Pinson v. Berkebile

Filing 21

ORDER Of Dismissal. The Application is denied and the action is dismissed in part with prejudice and in part without prejudice. Leave to proceed in forma pauperis on appeal is denied. The Motion for Order and/or Counsel, ECF No. 19 , is denied as moot. By Judge Lewis T. Babcock on 6/11/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00423-BNB

JEREMY PINSON,
Applicant,
v.
DAVID BERKEBILE,
Respondent.

ORDER OF DISMISSAL

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. 2381156, 2451284, 2454283,

2454005, and 2440623 because in each disciplinary proceeding he was 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.
Respondent asserts that Applicant has failed to exhaust his administrative
remedies as to all of the claims in each of the five incident reports at issue. Respondent
asserts that Applicant did not fiIe any administrative remedies or appeals regarding IR
Nos. 2451284, 2454283, 2454005, and 2440623. See Prelim. Resp., ECF No. 10, at 3.
Respondent further asserts that Applicant raised only the mental evaluation claim in his
BP-10 appeal of IR No. 2381156 and failed to assert a denial of mental evaluation in his
BP-11 appeal to the Central Office. Id.
Applicant asserts in his Reply that he properly exhausted his administrative
remedies in IR No. 2381156 because he reincorporated the arguments from his BP-10
appeal by stating in the BP-11 appeal to the Central Office that “rights were violated as
stated in my regional appeal,” and the Central Office fully addressed his mental health
claim in the response to the BP-11 appeal. Reply, ECF No. 13, at 2-3. Applicant further
asserts in his Reply that prison staff never delivered the Disciplinary Hearing Officer
(DHO) reports and refused to provide appeal forms before the reports were delivered to
him in IR Nos. 2451284, 2454283, 2454005, and 2440623. Id. at 2. Finally, Applicant
asserts that following the disciplinary hearings he waited fourteen days for the DHO
reports so he could file an appeal. Id. at 6. Applicant further contends that after the
fourteen days he asked Mr. Foster for BP-10 forms to appeal the four incident reports
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but Mr. Foster denied the forms and told Applicant that he could not appeal the
disciplinary proceedings until he had received the DHO reports. Id. Applicant also
contends that Mr. Foster denied his request for BP-8 forms, precluding his ability to
challenge the delay in his receipt of the DHO reports, and told Applicant that DHO
issues could only be addressed on a BP-10 form. Id. Finally, Applicant contends he
waited several months for the DHO reports. Id.
On April 21, 2014, Magistrate Judge Boland directed Respondent to submit
further briefing regarding the allegations Applicant raised in his Reply. Specifically,
Respondent was directed to state if and when Applicant received the DHO reports in IR
Nos. 2451284, 2454283, 2454005, and 2440623 and to provide these reports to the
Court. Respondent also was directed to state if the BOP requires a prisoner to submit
or provide a DHO report before being given a BP-10 form or being allowed to appeal the
results of a disciplinary action. Finally, Respondent was directed to address Applicant’s
futility claim that his counselor, Mr. Foster, refused to provide him with a BP-10 and a
BP-8 form resulting in Applicant’s inability to exhaust his administrative remedies.
Respondent filed a Response on May 12, 2014, and Applicant replied to the Response
on May 20, 2014.
Respondent asserts in the May 12 Response that on July 22, 2013, Applicant
received DHO reports in IR Nos. 2451284, 2454283, and 2454005. See May 12, 2014
Resp., ECF No. 18, at 1-2. Respondent further asserts that in IR No. 2440623, the Unit
