Buhl v. Berkebile

Filing 16

ORDER to File Supplement to Preliminary Response, by Magistrate Judge Boyd N. Boland on 12/27/2012. (sks)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02953-BNB
LEROY BUHL,
Applicant,
v.
D. BERKEBILE, Warden,
Respondent.

ORDER TO FILE SUPPLEMENT TO PRELIMINARY RESPONSE

As part of the preliminary consideration of the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 filed on November 9, 2012, the Court ordered
Respondent to file a Preliminary Response limited to addressing the affirmative defense
of exhaustion of administrative remedies. On December 6, 2012, Respondent filed a
Preliminary Response and on December 17, 2012, Applicant filed a reply to the
Preliminary Response.
Respondent argues that the application should be dismissed for failure to
exhaust administrative remedies because Applicant has not filed an administrative
appeal from the prison disciplinary conviction he is challenging in the application.
However, Respondent does not address Applicant’s argument, raised initially in the
application, that he cannot file an appeal without attaching a copy of the disciplinary
hearing officer’s report and that he has not received a copy of the disciplinary hearing
officer’s report. Therefore, Respondent will be directed to file a supplement to the
Preliminary Response that addresses whether a prisoner can appeal a disciplinary

conviction without providing a copy of the disciplinary hearing officer’s report.
Respondent also should provide the Court with any documentary evidence that
demonstrates whether Applicant was provided a copy of the disciplinary hearing
officer’s report. Accordingly, it is
ORDERED that within twenty-one (21) days from the date of this Order
Respondent shall file a supplement to the Preliminary Response that complies with this
Order. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of any
supplement to the Preliminary Response Applicant may file a Reply to the
supplement, if he desires.
DATED December 27, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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