Pinson v. Davis
ORDER of Dismissal. The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 is DENIED and the action is DISMISSED with prejudice. Leave to proceed in forma pauperis on appeal is DENIED. I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of appeal by Chief Judge Wiley Y. Daniel on 04/25/12. (jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-01334-WYD
ORDER OF DISMISSAL
Applicant Jeremy Pinson is in the custody of the United States Bureau of Prisons
(BOP) and currently is incarcerated at the United States Penitentiary in Florence,
Colorado. The matter before me is Applicant’s pro se Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241, Doc. No. 1, in which he challenges the results 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. Applicant
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. Applicant 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. Previously, I entered an order denying the claims
challenging IR No. 1634068 either as an abuse of the writ or for failure to state a claim.
Respondent was directed to show cause why relief should not be granted
regarding the remaining three disciplinary proceedings, which he did on November 14,
2011. Applicant filed a Reply on November 25, 2011. This matter now is ripe for
A. Standard of Review
In considering Applicant’s filings, I am mindful of his pro se status, and
accordingly, read his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21
(1972). However, such liberal construction is intended merely to overlook technical
formatting errors and other defects in his use of legal terminology and proper English.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not relieve
Applicant of the duty to comply with the various rules and procedures governing litigants
and counsel or the requirements of the substantive law, and in these regards, I will treat
Applicant according to the same standard as counsel licensed to practice law before the
bar of this Court. See McNeil v. U.S., 508 U.S. 106, 113 (1993); Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994).
B. Reconsideration of Exhaustion in IR Nos. 1610661 and 1619674
Respondent asks that I reconsider my finding in the October 5, 2011 Order that
Respondent failed to bear the burden of proof in asserting failure to exhaust
administrative remedies with respect to IR Nos. 1610661 and 1619674. Respondent
asserts that inadvertently in the Preliminary Response filed on June 28, 2011,
undersigned counsel failed to attach a declaration, which establishes Applicant did not
exhaust his administrative remedies in IR Nos. 1610661 and 1619674. Respondent
further asserts that the declaration is attached to the November 14, 2011 Response.
Respondent also contends that Applicant has filed this action four years
subsequent to the time he received the incident reports in IR Nos. 1610661 and
1619674. Moreover, Respondent asserts that Applicant is a prisoner with a record of
abusing the judicial process and should not be given a “free pass to litigate
unexhausted, stale claims.” See Resp., Doc. No. 25 at 8.
The declaration prepared by Theresa Montoya, see Resp. Ex. B, addresses
Applicant’s failure to exhaust his remedies in IR Nos. 1610661 and 1619674. Ms.
Montoya attests that she has reviewed the BOP’s SENTRY database, which tracks and
maintains the administrative remedy request of federal inmates. Declaration, Doc. No.
25-2 at 4. She further asserts that as a result she has reconstructed Applicant’s
exhaustion efforts with respect to IR Nos. 1610661 and 1619674. In doing so, Ms.
Montoya has determined that Applicant’s appeals to the regional office in IR Nos.
1610661 and 1619674 were granted and the prison was ordered to hold a rehearing in
each proceeding. Id. at 4-5. Applicant did appeal the regional office’s decision for a
rehearing, but did not appeal the results of the rehearing, where he was found guilty of a
lesser charge. Id.
In the Order to File Preliminary Response, the Court instructed Respondent to
address the affirmative defenses of timeliness and exhaustion of administrative
remedies. The Court also directed Respondent that if he does not intend to raise
exhaustion as an affirmative defense he must notify the Court. Although Respondent
did not argue an affirmative defense of timeliness, he did raise the issue of exhaustion,
but he failed to meet his burden of proof of exhaustion. Respondent now claims
inadvertent failure to provide Ms. Montoya’s declaration in support of the exhaustion
Based on Gray v. Netherland, 518 U.S. 152, 165-66 (1996), addressing a claim
“at some stage of federal proceedings,” obligates the defendant to raise a procedural
default as a defense or lose the right to assert the defense thereafter. The “best
procedure is to plead an affirmative defense in an answer or amended answer.” See
Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th Cir. 2006) (finding defendants were not
necessarily barred from raising a qualified immunity defense in their motion for
summary judgment). A waiver of the defense, however, should be based on whether
the “defense was raised at a pragmatically sufficient time and the [applicant] was
prejudiced in the ability to respond.” See Ahmad, 435 F.3d at 1202 (citing Pro v.
Donatucci, 81 F.3d 1283 n. 2 (3d Cir. 1996)). Furthermore, “[a]lthough failure to raise
an affirmative defense under Rule 8(c) in a party’s first responsive pleading generally
results in a waiver, where the matter is raised in the trial court in a manner that does not
result in unfair surprise technical failure to comply with Rule 8(c) is not fatal.” Id. (citing
Giles v. Gen. Elec. Co., 245 F.3d 474, 491-92 (5th Cir. 2001)).
