Pinson v. Berkebile

Filing 54

ORDER The Court will waive the exhaustion requirement in this action and assign the case to District Judge Raymond P. Moore and to Magistrate Judge Nina Y. Wang pursuant to D.C.COLO.LCivR 40.1(c)(1) for further review of the merits. ORDERED that Resp ondent show cause within twenty-one days from the date of this Order why the Application with respect to the claims challenging Incident Report Nos. 2445224 and 2458043 should not be granted. It is FURTHER ORDERED that within twenty-one days of Respondents answer to the show cause order Applicant may file a reply. FURTHER ORDERED that the Applicant shall remain in custody until further order, by Judge Raymond P. Moore on 10/01/2015. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Raymond P. Moore
Civil Action No. 14-cv-00410-RM
JEREMY PINSON,
Applicant,
v.
J. OLIVER,
Respondent.

ORDER
I. Background
The procedural history of this case, in part, as set forth in the Court=s June 10,
2014 Order to Dismiss in Part, is as follows.
Applicant, Jeremy Pinson, is a prisoner in the custody of the Federal
Bureau of Prisons (BOP), who currently is incarcerated at ADX in Florence,
Colorado. Applicant initiated this action by filing pro se an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2241 and a Prisoner=s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. ' 1915 in a
Habeas Action. Applicant has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. ' 1915.
In an order filed on February 19, 2014, Magistrate Judge Boyd N.
Boland directed Respondent to file a Preliminary Response limited to
addressing the affirmative defense of exhaustion of administrative
remedies. Respondent filed a Response on March 12, 2014, and Applicant
filed a Reply on April 7, 2014.
Applicant asserts that his due process rights were violated in the
disciplinary proceedings associated with Incident Report (IR) Nos.
2451286, 2458043, 2451280, 2399367, and 2445224 because he was
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denied (1) a mental evaluation pursuant to 28 C.F.R. 541.6; (2) a staff
representative to assist him due to his mental illness; (3) a hearing; and (4)
an opportunity to present witnesses and documentary evidence before
being found guilty. Applicant seeks expungement of these disciplinary
convictions and restoration of privileges and good time.
ECF No. 21 at 1-2.
After review of the Preliminary Response and Reply, and of the further briefing
requested by the Court on June 10, 2014, from Respondent and Applicant, the Court
dismissed the action in part on the merits regarding claims associated with IR Nos.
2451286, 2451280, and 2399367. See ECF No. 21 at 15 and ECF No. 28 at 3. The
Court also dismissed the action in part without prejudice regarding the claims associated
with IR Nos. 2458043 and 2445224 for failure to exhaust administrative remedies. ECF
No. 21 at 14. Applicant appealed the dismissal.
The Tenth Circuit affirmed this Court=s dismissal of Applicant=s claims arising from
IR Nos. 2451286, 2451280, and 2399367. Pinson v. Berkebile, No. 14-1336, 12 (10th
Cir. Mar. 10, 2015). But the Circuit vacated the portion of this Court=s Order of Dismissal
that pertains to Incident Report Nos. 2458043 and 2445224. The Circuit directed this
Court to resolve issues of fact material to the question of whether Applicant attempted to
exhaust his administrative remedies but was hindered by prison official=s alleged refusal
to provide him with appropriate forms. Id. at 11. Finally, this Court was directed to
reconsider Applicant=s request for appointment of counsel to assist Applicant in the
proceedings. Id.
This Court then appointed counsel and directed Applicant and Respondent to file
briefs pursuant to the Tenth Circuit=s March 10, 2015 Order. Parties now have complied
with this Court=s directive to brief the issues; Respondent filed a brief on June 16, 2015,
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ECF No. 42, and Applicant filed a brief, through counsel, on September 17, 2015, ECF
No. 51. The Court will address the remanded issues below.
II. Issues
A. Hearsay Challenge to the Government=s Evidence
Respondent contends that Applicant=s hearsay challenge is meritless because Mr.
Rhodes now declares under penalty of perjury that he did in fact deliver the Disciplinary
Hearing Officer (DHO) reports at issue to Applicant on August 16 and 29, 2013. ECF No.
42 at 6; Rhodes Decl., ECF No. 42-2 at 3. Previously, Mr. Foster attested to the delivery
of the reports on August 19 and September 16 by Mr. Rhodes, ECF No. 18-1 at 3-4, which
Applicant argued is hearsay. Mr. Rhodes further attests the DHO reports are true and
correct copies of BOP documents that are kept in the regular course of business in
SENTRY, which is the BOP=s national database that tracks various data regarding an
inmate=s confinement, including disciplinary history and administrative remedies. ECF
No. 42-2 at 1-2. Respondents, therefore, conclude that the DHO reports, themselves,
are exceptions to the hearsay exclusionary rule and the Court can rely on the documents
for the truth of the matter asserted. ECF No. 42 at 7.
Applicant now argues the hearsay issue is moot because the issue has become a
factual dispute between the Rhodes Declaration, ECF No. 42-2, and Applicant=s new
affidavit, ECF No. 51-1 at 1.
The Court, therefore, finds the hearsay question no longer is at issue in this case
and will address the factual disputes as follows.
B. Factual Disputes at Issue Regarding Exhaustion
Exhaustion of administrative remedies is a prerequisite to federal habeas corpus
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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)).
AThe burden [is] on the government to prove the affirmative defense of
exhaustion,@ Acosta v. Daniels, 589 F. App=x 870, 873 ((10th Cir. 2014) (citing Jones v.
Bock, 549 U.S. 199 (2007), which includes asserting and proving that a prisoner did not
utilize administrative remedies, Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)
(citing Jones, 549 U.S. 199).

