Mabie v. Daniels

Filing 25

ORDER of Dismissal in Part and for Answer. Applicant's Motion for Sanction, ECF No. 19 , is construed as a Reply. The claims regarding Incident Report Nos. 2315657 and 2238883 are dismissed. Respondent show cause within twenty-one days from the date of this Order why the Application, with respect to the claims associated with Incident Report Nos. 2245782, 2242146, 2241658, 2240669, and 2239324, should not be granted. Within twenty-one days of Respondent's answer to the Order to Show Cause Applicant may file a reply. Applicant shall remain in custody until further order. By Judge Robert E. Blackburn on 10/24/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Robert E. Blackburn

Civil Action No. 13-cv-01489-REB
WILLIAM MABIE,
Applicant,
v.
CHARLES DANIELS, Warden,
Respondent.

ORDER OF DISMISSAL IN PART AND FOR ANSWER

Applicant, William Mabie, is a prisoner in the custody of the United States Bureau
of Prisons (BOP) and currently incarcerated at the United States Penitentiary in
Florence, Colorado. Applicant initiated this action by filing an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241. Pursuant to Magistrate Judge Boyd N.
Boland’s June 11, 2013 Order to Cure Deficiencies, Applicant submitted his claims on a
Court-approved form used in filing § 2241 actions.
After a review of the Application, Magistrate Judge Boland ordered 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 August 21, 2013, Respondent filed a Response that addresses the
seven disciplinary proceedings at issue and asserts that Applicant failed to exhaust his
administrative remedies with respect to two of the proceedings. On September 26,
2013, Applicant filed a pleading titled, “Motion for Sanction.” In the Motion, Applicant
challenges the information provided by Respondent’s counsel and by Kara Lundy in the

Preliminary Response. The Court, therefore, construes the Motion as a Reply to the
Response.
The Court must construe liberally the Application and Reply because Applicant 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
act as 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 in part with
respect to Incident Report Nos. 2315657 and 2238883 for failure to exhaust
administrative remedies. Otherwise, the Court will require the Respondent to show
cause why the Application should not be granted concerning the claims associated with
Incident Report Nos. 2245782, 2242146, 2241658, 2240669, and 2239324.
The pleading Applicant first filed with the Court (Petition for Restoration of Good
Time Due to Lack of Due Process) is not the model of clarity; neither is the Application
he filed in response to the Court’s Order to Cure Deficiencies. Given that Plaintiff has
had two opportunities to present his claims and they still lack clarity, the Court finds
directing Applicant to amend the Application would not be beneficial. The Court,
therefore, will rely on both the Petition and Application, as did Respondent, to determine
if Applicant has exhausted his administrative remedies.
In the Petition, Applicant attached one page of the Inmate Discipline Data
Chronological Disciplinary Log that identifies seven incident reports, including Incident
Report Nos. 2315657, 2245782, 2242146, 2241658, 2240669, 2239324, and 2238883,
which pertain to him. Pet. at 4. On the attachment, Applicant hand-wrote the
associated administrative remedy request number for each disciplinary proceeding and
stated the due process rights that were violated in each incident. Id. Applicant also

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indicated on Page Three of the Petition that he did not receive a twenty-four hour notice
in Incident Report No. 2242146. Id. at 3. The Court enumerates and characterizes
Applicant’s claims as follows:
1) Incident Report No. 2315657-Denial of Witnesses;
2) Incident Report No. 2245782-Denial of Witnesses;
3) Incident Report No. 2242146-Denial of Staff
Representative, Witnesses, and Twenty-Four Hour Notice;
4) Incident Report No. 2241658-Denial of Staff
Representative and Witnesses;
5) Incident Report No. 2240669-Denial of Staff
Representative and Witnesses;
6) Incident Report No. 2239324-No Witnesses; and
7) Incident Report No. 2238883-No Witnesses.
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 no 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 Applicant. See 28 C.F.R. §§ 542.10-19. The administrative remedy procedure
allows “an inmate to seek formal review of an issue relating to any aspect of his/her own
confinement.” Id. at § 542.10(a). Generally, a federal prisoner exhausts administrative
remedies by attempting to resolve the matter informally and then completing all three
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formal steps by filing an administrative remedy request with institution staff as well as
regional and national appeals. See id. at 28 C.F.R.
§§ 542.13-15. Initial appeals at the institution level, however, are excepted in prison
disciplinary proceedings; an inmate initially files an appeal of a DHO hearing to the
regional director before pursuing a national appeal. Id. at § 542.14(d)(2).
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. Id. at § 542.15. “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.” Id. at § 542.18.
In 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.
Id. at § 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. Id. at § 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. Id. at § 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 asserts that based on the BOP’s administrative remedy records,
Applicant has failed to exhaust administrative remedies for the claims he presents.
Since July 1990, the BOP has maintained information related to administrative
complaints filed by inmates under the Bureau Administrative Remedy Program in
SENTRY, the BOP’s national database that tracks various information regarding an