Respondent’s exhaustion claim clearly was presented with supporting
documentation in the Response, and Applicant had sufficient time to address the
affirmative defense in his Reply to the Response. Respondent, therefore, is not barred
from raising the exhaustion affirmative defense in the Response with respect IR Nos.
1610661 and 1619674.
In the Declaration attached to the Reply, Applicant argues he is not required to
exhaust his disciplinary hearings more than once. Reply at 5. Furthermore, he
contends that the DHO did not hold a rehearing in either disciplinary proceeding but
only rewrote the findings without providing a copy of the revised DHO reports to him. Id.
The BOP administrative remedy procedure is available to federal prisoners like
Applicant. See 28 C.F.R. §§ 542.10–542.19. The 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, a federal prisoner exhausts
administrative remedies by attempting to resolve the matter informally and then
completing all three formal steps by filing an administrative remedy request with
institution staff as well as regional and national appeals. See 28 C.F.R. §§ 542.13–
542.15. The BOP administrative remedy procedure, however, provides that a DHO
appeal is submitted initially to the Regional Director for the region where the inmate
currently is located. See 28 U.S.C. § 542.14(d)(2).
The BOP administrative remedy program also provides specific deadlines for
submitting regional and national appeals. See 28 C.F.R. § 542.15(a). Extensions of
time may be granted to file either a grievance or an appeal if “the inmate demonstrates
a valid reason for delay.” 28 C.F.R. § 542.14(b).
Applicant is required to follow the procedures set forth in 28 C.F.R.
§§ 542.13–542.15 to exhaust his administrative remedies. Applicant may not exhaust
his “administrative remedies by, in essence, failing to employ them." See
Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002).
Respondent has submitted a copy of the BOP’s record for each of the formal
administrative remedy complaints that Applicant has filed since June 6, 2007. See
Resp., Doc. No. 25-3. I have reviewed this document thoroughly and do not find where
Applicant has used the administrative remedy procedure to obtain copies of DHO
reports for either of the rehearings.
Applicant’s general claim that he asked for copies of the DHO report in each of
the rehearings on more than one occasion from either the unit team does not justify a
finding that the exhaustion procedures should be waived. Applicant has indicated
conceded in another case before me that he is well acquainted with BOP policies,
regulations, and procedures, including the administrative remedy process. See Pinson
v. Davis, No. 11-cv-00608-WYD, Doc. No. 15 at 6 (D. Colo. Jan. 13, 2012). Just as I
found in Case No. 11-cv-00608, Applicant does not assert in this case that he attempted
to file an appeal, was denied the ability to appeal because he did not provide the DHO
report on appeal, and then sought copies of the report for the incident report rehearings
but was denied his request. Id. at Doc. No. 19, p. 5.
I further find Applicant’s double exhaustion requirement argument lacks merit. If
indeed Applicant believed he was not required to exhaust his administrative remedies
with respect to the rehearing he should have filed a habeas action at the time he
exhausted his remedies in each original hearing. He did not.
Nonetheless, it is clear that at the rehearing Applicant was convicted of a less
serious offense and reduced sanctions were imposed. Applicant’s request for relief
includes an expungement of the incident reports and sanctions. To address the
expungement of the sanctions set forth in both IR. Nos. 1610661 and 1619674
Applicant must have exhausted the final results of the rehearing. He has not done so.
Applicant has failed to assert a valid reason for his delay in appealing the results
of the rehearings. See 28 C.F.R. § 542.14(b) (valid reasons include extended period intransit, physical incapability, and long informal resolution attempts, which are indicated
by an inmate and verified by staff). Applicant, therefore, has failed to file an appeal of
the rehearings in a timely manner and has procedurally defaulted the BOP
administrative review of the rehearings.
A review in a federal habeas action is unavailable unless an applicant
demonstrates cause and prejudice. See Pelts v. True, 132 (F.3d 43 (10th Cir. Dec. 17,
1997) (unpublished) (citing Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 761 (3rd
Cir. 1996); Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir. 1986); cf. Wolff v. United
States, 737 F.2d 877, 880 (10th Cir. 1984) (good cause for not advancing a particular
matter relied on in a federal collateral habeas corpus proceeding at trial and actual
prejudice would justify federal habeas relief)). Given Applicant’s propensity to file formal
administrative remedy requests, it is not reasonable that Applicant continued to only ask
his unit team and warden informally about the rehearing DHO reports for over three
years rather than seek a formal administrative remedy request for a copy of the reports.