Disciplinary Committee (UDC) sanctioned Applicant to a loss of commissary privileges
for thirty days and did not refer the charges to the DHO for a hearing, see id., ECF No.
18 at 2, and Applicant was advised of the UDC decision on June 3, 2013, id., ECF No.
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18-6 at 1. Respondent also states that Applicant was sanctioned with the loss of good
conduct time only in IR Nos. 2454283 and 2454005. ECF No. 18 at 2.
Respondent attached a Declaration by Mr. Foster to the May 12 Response, in
which Mr. Foster states that during the time Applicant was assigned to his case load he
provided between 100-200 administrative remedy/appeal forms to Applicant. ECF No.
18-1 at 5. Finally, Respondent attached a Declaration by Harrell Watts, the BOP
National Inmate Appeals Administrator. Mr. Watts states that he oversees the Bureau’s
Administrative Remedy Program and confirms that the BOP does not require an inmate
to attach a copy of the DHO report to the appeal of a DHO matter. ECF No. 18-6 at 3.
Mr. Watts further asserts that if the inmate includes sufficient information with which to
identify the DHO matter he will be given appropriate forms without having possession of
the report and the BP-10 and BP-11 will be accepted for filing. Id.
Applicant filed a Reply on May 20, 2014, to the May 12 Response. He claims
that, contrary to Mr. Watts’ Declaration, he had two disciplinary appeals, Exhibit Nos. 1
and 2, that were denied in part because he did not provide a DHO report. See Reply,
ECF No. 20, at 1-2, 6, and 8. Applicant further claims that Exhibit No. 3 attached to the
Reply shows an appeal is rejected even when the charges and date are provided and
that Exhibit No. 4 shows the North Central Regional Office (NCRO) often rejects
appeals and allows insufficient time to correct a deficiency. Id. at 2, 10, and 12.
Applicant also claims that Mr. Foster never delivered DHO reports to him; but that Mr.
Foster states in the Declaration that he had done so, which is stated under penalty of
perjury. Id. at 3. Applicant further contends that other inmates have had their DHO
appeals rejected for not providing a DHO report and have witnessed that Mr. Foster
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denied Applicant BP-10 and BP-8 forms. Id. Finally, Applicant contends that Mr.
Foster’s Declaration should be stricken because he did not sign the Declaration.
Id. at 4.
Before discussing the failure to exhaust issues, the Court first notes that
Applicant’s perjury and invalid signature claims are egregious. Mr. Foster does not
state in the Declaration that he delivered the DHO reports to Applicant and his s/
signature is proper. The perjury accusations against Mr. Foster and request that Mr.
Foster’s Declaration be stricken are examples of Applicant’s voracity to engage in
abusive litigation. The claims will be disregarded by the Court.
Second, based on the information provided by Respondent, and Applicant does
not disagree, Applicant was not sanctioned with the loss of good conduct time in IR
Nos. 2451284, 2440623, and 2381156.
Based on the Inmate Discipline Data that is maintained in the BOP’s SENTRY
database, IR No. 2381156 involved Applicant being insolent to staff and Applicant was
sanctioned to fifteen days of disciplinary segregation and thirty days of loss of
commissary. ECF No. 10-3 at 2. In IR. No. 2451284, Applicant was sanctioned with
fifteen days of disciplinary segregation and a loss of phone privileges for thirty days for
stating he would have slipped his restraints and killed an officer. ECF No. 10-3 at 2;
ECF No. 18-3 at 2-3. Finally, in IR No. 2440623, Applicant misused medication by
placing a handful of pills in his mouth and was sanctioned with a loss of commissary
privileges for thirty days. ECF No. 10-3 at 3; ECF No. 18-6 at 1. Applicant does not

