Rodriguez-Crespo 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 10/3/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02086-BNB
JOSE RODRIGUEZ-CRESPO,
Applicant,
v.
C. DANIELS, Warden,
Respondent.

ORDER OF DISMISSAL

Applicant, Jose Rodriguez-Crespo, is a prisoner in the custody of the United
States Bureau of Prisons (BOP) incarcerated at the Florence Correctional Complex in
Florence, Colorado, at the time he initiated this action. Mr. Rodriguez-Crespo has filed
pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. #
1]. He has paid the $5.00 filing fee.
On August 14, 2013, Magistrate Judge Boyd N. Boland entered an order [Doc.
# 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 September 3, 2013, Respondent filed a preliminary
response [Doc. # 15] arguing that this action should be dismissed for failure to exhaust
administrative remedies. Mr. Rodriguez-Crespo was given an opportuity to file a reply,
but did not do so.
The Court must construe liberally Mr. Rodriguez-Crespo’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.
On February 1, 2007, Mr. Rodriguez-Crespo was sentenced in the United States
District Court for the District of Puerto Rico to a 96-month term of imprisonment, to be
followed by a three-year term of supervised release. [Doc. # 15-1, at 10]. In the
§ 2241 Application, Mr. Rodriguez-Crespo challenges a prison disciplinary conviction
that resulted in his forfeiture of 41 days of good time conduct credits and extended his
scheduled release date, via good conduct time, from August 16, 2013, to September 7,
2013. Applicant acknowledges that he did not exhaust administrative remedies for his
claims because “there is no time to do so,” [Doc. # 3, at 11], and, therefore argues that
exhaustion would be futile. Mr. Rodriguez-Crespo seeks expungement of the
disciplinary conviction, restoration of lost good time credits, and immediate release from
custody. [Id. at 8].
Respondent contends that Mr. Rodriguez-Crespo has failed to exhaust
administrative remedies, requiring dismissal of the Application.
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
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
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futile.” Garza, 596 F.3d at 1203.
The Court does not reach the issue of exhaustion, however, because a question
arises concerning the Court’s subject matter jurisdiction. The Federal Bureau of Prisons
inmate locator website, http://www.bop.gov/iloc2/LocateInmate.jsp, indicates that Mr.
Rodriguez-Crespo was released from prison on September 6, 2013. The Court
therefore must determine whether Applicant’s claims are moot.
Under Article III of the Constitution, federal courts may only adjudicate live
controversies. Alvarez v. Smith, 558 U.S. 87, 130 S.Ct. 576, 580 (2009). An “actual
controversy must be extant at all stages of review, not merely at the time the complaint
is filed.” Id. (internal quotation marks and citations omitted); see also McClendon v. City
of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996)(“Mootness is a threshold issue
because the existence of a live case or controversy is a constitutional prerequisite to
federal court jurisdiction.”). A case becomes moot if an event occurs during the
pendency of the action that “makes it impossible for the court to grant any effectual
relief whatever to a prevailing party.” Church of Scientology v. United States, 506 U.S.
9, 12 (1992) (“It has long been settled that a federal court has no authority to give
opinions upon moot questions or abstract propositions, or to declare principles or rules
of law which cannot affect the matter in issue in the case before it.”) (internal quotation
marks and citation omitted). See also Green v. Haskell County Bd. of Comm’rs, 568
F.3d 784, 794 (10th Cir. 2009) (“If, during the pendency of the case, circumstances
change such that [a party’s] legally cognizable interest in a case is extinguished, the
case is moot, and dismissal may be required.”) (internal quotation marks and citation
omitted).
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Once Mr. Rodriguez-Crespo was released from prison, he no longer had a
redressable injury arising from his prison disciplinary conviction and the forfeiture of
good time credits. See Spencer v. Kemna, 523 U.S. 1, 18 (1998) (stating that the
federal courts “are not in the business of pronouncing that past actions which have no
demonstrable continuing effect were right or wrong.”). As recognized by the Tenth
Circuit in Rhodes v. Judiscak, 676 F.3d 931 (10th Cir. 2012):
This court can no longer issue a judgment that has a
more-than-speculative chance of affecting [petitioner’s] rights. We cannot
modify his sentence now that it has been completed. And we are not
allowed to give him a judicial make-up call by shortening his supervised
release term. See [United States v.] Johnson, 529 U.S. [53,] 59 [(2000)].
. . . [T]he best this court could do for him would be to declare that he spent
longer in prison than he should have. It is merely speculative, however,
that such a declaration could redress [petitioner’s] injury.
676 F.3d at 925.
Applicant must now establish the existence of continuing “collateral
consequences” as a result of the prison disciplinary decision to demonstrate a live case
or controversy. Spencer, 523 U.S. at 7-8. However, the parties have not identified an
ongoing injury relating to Applicant’s claim, and the Court is not aware of any. As such,
Applicant fails to present a case or controversy for purposes of Article III and the § 2241
Application must be dismissed for lack of subject matter jurisdiction.
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. Rodriguez-Crespa 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
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Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24. Accordingly, it is
ORDERED that Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 [Doc. # 1], filed by Jose Rodriguez-Crespo, is denied, and the action is
dismissed without prejudice for lack of subject matter jurisdiction. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. Applicant may file a motion in the Tenth Circuit.
DATED at Denver, Colorado, this 3rd day of

October

, 2013.

BY THE COURT:

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

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