AOnce a defendant proves that [an applicant] failed to

exhaust, however, the onus falls on the [applicant] to show that remedies were
unavailable to him@ . . . and [an applicant] should be afforded an opportunity to counter the
exhaustion defense.@ Tuckel, 660 F.3d at 1254.
A remedy is not Aavailable@ when Aprison officials prevent, thwart, or hinder a
prisoner=s efforts to avail himself of [the] administrative remedy.@ Tuckel, 660 F.3d at
1252 (quoting Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010). Furthermore,
ACongress did not intend the exhaustion requirement to summarily prevent inmates from
vindicating their constitutional rights.@ Tuckel, 660 F.3d at 1253 (citing Brown v. Plata,
563 U.S. 493, C, 131 S. Ct. 1910, 1937 (2011). The Tenth Circuit has Aobligated district

courts to ensure that any defects in exhaustion are not procured from the action or
inaction of prison officials.@ Tuckel, 660 F.3d at 1252.
Here, the Court takes issue not only with the specifics of this case, as noted below,
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but also with Respondent=s statement that a prisoner is not required to provide a DHO
report when he is challenging the results of a disciplinary action on appeal. Not only in
this case, ECF No. 20 at 8, but also in Howard v. Denham, No. 15-cv-01157-GPG, ECF
No. 10 at 6 (D. Colo. Filed June 2, 2015), the Regional Office has rejected an appeal
based on a prisoner=s failure to submit a DHO report. This rejection is in line with
complaints by prisoners that they are denied the ability to appeal disciplinary
determinations without a DHO report. For the reasons stated below, the Court will waive
the exhaustion requirement and order the case assigned to a district judge and to a
magistrate judge for further review of the merits.
i. Receipt of DHO Report
In Respondent=s Brief Re: Order on Remand, Respondent J. Oliver asserts that
administrative remedies were available to Applicant to challenge the DHO=s decisions.
ECF No. 42 at 1. Respondent further asserts that Applicant received the DHO report in
IR No. 2445224 on August 16, 2013, and the DHO report in IR No. 2458043 on August
29, 2013. Id. at 1. In support of this assertion, Respondent relies on a Declaration by
David Rhodes, who states he personally delivered the DHO reports to Applicant on the
dates set forth above. ECF No. 42-2 at 3. Mr. Rhodes further attests that it is his
practice to deliver the DHO report to an inmate and to verbally advise the inmate that he
has twenty calendar days from the date he receives the DHO report to file the appropriate
administrative remedy with the Regional Office and that he has no reason to believe he
deviated from this practice. ECF No. 42-2 at 3.
The Court questions whether the DHO reports referred to by Mr. Rhodes and
submitted in support of his declaration that he conducted the DHO hearings in IR Nos.
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2445224 and 2458043, and also personally delivered the reports to Applicant on August
16 and 29, 2013, respectively, actually support his declaration. First, the DHO report for
IR No. 2458043, submitted as an attachment to Mr. Foster=s Declaration in the Response
filed by Respondent on May 12, 2014, ECF No. 18, shows that in IR No. 2458043 the
DHO report was delivered to Applicant on September 16, 2013. ECF No. 18-4 at 3.
Second, the DHO report for IR No. 2445224 submitted as an attachment to Mr. Foster=s
Declaration, ECF NO. 18, shows that in IR No. 2445224 the DHO report was delivered to
Applicant on August 19, 2013.
Furthermore, both DHO reports have two signatures on the last page of the report.
ECF Nos. 18-4 at 3, and 18-5 at 4. One of the signatures is prefaced by the printed
named of DHO, which is AD. Rhodes,@ and includes a handwritten first and last name that
is not clearly written but that looks like it could be a complete signature by David Rhodes.
Id. The second signature entered in response to AReport delivered to inmate by:,@ simply
has the name ARhodes@ entered in both DHO reports. Id. The signature for the person
who presided over the hearing is the same in both DHO reports; but the signature of who
delivered the report, in each DHO report, is different from the presiding officer and from
the person who signed as delivering the report in the other DHO report. Id.