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deny in his Reply that the sanctions for IR Nos. 2381156, 2451284, or 2440623
included only a thirty-day loss of commissary or telephone privileges and in two
proceedings disciplinary segregation for fifteen days.
Because Applicant’s sanctions in IR Nos. 2381156, 2451284, or 2440623 did not
include the loss of good conduct time and did not affect the length of Applicant’s
sentence, his claims are not properly addressed in a § 2241 action.
“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 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). “For inmates
being punished for misconduct, a liberty interest exists only when the penalty lengthens
the confinement or involves an ‘atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’ ” Meek v. Jordan, 534 F. App’x 762, 765
(10th Cir. 2013) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). An inmate must
show that the punishment will “inevitably affect the duration of his sentence.” Sandin,
515 U.S. at 487. The punishment in IR Nos. 2381156, 2451284, and 2440623 does not
inevitably affect the duration of Applicant’s sentence and will be dismissed as improperly
asserted in this action. The Court notes, however, that Applicant, along with other
abusive tactics, has improperly asserted conditions of confinement claims in previous §

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2241 actions and now is subject to filing restrictions as set forth in Pinson v. Kasdon,
No. 13-cv-01384-RM-BNB, ECF No. 123 (D. Colo. May 1, 2014). His restrictions limit
his ability to initiate complaints or habeas actions without representation of a licensed
attorney in the District of Colorado or unless he has obtained permission from the Court
to proceed pro se.
Even if the Court were to construe the claims as challenging conditions of
confinement, and Applicant was granted permission to proceed pro se in a prisoner
complaint, the Due Process Clause does not protect every change in the conditions of
confinement that has a substantial adverse impact on the prisoner, and his claims lack
merit. See Meachum, et al., v. Fano, et al., 427 U.S. 215, 224 (1976). As stated above,
a liberty interest exists only when the penalty involves an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515
U.S. at 484.
Relevant factors to be considered in determining whether certain conditions of
confinement impose atypical and significant hardship in relation to the ordinary incidents
of prison life include whether the conditions relate to and further a legitimate penological
interest, whether the conditions are extreme, whether the conditions increases the
duration of confinement, and whether the conditions are indeterminate. See DiMarco v.
Wyo. Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007).

The loss of certain privileges and being placed on restricted privileges status for

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periods of less than ninety days does not subject Applicant to an atypical and significant
hardship in relation to the ordinary incidents of prison life. See, e.g., Grady v. Garcia,
No. 12-1151, 506 F. App’x 812, 814 (10th Cir. 2013) (inmates placement on restricted
privileged status for 105 days did not constitute an atypical and significant hardship
when compared to the ordinary incidents of prison life); Meek, 534 F. App’x at 765
(finding that sixty days in punitive segregation as a disciplinary sanction did not
implicate a protected liberty interest).
Applicant’s claims regarding IR Nos. 2451284, 2440623, and 2381156, therefore,
will be dismissed on the merits.
The remaining two IR Nos. 2454283 and 2454005 include the loss of good
conduct time, but they also will be dismissed for the following reasons. 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)).
The BOP administrative remedy procedure is available to federal prisoners such
as Applicant. 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

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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. §§ 542.13542.15.
Where a determination is made by a 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 form used to appeal to the
Regional Director is a BP-10 and to the Central Office is a BP-11. See 28 C.F.R.
§ 542.15(a).

The burden of showing exhaustion rests on the applicant in a habeas action.
Clonce v. Presley, 640 F.2d 271, 273 (10th Cir. 1981); see also Jones v. Davis, 366 F.
App’x 942, 944 (10th Cir. 2010). Applicant also has the burden of establishing that
prison officials made an administrative remedy unavailable to him. See Tuckel v.
Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) (citing Jones v. Bock, 549 U.S. 199, 212
(2006)) (applying PLRA’s exhaustion requirement); Jernigan v. Stuchell, 304 F.3d 1030,
1032 (10th Cir. 2002). A remedy is not available when prison officials hinder, thwart, or
prevent an inmate's attempts to exhaust that remedy. Tuckel, 660 F.3d at 1252 (citing
Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010)). The Court must ensure that “any

defects in exhaustion [are] not procured from the action or inaction of prison officials.”

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Aquilar–Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
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).
Furthermore, conclusory allegations that administrative remedies are not available are
insufficient to excuse a failure to exhaust. See Mackey v. Ward, 128 F. App’x 676, 677
(10th Cir. 2005) (discussing futility exception to exhaustion requirement).
The exhaustion of Applicant’s remedies with respect to IR Nos. 2454283 and
2454005 is not futile and waiver of the requirement of exhaustion is inappropriate for the
following reasons.
First, Applicant does not assert that he requested but was denied a BP-8 form for
the purpose of challenging Mr. Foster’s alleged denial of the BP-10 form. Second,
Applicant’s exhibits in the May 20 Reply do not show a contradiction to Mr. Watts’
statement that a DHO report is not required to appeal the results of a disciplinary
proceeding and without a report the appeal will be rejected.
In Exhibit No. 1, Applicant’s appeal addresses a UDC proceeding and not a DHO
hearing. Reply, ECF No. 20, at 6. The reason Applicant’s incident report was rejected
was because a DHO hearing was pending. Under the remarks section of the Rejection
Notice, the administrative remedy coordinator at Florence ADX stated “upon receipt of
your DHO report you may appeal to NCRO.” Id. Nothing in the Rejection Notice

indicates that Applicant must submit a DHO report with his appeal only that his appeal

