Bacote Jr v. Berkebile

Filing 25

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/4/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02663-BNB
MICHAEL BACOTE JR.,
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) at the Untied States Penitentiary in Florence, Colorado. Mr.
Bacote initiated this action by filing pro se an Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241.
On December 3, 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 December 11, 2013, Applicant filed an Amended Application.
Magistrate Judge Boland then entered a Second Order to File Preliminary Response
and directed Respondent to address in their Response the additional claims that
Applicant raised in the December 11 pleading. Respondent filed a Preliminary
Response on December 16, 2013. Applicant filed a Motion for Appointment of Counsel
on January 7, 2014. Magistrate Judge Boland denied the Motion for Appointment

finding the issues are not so complex that Applicant is unable to reply to the Preliminary
Response. Applicant was given an additional thirty days to reply. Applicant failed to
reply within the time allowed.
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.
Mr. Bacote asserts his due process rights have been violated because he was
denied a mental health evaluation that is required pursuant to 28 C.F.R. § 541.6 and
BOP Program Statement 5070.12. Mr. Bacote further asserts that he has not
exhausted this claim because he is mentally retarded and mentally ill and only when
other inmates are available to assist him is he able to exhaust his administrative
remedies. In a separate Affidavit, Mr. Bacote states that he suffered from a severe
mental disease on each day that he received an incident report and a psychologist did
not conduct a competency evaluation for any of the incident reports. See ECF No. 3 at
3. Also in ECF No. 3, Mr. Bacote attached a forty-three page Chronological Disciplinary
Record that lists 153 disciplinary incidents that have been filed against Mr. Bacote since
1999. Id. at 6-49. Mr. Bacote seeks expungement of all reports, restoration of an
appropriate custody level and earned time, and a transfer to a federal medical center.
Mr. Bacote filed a previous 28 U.S.C. § 2241 action that challenged forty-three

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disciplinary incidents for the same reason he raises in this action. See Bacote v.
Berkebile, No. 13-cv-01793-LTB (D. Colo. Oct. 23, 2013). The previous § 2241 action
was dismissed for failure to exhaust administrative remedies. The Court found that Mr.
Bacote was able to file forty-seven requests for administrative remedies from April 23,
2002, to July 31, 2013, but only one of the requests challenged a disciplinary
proceeding and that request was not exhausted; and there was no evidence that the
lack of medication or Mr. Bacote’s mental health issues precluded him from exhausting
his administrative remedies in each of his disciplinary proceedings.
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
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

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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
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, the same as
Respondent filed in Case No. 13-cv-01793-LTB, demonstrate that Mr. Bacote
exhausted twenty of the forty-seven administrative remedies requests by appealing to
the national level, nineteen of which were exhausted between 2011 and 2013.
Preliminary Resp., ECF NO. 21-1, Attach. 2 (SENTRY Administrative Remedy Index).
The Court also notes that only one of the requests for administrative remedies, Remedy
No. 649792-F1, challenged a disciplinary hearing. Id. at 4. The Remedy Index,
however, does not indicate the incident report associated with Remedy No. 649792; but

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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.
For the following reasons, there is no evidence that the lack of medication and
Mr. Bacote’s mental health issues in general preclude him from exhausting his
administrative remedies in each of the listed disciplinary incidents. In the Application,
Mr. Bacote asserts his mental health issues claims proficiently and articulates that the
BOP staff failed to conduct a mental health evaluation pursuant to 28 C.F.R. § 541.6
and to BOP Program Statement No. 5070.12. He also appears to have correctly
responded to the Court’s order to cure deficiencies and indicates his ability at this time
to challenge his disciplinary proceedings. If Mr. Bacote is capable of challenging the
lack of mental health evaluations in this action he is capable of exhausting his
administrative remedies. In accordance with the Tenth Circuit’s findings in Pinson v.
Berkebile, 528 F. App’x 822, 827 (10th Cir. June 21, 2013), nothing precludes Mr.
Bacote from exhausting his remedies at this time.
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
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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 $505 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 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.
DATED at Denver, Colorado, this 4th day of

March , 2014.

BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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