The Court also takes note of a DHO report submitted by Applicant in a separate
case, Pinson v. Berkebile, No. 12-cv-03006-RM, ECF No. 27 at 44 (D. Colo. Mar. 14,
2014), in which Mr. Rhodes signed the DHO report as the DHO who presided over the
hearing. Mr. Rhodes= signature in all three DHO reports (this case and Case No.
12-cv-03006-RM), as the person presiding over the hearing, is the same. But the
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signature of the individual delivering the report, in each disciplinary proceeding is clearly
different handwriting than Mr. Rhodes.
Without a statement by Mr. Rhodes regarding the procedure for signing the reports
when delivered, and why the two signatures in each report clearly are different, the
declaration does not support a finding that Mr. Rhodes actually signed the report as the
individual who delivered the reports to Applicant, especially in light of Applicant=s
statements, Resp., ECF No. 51-1 at 4, that it is the normal practice for the secretary to
deliver the DHO report.
Based on the above findings, the Court finds Mr. Rhodes= statements are
insufficient for the Court to find that he delivered a DHO report to Applicant with respect to
IR Nos. 2445224 and 2458043.
ii. Request and Denial of BP-10 Form
Respondent relies on the declarations of the Administrative Remedies Coordinator
at ADX Florence, Mr. Segovia, and of Applicant=s counselor, Mr. Foster, for his argument
that Applicant was not denied a BP-10 form for appealing the DHO=s decision in IR Nos.
2445224 and 2458043 or a BP-8 form for grieving Mr. Foster=s refusal to provide
Applicant with the BP-10 form. ECF Nos. 42 at 7-8, 42-1 at 2, and 42-3 at 2.
Mr. Foster attests he provided Applicant with 100 to 200 administrative remedy/
appeal forms during the time Applicant was assigned to his caseload: but he (1) did not
keep a log book of the appeal forms he gave to inmates; (2) cannot affirmatively state
whether he provided forms to Applicant during the time at issue; and (3) does not recall
refusing to provide Applicant with either a BP-8 or BP-10 form. ECF No. 42-1 at 2.
Mr. Segovia attests that an inmate is not required to provide a copy of the DHO
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report to an ADX official in order to obtain a BP-10 form, and that to his knowledge no
ADX official refused to provide a BP-10 form to Applicant unless he showed the official a
copy of the pertinent report. ECF No. 42-3 at 2-3.
Applicant attests that Mr. Foster would not provide him with a BP-10 form to appeal
the disciplinary determinations unless he had the report and also would not provide a
BP-8 form to him to grieve Mr. Foster=s denial of a BP-10 form to appeal the disciplinary
determinations. ECF No. 47-1 at 1-2.
Without a specific declaration by either Mr. Segovia, or Mr. Foster, that Mr. Foster
did not refuse Applicant=s request for the BP-8 or BP-10 forms, the declarations fail to
support a finding that Applicant was not denied his request for the forms. Mr. Segovia
attests only that the ADX does not require a copy of a DHO report to appeal a disciplinary
hearing determination, and that to his knowledge no bureau official refused to provide
Applicant with a BP-form used to appeal a disciplinary determination. ECF No. 42-1 at
2-3. As for Mr. Foster, he concedes there is no log of administrative remedy/appeal
forms provided to prisoners and he does not know if he provided or refused to provide the
forms to Applicant during the period at issue. ECF No. 42-1 at 2.
Nothing in Mr. Mitchell=s or Mr. Foster=s declaration supports a finding that
Applicant did not attempt to exhaust his administrative remedies and that he was not
thwarted, prevented, or hindered in his attempt to exhaust.
III. Conclusion
The Court, therefore, will waive the exhaustion requirement in this action and
assign the case to District Judge Raymond P. Moore and to Magistrate Judge Nina Y.
Wang pursuant to D.C.COLO.LCivR 40.1(c)(1) for further review of the merits.
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Because the exhaustion requirement has been waived the Court will forego
addressing Applicant=s claim, see ECF No. 20 at 3, that due to his mental illness prison
staff must ascertain his competency and provide staff representation to assist him in filing
an appeal. Accordingly, it is
ORDERED that Respondent show cause within twenty-one days from the date of
this Order why the Application with respect to the claims challenging Incident Report Nos.
2445224 and 2458043 should not be granted. It is
FURTHER ORDERED that within twenty-one days of Respondent’s answer to the
show cause order Applicant may file a reply.
FURTHER ORDERED that the Applicant shall remain in custody until further
order.
DATED this 1st day of October, 2015.
BY THE COURT:

__________________________
RAYMOND P. MOORE
United States District Judge

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