Jebe v. Kastner
ORDER Of Dismissal. ORDERED that the habeas corpus application (ECF No. 16 ) is denied, and the action is dismissed without prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is FURTHER ORDERED that any pending motions 26 are denied as moot. By Judge Lewis T. Babcock on 1/23/13.(mjgsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02112-BNB
QUINN MCKENZIE JEBE,
PAUL KASTNER, Warden, FTC Oklahoma,
ORDER OF DISMISSAL
Applicant, Quinn McKenzie Jebe, is a prisoner in the custody of the United States
Bureau of Prisons (BOP) who currently is incarcerated at the Federal Transfer Center in
Oklahoma City, Oklahoma. Mr. Jebe filed pro se an Application for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241(ECF No. 16).
On November 8, 2012, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 19) directing Respondent to file a preliminary response limited to addressing the
affirmative defense of exhaustion of administrative remedies if Respondent intended to
raise that defense in this action. On November 29, 2012, Respondent filed a
preliminary response (ECF No. 24) arguing that this action should be dismissed for
failure to exhaust administrative remedies. On December 26, 2012, Mr. Jebe filed a
reply (ECF No. 28); and on January 10, 2013, Respondent filed a surreply and
supplement (ECF No. 30) to the preliminary response.
The Court must construe liberally the filings of Mr. Jebe because he 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 deny the application and dismiss the action.
Mr. Jebe challenges the calculation of his sentence. He claims he has
exhausted administrative remedies. ECF No. 16, attachment 1 at 10. Respondent
argues that, contrary to Mr. Jebe’s assertions that he exhausted administrative
remedies, his claims should be dismissed for failure to do so.
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. §
The BOP administrative remedy procedure is available to federal prisoners such
as Mr. Jebe. 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.
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.
If an inmate fails to comply with the procedural requirements of the administrative
remedy process, a request may be rejected at any stage of the process. 28 C.F.R. §
542.17(a). When a submission is rejected, the inmate is provided with a written notice
as to the reason for rejection, and if the defect is correctable, a reasonable extension of
time to correct the defect and resubmit the appeal. 28 C.F.R. § 542.17(b). If an appeal
is rejected and the inmate is not given an opportunity to correct the defect, the inmate
may appeal the rejection to the next appeal level. 28 C.F.R. § 542.17(c). The
coordinator at the next appeal level may affirm the rejection, direct it to be submitted at
the lower level, or accept it for filing. Id.
Respondent contends Mr. Jebe submitted a variety of administrative remedy
requests pursuant to the BOP’s Administrative Remedy Program alleging errors in the
calculation of his sentence. See ECF No. 24 at 3-4; ECF No. 24, ex. A (Declaration of
Christopher B. Synsvoll), attachment 2 (SENTRY database system information on Mr.
Jebe’s administrative remedy requests, July 20, 2012, to November 2, 2012) at 12-15.
He further contends that, despite filing these administrative remedy requests, Mr. Jebe
failed to exhaust administrative remedies for any of them. He specifically alleges that
Mr. Jebe’s administrative remedy requests have generated four different remedy
identification numbers that track all activity on each grievance in the SENTRY database
system. It is unclear which, if any, of the remedy requests are the basis of Mr. Jebe’s
habeas corpus application because the bulk of his grievances were rejected for
technical deficiencies, and the BOP does not retain grievances and responses in such
cases. Rather, the reason for rejection is noted in the BOP’s SENTRY database. See
ECF No. 24, ex. A at 6, ¶ 21. The only grievance submitted by Mr. Jebe that was not
rejected for technical deficiencies is remedy number 703528-F1, which requested jail
time credit. Id.; see also ECF No. 24 at 3, n.1; ECF No. 24, ex. A at 5-6, ¶ 18; ECF No.
24, ex. A, attachment 2 at 13. That request was denied. ECF No. 24, ex. A at 5-6, ¶
18. However, the appeal from the denial of remedy number 703528-F1 was rejected for
technical deficiencies. ECF No. 30 at 2, ¶¶ 5-6.
In any event, Mr. Jebe has not exhausted available remedies for any of the
remedy requests. Among other omissions, he has not submitted a BP-11, or Central
Office Appeal, for any of his grievances.
Mr. Jebe contends that exhaustion of BOP administrative remedies is futile. The
exhaustion requirement may be waived if exhaustion would be futile. See Garza v.
Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). However, the futility exception is narrow.
See id. "Futility exists where resort to [administrative] remedies is clearly useless."
DeMoss v. Matrix Absence Mgmt., Inc., 438 F. App'x 650, 653 (10th Cir. 2011).
Furthermore, "conclusory allegations that pursuit of administrative remedies would be
futile . . . are insufficient to excuse [a] failure to exhaust." See Mackey v. Ward, 128 F.
App'x 676, 677 (10th Cir. 2005). The Court is not persuaded by Mr. Jebe's conclusory
assertions that exhaustion of administrative remedies would be futile. The fact that Mr.
Jebe has had difficulty complying with the BOP administrative remedy procedure or that
he is approaching his release date of March 20, 2013, does not demonstrate that
exhaustion of administrative remedies would be futile. Mr. Jebe’s argument that there is
insufficient time to complete the administrative remedy process presupposes that he
could not obtain the relief he seeks at any level of the administrative remedy procedure.
However, Mr. Jebe fails to demonstrate that the relief he seeks is not available through
the administrative remedy procedure. Therefore, the Court does not agree that
exhaustion would be futile.
In conclusion, the Court finds that Mr. Jebe has failed to exhaust administrative
remedies for the claims he is raising in this action. Therefore, the 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 Mr. Jebe files a notice of appeal he also must pay the full $455.00
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.
Accordingly, it is
ORDERED that the habeas corpus application (ECF No. 16) 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. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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