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was premature.
The Rejection Notice provided in Exhibit No. 2 also does not indicate Applicant is
required to provide the DHO report. Under Reject Reason 2 the administrative remedy
coordinator states, “You did not provide a copy of the DHO report you wish to appeal or
identify the charges and date of the DHO action.” Id. at 8. Under the Remarks, the
coordinator also states “Please attach a copy of your DHO report upon receipt so we
can determine if you are timely.” Id. Nothing in this notice indicates that the appeal was
rejected because Applicant had not provided a DHO report. The appeal was rejected
because Applicant did not provide sufficient information in the appeal for the NCRO
Coordinator to determine the basis for his claims. Applicant is given the option of
providing the report or identifying the charges and date of the DHO action, and the
report is requested only for the purpose of determining the timeliness of the appeal.
The coordinator does not state that a resubmitted appeal will be rejected if a DHO
report is not attached.
Finally, Exhibit No. 3 provides no evidence that an appeal to the NCRO was
rejected even though Applicant included the charges and date, and Exhibit No 4 does
not pertain to any of the incident reports at issue in this case. Exhibit No. 4 involves a
challenge to the denial of Applicant’s placement in a step-down unit. See Pinson v.
Berkebile, No. 12-cv-02673-LTB, ECF No. 20-1 at 50 (D. Colo. Apr. 3, 2014). Also, the
time allowed by the NCRO to correct and resubmit an appeal after it is rejected, which
Applicant asserts Exhibit 4 is an example of the alleged insufficient resubmission time,

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is not at issue in this action.
Even if Mr. Foster did not provide Applicant with either a BP-8 or BP-10 form,
Applicant was not precluded from challenging the denial. Applicant does not state that
he requested an administrative remedy form to challenge Mr. Foster’s actions and was
denied the form. Furthermore, pursuant to BOP Program Statement 5270.09
§ 541.8(h) ordinarily the DHO gives an inmate a written copy of the decisions and

disposition within fifteen work days of the decision. The Program Statement, however,
does not require that a DHO report be provided within fifteen work days. In IR Nos.
2454283 and 2454005, Applicant received a written DHO report on July 22, 2013, within
twenty work days of the date the hearings were held on June 21, 2013. ECF No. 18-4
at 1 and 3; ECF No. 18-5 at 1 and 4. Twenty days is not inordinate.
Finally, in Section VIII of both DHO reports, Applicant was advised that he has
the right to appeal the action through the Administrative Remedy Program within twenty
calendar days of the receipt of the report. First, the Court notes that contrary to
Applicant’s argument that Section VIII indicates that an inmate must submit a DHO
report with his appeal, the Section simply indicates to an inmate that once he receives a
report he has twenty days to appeal. The Section does not indicate that Applicant must
attach a DHO report to an appeal. Nothing precludes Applicant from filing an appeal
prior to having a DHO report in his possession as long as he is able to provide the
requested information.
The Court finds no violation of Applicant’s due process rights in a requirement

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that an inmate must provide specific information when filing an administrative remedy
request, which may be available only in the DHO report. An inmate is provided with
sufficient time once he receives the report, twenty days, to submit a remedy request.
An inordinate delay in providing the report, however, may be a concern. Nonetheless,
no inordinate delay is found in either IR Nos. 2454283 and 2454005.
Finally, Applicant does not assert that once he received the DHO reports he was
denied a BP-10 form or was unable to appeal the results of IR Nos. 2454283 and
2454005. Therefore, the claims regarding these incident reports will be denied for
failure to exhaust administrative remedies.
The Court also 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 Applicant 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 is denied and the action dismissed in part on the
merits and with prejudice regarding the claims associated with IR Nos. 2451284,
2440623, and 2381156. It is

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FURTHER ORDERED that the Application is denied and the action dismissed in
part without prejudice for failure to exhaust administrative remedies regarding the claims
associated with IR Nos. 2454283 and 2454005. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that the Motion for Order and/or Counsel, ECF No. 19, is
denied as moot.
DATED at Denver, Colorado, this 11th day of

June

, 2014.

BY THE COURT:

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

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