Hunter v. Wands

Filing 22

ORDER of Dismissal. ORDERED that the habeas corpus application is denied and the action is dismissed without prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 2/2/12. (lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02664-BNB
DARIAN L. HUNTER,
Applicant,
v.
J. WANDS, Warden, Federal Correctional Institution (F.C.I.), Florence,
Respondent.

ORDER OF DISMISSAL

Applicant, Darian L. Hunter, is a prisoner in the custody of the United States
Bureau of Prisons (“BOP”). He was incarcerated at the Federal Correctional Institution
in Florence, Colorado, when he initiated this action by filing pro se an application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. #1). According to a notice of
change of address Mr. Hunter filed on January 13, 2012, he has been released to a
community corrections facility.
On November 21, 2011, Magistrate Judge Boyd N. Boland ordered Respondent
to file a Preliminary Response limited to addressing the affirmative defense of
exhaustion of administrative remedies if Respondent intends to raise that defense in this
action. On December 14, 2011, Respondent filed a Preliminary Response (Doc. #16)
arguing that this action should be dismissed for failure to exhaust administrative
remedies. Mr. Hunter has not filed a reply to Respondent’s Preliminary Response
despite being given an opportunity to do so.

The Court must construe the application liberally because Mr. Hunter 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, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will dismiss the action.
Mr. Hunter asserts two claims for relief in the application. He first claims that he
has been denied a liberty interest because the BOP has failed to credit his sentence
with time he spent in custody following his arrest. Mr. Hunter specifically alleges that he
should receive credit against his sentence for the time period from March 23, 2010, until
August 3, 2010. Mr. Hunter maintains in his second claim that he has been denied due
process because he has been denied adequate time in a re-entry program. As relief
Mr. Hunter asks that his sentence be computed properly and that he be provided more
than three months in a halfway house.
As noted above, Respondent argues that this action should be dismissed for
failure to exhaust administrative remedies. Exhaustion of administrative remedies is a
prerequisite to federal habeas corpus relief pursuant to 28 U.S.C. § 2241. See Williams
v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). The exhaustion requirement
is satisfied through proper use of the available administrative procedures. See
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (discussing exhaustion of administrative
remedies in the context of 42 U.S.C. § 1997e(a)).
The BOP administrative remedy procedure is available to federal prisoners such
as Mr. Hunter. 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
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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.
An inmate has twenty days to appeal to the appropriate regional director and
thirty days to file a national appeal to the BOP Central Office after receiving a response
at the preceding level. “If the inmate does not receive a response within the time
allotted for reply, including extension, the inmate may consider the absence of a
response to be a denial at that level.” 28 C.F.R. § 542.18. “An inmate may not raise in
an Appeal issues not raised in the lower level filings.” 28 C.F.R. § 542.15(b)(2). An
inmate also “may not combine Appeals of separate lower level responses (different
case numbers) into a single Appeal.” Id.
Respondent contends, and Mr. Hunter concedes, that he has not exhausted
administrative remedies for either claim in this action. However, Mr. Hunter contends
that he has not exhausted administrative remedies because administrative remedies
“are not made available to prisoners in the segregated housing unit (SHU).” (Doc. #1 at
2.) He further contends in support of his first claim that “I have written (handwritten)
Inmate Request to Staff (cop-out) to Ms./Mrs. Heim, Mrs, Wersham in records
department over a month ago. We[’]re not provided with the appropriate forms to
exhaust administrative remedies in the Special Housing Unit (SHU).” (Id. at 3.) With
respect to his efforts to exhaust administrative remedies for his second claim, Mr.
Hunter contends that “I filed an Inmate to Staff Request and was provided a response.
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Then I was denied access to the administrative remedy forms by prison officials.” (Id.)
Mr. Hunter does not provide specific factual allegations regarding when he requested
the necessary forms to exhaust administrative remedies, what efforts he made to obtain
the necessary forms to exhaust administrative remedies, or who denied him the
necessary forms to exhaust administrative remedies.
The Court is not persuaded by Mr. Hunter’s vague and conclusory assertions that
he has been prevented from exhausting administrative remedies. The BOP
administrative remedy program “applies to all inmates in institutions operated by the
Bureau of Prisons.” 28 C.F.R. § 542.10(b). Furthermore, according to Respondent, Mr.
Hunter managed to file a formal administrative remedy request on August 16, 2011,
while he apparently was housed in the special housing unit because he complained in
that grievance that “access to administrative remedies in not easy in SHU.” (Doc. #16-1
at 4; Doc. #16-2 at 4.) The BOP responded to the formal administrative remedy request
on September 1, 2011, and Mr. Hunter failed to file an appeal. The documentation
submitted by Respondent also demonstrates that Mr. Hunter managed to utilize the
BOP administrative remedy program again in September and October 2011 (see Doc.
#16-2 at 4), even though he alleges in the application, which was filed on October 13,
2011, that he was being denied access to the BOP administrative remedy program.
Because Mr. Hunter was able to utilize the BOP administrative remedy program
during the same time period that he filed the instant action, his vague and conclusory
allegations that he was denied access to the necessary forms to exhaust administrative
remedies for the claims he is raising in this action are not sufficient to demonstrate that
prison officials prevented him from exhausting administrative remedies. Therefore, the
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instant action will be dismissed without prejudice for failure to exhaust administrative
remedies.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Applicant files a notice of appeal he also must 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. Accordingly, it is
ORDERED that the habeas corpus application is denied and the action is
dismissed without prejudice for failure to exhaust administrative remedies. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 2nd

day of

February

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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