He, therefore, does not state a basis for finding cause why he did not timely appeal the
results of each rehearing. The claims challenging IR. Nos. 1610661 and 1619674 will
be dismissed as procedurally defaulted and barred from federal habeas review.
C. Due Process in a Disciplinary Proceeding
As a federal prisoner, Applicant has a constitutionally protected liberty interest in
his earned, good conduct time. See Brown v. Smith, 828 F.2d 1493, 1494 (10th Cir.
1987). Therefore, he was entitled to due process at the disciplinary hearings in
question. However, “[p]rison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in such proceedings does
not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Rather, adequate due
process at a prison disciplinary hearing requires only that a prisoner be provided with
written notice of the charges against him no less than twenty-four hours in advance of
the disciplinary hearing, an opportunity to call witnesses and present documentary
evidence in his defense if doing so would not be unduly hazardous to institutional safety
or correctional goals, and a written statement by the factfinders of the reasons for the
decision and the evidence on which they relied. See id. at 563-66; Smith v. Maschner,
899 F.2d 940, 946 (10th Cir. 1990). There also must be some evidence to support a
disciplinary conviction. Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472
U.S. 445, 454 (1985); Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996).
“Ascertaining whether [the some evidence] standard is satisfied does not require
examination of the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence. Instead, the relevant question is whether there
is any evidence in the record that could support the conclusion reached by the
disciplinary board.” See Hill, 472 U.S. at 455-56; see also Mitchell, 80 F.3d at 1445
(citing Hill). The disciplinary decision will be upheld even if the evidence supporting the
decision is “meager.” Mitchell, 80 F.3d at 1445 (citing Hill, 472 U.S. at 457).
Constitutionally adequate due process at a prison disciplinary hearing does not
require that an applicant be informed of every detail of the charges against him so that
he can prepare what in his opinion is the best defense. It only requires that the
applicant be informed of the charges to enable him to marshal the facts and prepare a
defense. Wolff, 418 U.S. at 564.
D. Incident Report No. 1655656
Applicant asserts that he was denied witnesses, the aid of a staff representative,
and the ability to present documentary evidence in IR No. 1655656. Application at 3.
He further asserts there was no evidence to support the DHO finding and the DHO was
unfair and partial. Id. Applicant also contends that the DHO failed to provide him with a
written determination of the findings and evidence that he relied upon. Id.
Respondent asserts that
Pinson received Incident Report 1655656 on October 15, 2007.
Ex. D, Declaration of Carl Madake, ¶ 4. Pinson was charged with assault
and received notice of the charge on October 16, 2007. Id. A disciplinary
hearing was held on November 2, 2007. Id. Pinson did not request a staff
representative, present witnesses, or present evidence. Id. The DHO
(Melvin Dunlop) found that Pinson committed the lesser charge of
Assaulting Any Person (Minor Assault). Id. He was sanctioned with a loss
of 27 days of Good Conduct Time, 30 days Disciplinary Segregation and
one year loss of privileges and recommended for a disciplinary transfer.
Pinson appealed the decision, but it was upheld by the Regional
Office and Central Office. Id. at ¶ 5. Although Pinson claims he did not
receive a copy of the DHO report, he does not allege (nor could he) that
he was unable to exercise his administrative appeal rights, or bring this
action [or] claim a violation of due process.
Resp., Doc. No. 25 at 6-7.
In his Reply, Applicant asserts that after receiving IR No. 1655656 he was placed
naked in a cell on suicide watch. Reply at 7. He further asserts that his DHO hearing
was held at his cell door without witnesses, staff representation, and documentary
evidence. Reply at 7 and 15. He further contends that he has been diagnosed with
schizophrenia and in need of long-term psychiatric treatment, which the BOP will not
provide. Reply at 16.
I further note that IR No. 1655656, which Applicant does not deny that he
received, states as follows:
On October 15, 2007 at approximately 6:49 PM while attempting to
allow staff entry on C-2 range. [sic] I was summoned to cell 258 by a [sic]
inmate calling for assistance. When I looked through the observation
window this officer observed inmate Pinson, Jeremy Reg. No. 16267-064
with a homemade weapon striking inmate Zubia, Eleuterio, Reg. No.
15593-080 about his head and facial area. Inmate Zubia was lying on the
floor of the cell with a large amount of blood pooling around his head.
Inmate Zubia’s hands were tied from the back with a white piece of cloth
restricting his movement. Inmate Pinson was given a direct order to lay
on the floor which he complied. He was subdued by staff and placed in
hand restraints. Inmate Pinson was immediately escorted to and placed in
a [sic] outside recreation cell for staff safety and security of the unit.
