Vandivere v. Denham

Filing 16

ORDER dismissing this action without prejudice by Judge Lewis T. Babcock on 8/1/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01444-BNB

JAMES DOW VANDIVERE,
Applicant,
v.
DEBORAH DENHAM, Warden, FCI Englewood,
Respondent.

ORDER OF DISMISSAL

Applicant, James Dow Vandivere, is a prisoner in the custody of the Federal
Bureau of Prisons (BOP) at the Federal Correctional Institution - Englewood in Littleton,
Colorado. Mr. Vandivere initiated this action by filing pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241. On June 19, 2014, Magistrate Judge
Boyd N. Boland ordered Respondent to file a Preliminary Response and address the
affirmative defense of exhaustion of administrative remedies. Respondent filed a
Preliminary Response (ECF No. 14) on July 10, 2014, and Mr. Vandivere filed a Reply
(ECF No. 15) on July 23, 2014.
The Court must construe the Application and Reply liberally because Mr.
Vandivere is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Therefore, Mr. Vandivere’s filings are
held to standards less stringent than those governing a formal pleading drafted by an

attorney. See id. However, the Court should not act as an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Application will
be denied.
Mr. Vandivere currently is serving a 235-month prison sentence. Taking into
account good-conduct time, his projected release date is July 12, 2015. (ECF No. 14-1
at 4). The § 2241 Application relates to Mr. Vandivere’s desire to be placed
immediately in a halfway house or Residential Reentry Center (RRC) to serve the final
twelve months of his prison term in accordance with the Second Chance Act. Mr.
Vandivere asserts that BOP officials lied when they informed him that there were no
halfway houses that would accept sex offenders. He further contends that BOP officials
have discriminated against him because of his sex offender status by blocking “each
and every attempt at early release of any kind” in violation of 18 U.S.C. § 3624(c). He
also asserts that BOP officials have “refused to offer any assistance” in locating his
friends so that he could provide a release address, a requirement for placement in a
halfway house. He also contends that BOP officials denied him RRC placement
because they considered only one factor under 18 U.S.C. § 3621(b) and failed to
consider the other two statutory factors. Finally, Mr. Vandivere asserts that it would
have been futile to attempt to exhaust administrative remedies because the BOP
administrative procedure would not have been completed in time for him to be awarded
a twelve-month placement in a halfway house. In his Reply, Mr. Vandivere also
contends that exhaustion was futile because according to BOP policy he is ineligible for
early release beyond six months in a halfway house or RRC.
Exhaustion of administrative remedies is a prerequisite to federal habeas corpus
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relief pursuant to 28 U.S.C. § 2241. See Williams v. O’Brien, 792 F.2d 986, 987 (10th
Cir. 1986). Furthermore, the exhaustion requirement is satisfied only through proper
use of the available administrative procedures. See Woodford v. Ngo, 548 U.S. 81, 90
(2006). “Proper exhaustion demands compliance with an agency’s deadlines and other
critical procedural rules because no adjudicative system can function properly without
imposing some orderly structure on the course of its proceedings.” Id. at 90-91.
Inmates may not exhaust their administrative remedies by failing to employ them.
Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002).
The BOP administrative remedy procedure is available to Mr. Vandivere. 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, an inmate first presents an issue of concern informally to
prison staff in an attempt to resolve the issue. § 542.13. If an inmate is not able to
resolve the issue informally he files a formal administrative remedy request, usually with
the warden of the facility where he is incarcerated. § 542.14. If the inmate is not
satisfied with the warden’s response he may file an appeal with the appropriate regional
director, and if he is not satisfied with the regional director’s response he may file an
appeal with the general counsel. § 542.15. An appeal to the general counsel is the
final administrative appeal. Id.
Respondent presents evidence that Mr. Vandivere has initiated the formal BOP
administrative procedure 81 times since his incarceration began. (See ECF No. 14 at 3;
ECF No. 14-1 at 3). None of those instances, however, relate to his claims in the
Application. (Id.). Moreover, Mr. Vandivere concedes that he has not exhausted his
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administrative remedies but asserts that his failure to do so should be excused due to
futility. He contends that the administrative process is too slow and that it is unlikely
that the BOP procedure would have been completed by July 2014, the date upon which
Mr. Vandivere would have needed to be transferred to a halfway house in order to
receive a twelve-month placement. (ECF No. 1 at 2-3). He also argues that his
administrative remedy request would be rejected outright according to BOP policy
based on general statements by BOP Director Harley Lappin regarding the Second
Chance Act. (ECF No. 15 at 1-2, 5-6).
Despite this argument, futility does not excuse Mr. Vandivere’s failure to exhaust
administrative remedies. Mr. Vandivere allegedly discovered BOP officials’ “lie” on May
13, 2014 and desired to be placed in a halfway house by July 2014. At a minimum, he
had two months with which to engage the BOP administrative procedure. It was entirely
possible that Mr. Vandivere could have completed the administrative process during
that period. Had Mr. Vandivere pursued his administrative remedies, he may have
achieved a result in his favor or otherwise obtained a final determination concerning his
placement request. Simply because he opted not to exhaust his remedies, and he is
now within twelve months of his release does not establish that exhaustion is futile. See
e.g., Samples v. Wiley, 349 Fed. Appx. 267, 269 (10th Cir. Oct. 19, 2009) (holding that
applicant’s decision to put off engaging the BOP administrative process, and any delay
or alleged futility that decision created, does not excuse his failure to exhaust his
administrative remedies). Mr. Vandivere may not exhaust “administrative remedies by,
in essence, failing to employ them.” See Jernigan, 304 F.3d at 1033.
In addition, Mr. Vandivere’s argument that BOP policy renders him ineligible for
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early release for the full twelve month period also lacks merit. Exhaustion of
administrative remedies is not rendered futile simply because a prisoner anticipates he
will not obtain relief on administrative appeal before the final year of his sentence. The
twelve-month mark in the Second Chance Act is an express statutory maximum, and
not a mandated minimum. See 18 U.S.C. 3624(c)(1)-(6). That exhaustion could
deprive Mr. Vandivere of RRC time is not, in and of itself, an extraordinary circumstance
to warrant waiver of the exhaustion requirement. See e.g., Koger v. Maye, No. 133007-RDR, 2013 WL 591040, at *2 (D. Kan. Feb. 14, 2013) (finding that petitioner did
not met his burden of showing extraordinary circumstances that exempt him from
exhaustion); see also Ciocchetti v. Wiley, 358 F. Appx. 20 (10th Cir. 2009) (rejecting
inmate’s futility argument based on BOP memoranda regarding placement in RRC that
allegedly conflicted with the Second Chance Act), cited with approval in Garza v. Davis,
596 F.3d 1198, 1204 (10th Cir. 2010).
For the above stated reasons, the Court finds that Mr. Vandivere fails to
demonstrate that exhaustion of his administrative remedies would be futile. Therefore,
the instant action will be dismissed for failure to exhaust. Accordingly, it is

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ORDERED that the Application is denied and the action is dismissed without
prejudice for failure to exhaust administrative remedies.
DATED at Denver, Colorado, this

1st

day of

August

, 2014.

BY THE COURT:

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

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