In an order filed on June 8, 2011,
Magistrate Judge Boyd N. Boland directed Respondent to file a Preliminary Response
limited to addressing the affirmative defense of exhaustion of administrative remedies.
On June 28, 2011, Respondent filed a Preliminary Response. Mr. Pinson filed a Reply
on August 25, 2011.
I must construe the Application and the Reply liberally because Mr. Pinson 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, I cannot act as an advocate
for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the action will be dismissed in part and Respondent will be directed to address
the merits of the remaining claims.
Mr. Pinson asserts that his due process rights were violated in four separate
disciplinary proceedings. He contends that in Incident Report (IR) Nos. 1610661,
1655656, 1634068, and 1619674 he was not permitted to call witnesses, present
documentary evidence, or receive the aid of a staff representative. Mr. Pinson further
contends that there was no evidence to support the Disciplinary Hearing Officer’s
(DHO’s) finding and the DHO was unfair and partial and did not provide him with a
written statement of the findings and evidence. Mr. Pinson claims that, as a result of
each disciplinary proceeding, good conduct time was withheld and he was denied
privileges. He seeks expungement of the four incident reports and reversal of the
sanctions and resulting classification.
Mr. Pinson asserts that he has exhausted his administrative remedies.
Respondent agrees that Mr. Pinson has exhausted his challenges to IR No. 1655656,
but he argues that Mr. Pinson has not exhausted his remedies with respect to the
remaining incident reports.
First, I will address IR No. 1634068. Upon review of PACER (Public Access to
Court Electronic Records), I have found that Mr. Pinson challenged the results of IR No.
1634068 in a previous § 2241 habeas action. See Pinson v. Warden, FCC ColemanUSP-II, No. 09-cv-00175-WTH-GRJ (M.D. Fla. Feb. 26, 2010). The District Court for
the Middle District of Florida dismissed Case No. 09-cv-00175 on the merits and found
that (1) there was some evidence to support the findings; (2) the record contradicted Mr.
Pinson’s contention that he was denied his right to call witnesses; and (3) Mr. Pinson
did not have a right to obtain the evidence relied upon by the DHO prior to the
disciplinary hearing. See id. at Doc. No. 10. Although Mr. Pinson did not assert in Case
No. 09-cv-00175-WTH-GRJ that the DHO was unfair and partial, the only stated
reasons in this case that may be considered a basis for the DHO’s alleged unfairness
and partiality are that (1) the DHO denied Mr. Pinson his right to witnesses and to the
evidence relied upon by the DHO prior to the disciplinary hearing; and (2) there was a
lack of evidence to support the DHO’s finding. These are the same claims he raised in
Case No. 09-cv-00175.
Under 28 U.S.C. § 2244(a), a district court may dismiss a petition for writ of
habeas corpus brought pursuant to § 2241 if it appears that a federal court has
previously passed on the legality of the applicant's detention in a prior habeas
application and no new claim is raised. George v. Perrill, 62 F.3d 333, 334 (10th Cir.
1995). I, therefore, will dismiss Mr. Pinson’s right to witness claim, his documentary
evidence claim, and his lack of evidence claim, as they pertain to IR No. 1634068.
As for Mr. Pinson’s denial of staff representation claim, as it pertains to IR No.
1634068, “[a] prisoner does not have a right to have a staff representative assist him
during the disciplinary process.” Jordan v. Wiley, 2009 WL 1698509, *9 (D. Colo. June
17, 2009) (citing Wolff, 418 U.S. at 570)) aff’d, No. 09-1355 (10th Cir. Feb. 9, 2011) .
“Instead, due process requires that inmates be provided with the aid of a staff
representative only where the inmate is illiterate or ‘the complexity of the issue makes it
unlikely that the inmate will be able to collect and present the evidence necessary for an
adequate comprehension of the case.’ ” Id. (quoting Wolff, 418 U.S. at 570). Where
there is no constitutional right to staff assistance, there can be no due process violation
based on inadequate staff assistance. See e.g. Duarte v. Turner, 1995 WL 57187, *3
(7th Cir. Feb. 10, 1995).
Mr. Pinson does not assert that he is illiterate. His litigious history, including the
filing of nineteen § 2241 actions over the past two years, proves the contrary. Mr.
Pinson also is no stranger to the BOP disciplinary system. Between July 2, 2007, and
June 8, 2011, he was convicted of thirty-three infractions, which include an attempted
killing, five assaults, three attempted assaults, three fire settings, six possessions of a
weapon, an act of taking a hostage, a threat of bodily harm, two acts of destroying
property, six less serious assaults, two attempted less serious assaults, two refusals to
obey, and an act of insolence. See Doc. No. 12-2. Also the issues Mr. Pinson raises
regarding IR No. 1634068 are not complex.
I, therefore, find that any claims asserted regarding IR No. 1634068 in this action
either are an abuse of the writ or lack merit and are subject to dismissal.
