Bacote v. Berkebile

Filing 17

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/23/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01793-BNB
MICHAEL BACOTE,
Applicant,
v.
DAVID BERKEBILE,
Respondent.

ORDER OF DISMISSAL

Applicant, Michael Bacote, is a prisoner in the custody of the United States
Bureau of Prisons (BOP), who currently is incarcerated at the Untied States Penitentiary
in Florence, Colorado. Mr. Bacote, acting pro se, initiated this action by filing an
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. He has been
granted leave to proceed pursuant to 28 U.S.C. § 1915.
On August 1, 2013, Magistrate Judge Boyd N. Boland entered an order 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 August 19, 2013, Respondent filed a Preliminary Response arguing that
this action should be dismissed for failure to exhaust administrative remedies. Mr.
Bacote replied to the Response on August 30, 2013.
The Court must construe liberally Mr. Bacote’s filings 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.
In the Application, Mr. Bacote identifies forty-three incident reports, (Incident No.
2429382 is listed twice), in which he claims BOP staff failed to perform a mental
evaluation to determine his competency or culpability as they are required to do under
28 C.F.R. § 541.6. Mr. Bacote further asserts that he was denied an opportunity in
each of the associated disciplinary proceedings to call witnesses, to present
documentary evidence, in violation of 28 C.F.R. § 541.8, and to have a staff
representative assist him in presenting a defense and an appeal because he is
incompetent to do either. Mr. Bacote contends that each report was false, misleading,
improper and retaliatory. He seeks expungement of all reports.
Respondent argues that the Application should be dismissed because Mr.
Bacote has failed to exhaust administrative remedies and that even if he suffers from a
mental illness he still must comply with exhaustion requirements. Mr. Bacote concedes
his failure to exhaust, but argues the exhaustion requirement should be excused
because he has provided evidence that he is mentally retarded and is not receiving
medication for his mental illness.
Exhaustion of administrative remedies is a prerequisite to federal habeas corpus
relief pursuant to 28 U.S.C. § 2241. See Garza v. Davis, 596 F.3d 1198, 1203 (10th
Cir. 2010); Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). The

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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)). A “narrow exception to
the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is
futile.” Garza, 596 F.3d at 1203. Furthermore, the exhaustion requirement may be
excused where the deficiency in exhaustion is caused by prison officials’ acts of
preventing, thwarting, or hindering prisoner’s efforts. See Little v. Jones, 607 F.3d
1245, 1250 (10th Cir. 2010) (applying Prison Litigation and Reform Act (PLRA), 42
U.S.C. § 1997e(a)). A prisoner, however, may not exhaust “administrative remedies by,
in essence, failing to employ them.” Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th
Cir. 2002).
The BOP administrative remedy procedure is available to federal prisoners such
as Mr. Bacote. 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.
Where a determination is made by a Discipline Hearing Officer (“DHO”), the
inmate may skip the initial appeal to the warden and appeal the DHO’s decision directly

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to the Regional Director. 28 C.F.R. § 542.14(d)(2). As stated above, the step after the
Regional Director is a final appeal to the Central Office. 28 C.F.R. § 542.15(a).
The administrative remedy records submitted by Respondent demonstrate that
although Mr. Bacote did not challenge any of the disciplinary proceedings listed in the
Application, he has filed at least forty-seven requests for administrative remedies from
April 23, 2002, to July 31, 2013. Preliminary Resp., ECF NO. 14-3, Attach. 3 (SENTRY
Administrative Remedy Index). Mr. Bacote exhausted twenty of the forty-seven
requests by appealing to the national level, nineteen of which were exhausted between
2011 and 2013. Id. The Court also notes that only one of the requests for
administrative remedies, Remedy No. 649792-F1, challenges a disciplinary hearing. Id.
at 4. Although the Remedy Index does not indicate the incident report associated with
Remedy No. 649792, even if the incident report was identified, the issue raised in
Remedy No. 649792 is not one of the issues Mr. Bacote raises in this Application.
Furthermore, Mr. Bacote did not exhaust Remedy No. 649792.
The Court takes notice of Bacote v. Berkebile, No. 13-cv-02663-BNB (D. Colo.
Filed Sept. 30, 2013). In Case No. 13-cv-02663-BNB, Mr. Bacote raises the same
claims as he does in this case. He, however, has submitted a Chronological
Disciplinary Record in Case No. 13-cv-02663-BNB that includes all the disciplinary
incidents that have been filed against him since 1999. Case No. 13-cv-02663-BNB,
ECF No. 3 at 6-49. The Court has reviewed the Disciplinary Record and has found that
since 1999 Mr. Bacote has had 153 disciplinary incidents in which he was sanctioned.

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All but six of the forty-three incidents listed on Page Six of the Application in this case
are included in the Record. Not all of the incidents were subject to a loss of good
conduct time and about one third of the incidents have taken place over the past two
years. Even if the six not found should be included, all of the incidents took place
during the same time that Mr. Bacote was able to exhaust the nineteen administrative
remedies that involved issues other than disciplinary proceedings. The Court, therefore,
finds that, even if Mr. Bacote has a mental health issue and requires medication, there
is no evidence that the lack of medication or the mental health issue precluded him from
exhausting his administrative remedies with respect to each of the listed disciplinary
incidents.
To summarize, Mr. Bacote has not completed the BOP’s formal administrative
remedy program for any remedies related to the subject matter of the instant
application, and he has failed to demonstrate that the BOP hindered his efforts to
exhaust administrative remedies, or any attempt to exhaust would have been or is now
futile, so as to excuse the exhaustion requirement. Therefore, the instant action will be
dismissed without prejudice for failure to exhaust administrative remedies.
Finally, 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. Bacote 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
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ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 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 all pending motions are denied.
DATED at Denver, Colorado, this 23rd day of

October

BY THE COURT:

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

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, 2013.