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inmate’s confinement. See Preliminary Resp., ECF No. 14-1, Ex 1 (Decl. Kara Lundy)
at 4. Each formal complaint is logged into SENTRY at the receiving location and is
assigned an identification number that is given an extender at each level of review. Id.
at 5. According to SENTRY, Applicant failed to exhaust his administrative remedies
concerning Incident Report Nos. 2315657 and 2238883. Id. at 7. Respondent asserts
that (1) both administrative remedy requests challenging the two incident reports were
denied as procedurally defaulted; (2) Applicant has successfully exhausted other
administrative remedy requests; and (3) he fails to explain why the administrative
remedy requests regarding these incident reports were not exhausted. Preliminary
Resp. at 4-5.
Applicant does not disagree with Respondent’s findings. The only argument set
forth by Applicant in the Reply, regarding exhaustion of his administrative remedies, is
that Respondent purposely disregarded Incident Report No. 2242146 as being
exhausted. The Court finds that although Respondent failed to identify Incident Report
No. 2242146 as being exhausted on Page Five of the Preliminary Response,
Respondent did state on Page Three that Incident Report No. 2242146 is exhausted.
The Court, therefore, will dismiss Applicant’s claims with respect to Incident
Report Nos. 2315657 and 2238883.
Applicant also asserts in the Petition on Page Three and in the Application on
Page Two that his placement in the SMU violates his due process rights. However,
Applicant has no constitutional right to any particular classification. “The essence of
habeas corpus is an attack by a person in custody upon the legality of that custody, and
. . . the traditional function of the writ is to secure release from illegal custody.” Preiser
v. Rodriguez, 411 U.S. 475, 484 (1973). Thus, “a prisoner who challenges the fact or

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duration of his confinement and seeks immediate release or a shortened period of
confinement, must do so through an application for habeas corpus.” Palma-Salazar v.
Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). However, “a prisoner who challenges the
conditions of his confinement must do so through a civil rights action.” Id.
Applicant does not assert that his placement in SMU impacted the length of his
confinement in any way. Furthermore, even if Applicant is claiming that his placement
in SMU precludes his ability to earn good time credits, his claim lacks merit, unless he
has a liberty interest in earning the credits. See Kentucky Dep't of Corrections v.
Thompson, 490 U.S. 454, 460 (1989). A constitutionally-protected liberty interest may
arise from either the Due Process Clause itself, or from a state or federal law. See id.;
Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The Constitution does not itself afford a
convicted person any right to be released before the expiration of a valid sentence. See
Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7,
(1979). Neither does 18 U.S.C. § 3624(b) create a liberty interest in early release. The
statute provides that a federal prisoner may receive up to 54 days of credit toward the
service of the prisoner’s sentence, beyond the time served, “subject to determination by
[the BOP] that, during that year, the prisoner has displayed exemplary compliance with
institutional disciplinary regulations.” Because the statute allows the BOP discretion to
deny the requested relief, it does not create a constitutionally-recognized liberty interest.
See Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998) (construing 18 U.S.C. §
3621(e)(2)(B)) (citing Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). Applicant’s
classification claim, therefore, is improperly raised in this action and lacks merit.
Accordingly, it is
ORDERED that Applicant’s Motion for Sanction, ECF No. 19, is construed as a

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Reply. It is
FURTHER ORDERED that the claims regarding Incident Report Nos. 2315657
and 2238883 are dismissed. It is
FURTHER ORDERED that Respondent show cause within twenty-one days from
the date of this Order why the Application, with respect to the claims associated with
Incident Report Nos. 2245782, 2242146, 2241658, 2240669, and 2239324, should not
be granted. It is
FURTHER ORDERED that within twenty-one days of Respondent’s answer to
the Order to Show Cause Applicant may file a reply. It is
FURTHER ORDERED that Applicant shall remain in custody until further order.
DATED October 24, 2013, at Denver, Colorado.
BY THE COURT:

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