I further find that Mr. Pinson’s repeated challenge of the same claim borders on
malicious prosecution. “[T]he right of access to the courts is neither absolute nor
unconditional, and there is no constitutional right of access to the courts to prosecute an
action that is frivolous or malicious.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir.
1989) (citations omitted) (per curiam) (quoted in Sieverding v. Colorado Bar Ass’n, 469
F.3d 1340, 1343 (10th Cir. 2006)). Federal courts have the inherent power under 28
U.S.C. § 1651(a) to regulate the activities of abusive litigants by entering orders that are
“necessary or appropriate in aid of [the Court’s] jurisdiction.” See Winslow v. Hunter (In
re Winslow), 17 F.3d 314, 315 (10th Cir. 1994) (per curiam); Tripati, 878 F.2d at 352.
“There is strong precedent establishing the inherent power of federal courts to regulate
the activities of abusive litigants by imposing carefully tailored restrictions under the
appropriate circumstances,” Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986), and
“where, as here, a party has engaged in a pattern of litigation activity which is manifestly
abusive, restrictions are appropriate,” In re Winslow, 17 F.3d at 315.
I may, in my discretion, place reasonable restrictions on any litigant who files
nonmeritorious actions for obviously malicious purposes and who generally abuses
judicial process. Phillips v. Carey, 638 F.2d 207, 209 (10th Cir. 1981). Mr. Pinson is
warned that future filings in this Court found to be malicious will subject him to filing
restrictions in addition to any 28 U.S.C. § 1915(g) restrictions that currently apply to him.
Second, I will address whether Mr. Pinson has exhausted his administrative
remedies in IR Nos. 1610661 and 1619674.
Mr. Pinson asserts that in IR No. 1610661 he filed a regional appeal on July 2,
2007, and a final appeal on September 29, 2007, but he did not receive a response to
the final appeal. Mr. Pinson further contends in his Reply that Respondent disputes this
argument without providing any details and relies on a declaration that is unsigned and
undated and not filed in this case. Mr. Pinson also asserts that in IR No. 1655656 he
filed a regional appeal on December 2, 2007, but did not receive a response to the
appeal. He further states that he construed the nonresponse as a denial and filed a
final appeal, which was not acknowledged or answered.
Respondent asserts, in a conclusory manner, relying on Exhibit A, Pages 9-13,
that, “[b]ased on the records reviewed by the Bureau of Prisons,” Mr. Pinson has failed
to exhaust his administrative remedies in IR Nos. 1610661 and 1619674 and does not
show special circumstances that would permit him to circumvent the review
requirements. See Preliminary Resp. at 3.
Upon review of the attachments to the Preliminary Response, I do not find an
attachment identified as Exhibit A. Furthermore, after reviewing all exhibits to the
Preliminary Response, I find nothing that clearly supports finding Mr. Pinson has failed
to exhaust either IR No. 1610661 or IR No. 1619674.
The burden of proof for the exhaustion of administrative remedies lies with a
defendant. See Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). The Tenth
Circuit in Roberts determined that although Jones v. Bock, 549 U.S. 199 (2007), did not
“spell out the proper burden of proof to sue in evaluating exhaustion claims, . . . circuits .
. . prior to Jones have all put the burden of proof on defendants . . . , Roberts, 484 F.3d
at 1240-41 (citations omitted), and “these holdings comport with the common-law
premise that the burden of proving all affirmative defenses rests on the defendant,” id.
at 1241 (citing Patterson v. New York, 432 U.S. 197, 202 (1977). The Tenth Circuit also
found the Jones’ reasoning helpful in Kilgore to determine that an applicant does not
bear a heightened burden of pleading timeliness and respondent must raise
untimeliness as an affirmative defense. See Kilgore v. Attorney General of Colo., 519
F.3d 1084, 1089 (2008). Given the common law basis for a respondent’s burden of
proof when raising an affirmative defense and the Tenth Circuit’s willingness to apply
the Jones’ reasoning to habeas actions, I find that Respondent bears the burden to
prove Mr. Pinson has not exhausted his administrative remedies, which Respondent
has failed to do. Respondent, therefore, will be directed to address the merits of Mr.
Pinson’s claims as they pertain to IR Nos. 1610661, 1655656, and 1619674.
Accordingly, it is
ORDERED that the action is dismissed in part with prejudice because Mr.
Pinson’s claims regarding IR No. 1634068 either are an abuse of the writ or fail to state
a claim. It is
FURTHER ORDERED that Respondent shall file a return certifying the true
cause of the detention of Mr. Pinson and show cause in writing on or before
Monday, November 7, 2011, why the writ, as it pertains to the remaining claims
challenging Incident Report Nos. 1610661, 1655656, and 1619674, should not be
granted. It is
FURTHER ORDERED that Mr. Pinson shall remain in custody and within the
jurisdiction of this Court until further order.
Dated: October 5, 2011
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge
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