Diaz-Fontanez v. Daniels

Filing 16

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/31/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00791-BNB
JOSE DIAZ-FONTANEZ,
Applicant,
v.
C. DANIELS, Warden,
Respondent.

ORDER OF DISMISSAL

Applicant, Jose Diaz-Fontanez, is a prisoner in the custody of the Federal Bureau
of Prisons (BOP) who currently is incarcerated at the United States Penitentiary, High
Security, in Florence, Colorado. He initiated the instant action by filing pro se on March
27, 2013, an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (ECF
No. 1). He has paid the $5.00 filing fee.
On April 2, 2013, Magistrate Judge Boyd N. Boland entered an order (ECF No. 6)
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 May 3, 2013, Respondent filed a preliminary response (ECF
No. 14). On May 30, 2013, Mr. Diaz-Fontanez filed a reply (ECF No. 15) to the
preliminary response.
The Court must construe liberally the filings of Mr. Diaz-Fontanez 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 dismiss the action.
Mr. Diaz-Fontanez was convicted in the United States District Court for the
District of Puerto Rico in United States v. Diaz-Fontanez, No. 97-cr-00071-PG. He
asserts a single claim that the BOP has failed to provide credit toward his sentence for
time he served between April 11, 1997, and June 14, 2002. ECF No. 1 at 4.
Respondent argues that the claim 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)). “Proper exhaustion demands compliance with an agency’s deadlines and
other critical procedural rules because he adjudicative system can function properly
without imposing some orderly structure on the course of its proceedings.” Id. at 90-91.
The BOP administrative remedy procedure is available to federal prisoners such
as Mr. Burgess. 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 (BP-8)
and then completing all three formal steps by filing an administrative remedy request
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with institution staff (BP-9) as well as regional and national appeals (BP-10 and BP-11).
See 28 C.F.R. §§ 542.13 - 542.15. Inmate appeals must be accompanied by copies of
their administrative filings and responses at lower levels. See 28 C.F.R. § 542.15(b)(1).
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.
Mr. Diaz-Fontanez has only partially exhausted BOP administrative remedies
regarding his asserted claim. Mr. Diaz-Fontanez filed a BP-9 regarding the claim on
March 22, 2013, only five days before he filed his habeas corpus application in this
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Court. ECF No. 14, ex. A at 6, ¶ 18. After the BP-9 was denied on April 4, 2013, Mr.
Diaz-Fontanez appealed by filing a BP-10 with the regional director on April 10, 2013.
ECF No. 14, ex. A at 6, ¶ 19. On April 24, 2013, the regional director denied the BP-10.
Id. Respondent contends Mr. Diaz-Fontanez has not yet appealed that denial by filing a
BP-11 with the general counsel. Id. An appeal to the general counsel is the final
administrative appeal. See C.F.R. § 542.15(a). ECF No. 14, ex. A at 6, ¶ 20. Mr. DiazFontanez disagrees and contends that on May 14, 2013, he filed a BP-11, which
currently is pending disposition. ECF No. 15 at 6. Because his BP-11 currently is
pending disposition with the Central Office, Mr. Diaz-Fontanez has not exhausted all
BOP administrative remedies before seeking federal court intervention through the
instant habeas corpus application. The application will be dismissed for failure to
exhaust.
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. Diaz-Fontanez 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. P. 24.
Accordingly, it is
ORDERED that habeas corpus application is denied and the action dismissed
without prejudice for failure to exhaust administrative remedies. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
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denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 31st day of May , 2013.
BY THE COURT:

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

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