Resp., Doc. No. 25-20 at 4.
Applicant’s claims regarding IR No. 1655656 will be dismissed for the following
1. Denial of Witnesses
First, I note that although Applicant fails to assert in the Application or the Reply
the basis for IR No. 1655656, or to deny he committed the offense, in his administrative
remedy appeal, which is attached to the Response, Doc. No. 25-21 at 1, he states that
the “cut on Zubia was consensual in Zubia’s conspiracy to file a tort claim,” and the
“assault was staged.”
Applicant’s denial of witness claim is conclusory and vague. He does not provide
specific information on what any witness would have stated at the hearing. See
Chesson v. Jaquez, 986 F.2d 363, 366 (10th Cir. 1993) (no due process violation found
when plaintiff failed to show how a testimony from a witness he was not allowed to call
would have affected the outcome of his case). Although prison officials must consider
an inmate’s request to call a witness on an individual basis, errors in denying witness
testimony are subject to a harmless error review. Howard v. U.S. Bureau of Prisons,
487 F.3d 808, 813 (10th Cir. 2007) (citations omitted).
Based on the above findings, the error is at best a harmless error. Even if
Applicant was referring to a statement by inmate Zubia in the administrative remedy
appeal, and was inferring that Zubia should have been called as a witness, it is highly
unlikely that inmate Zubia would incriminate himself by conceding he participated in a
staged attack. Furthermore, nothing Applicant states in his Application or Reply
provides sufficient basis for finding that the outcome of the disciplinary proceeding
would have been different if a statement by inmate Zubia would have been considered
by the DHO. The fact remains that Applicant attacked Zubia, whether the attack was
staged or not. I find no violation of Applicant’s due process by the alleged denial to call
2. Inability to Present Documentary Evidence
Applicant fails to assert what documentary evidence he was denied from
presenting. If Applicant is asserting that the documentary evidence would have been a
statement by Zubia for the reasons stated in Section No. 1 the claim lacks merit. I find
no violation of Applicant’s due process by the alleged inability to present documentary
3. Lack of Evidence.
Applicant’s lack of evidence claim also is without merit. I find no reason to doubt
the DHO findings. Nothing Applicant asserts supports a finding that the reporting officer
stood to gain anything by submitting untruthful statements. The reporting officer’s
statements, that he saw Applicant strike Zubia with a homemade weapon while his
hands were tied and he was laying in a pool of blood on the floor in Applicant and
Zubia’s cell, amount to direct evidence and easily satisfy the some evidence
requirement under Wolff. See Mitchell v. Howard, 419 F. App’x 810, 816 (10th Cir.
4. Denial of Staff Representation and DHO Report
First, “[a] prisoner does not have a general constitutional 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, 411 F. App’x
201 (10th Cir. 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,
No. 93-2427, 46 F.3d 1133, *3 (7th Cir. Feb. 10, 1995) (unpublished) (citing Wolff, 418
U.S. at 570).
There is no indication that the issues involving IR No. 1655656 were complex or
that Applicant is illiterate. Nonetheless, Applicant failed to assert in his administrative
remedy appeal that he was denied staff representation or a DHO report. See Resp.,
Doc. No. 25-21 at 1. His claims, therefore, will be dismissed as either lacking merit or
unexhausted or both.
5. Competency Evaluation
Applicant’s competency claims are belied by the DHO report. In the DHO report,
it is noted that Psychologist J. Zonno provided a memorandum, dated October 19,
2007, that Applicant was responsible for his actions at the time of the incident and he
was competent to participate in the discipline process. See Resp., Doc. No. 25-20 at 2.
Applicant does not deny the psychologist’s findings. Furthermore, the DHO stated in
the report that Applicant was offered the option to postpone the hearing so he may
marshal a defense, but he opted to proceed with the hearing. Id. Again, Applicant does
not deny this happened. To the extent he claims witnesses would have testified about
his mental illness, he fails to provide specific information on what any witness would
have stated at the hearing or on his behalf. Applicant’s competency claim lacks merit
and will be denied.
Based on the above findings, Applicant fails to assert a violation of his due
process rights in the IR No. 1655656 disciplinary hearing.
For the foregoing reasons, the Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 is DENIED and the action is DISMISSED with prejudice.
FURTHERMORE, leave to proceed in forma pauperis on appeal is DENIED. I
certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not taken in
good faith, and, therefore, in forma pauperis status is denied for the purpose of appeal.
See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of
appeal he must also pay the full $455 appellate filing fee or file a motion to proceed in
forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty
days in accordance with Fed. R. App. P. 24.
Dated: April 25, 2012.
BY THE COURT:
s/ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE
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