Marty v. Cozza-Rhodes

Filing 27

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/24/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01672-BNB
RANDAL MARTY,
Applicant,
v.
T.K. COZZA-RHODES,
Respondent.

ORDER OF DISMISSAL

Applicant, Randal Marty, is a prisoner in the custody of the Federal Bureau of
Prisons (BOP) at the Federal Correctional Facility in Florence, Colorado. He initiated
this action by filing pro se a Writ of Habeas Corpus. Magistrate Judge Boyd N. Boland
directed Applicant to file his claims on a Court-approved form, which he did on July 8,
2014. Because he failed to assert in the July 8 Application the claims he is asserting in
this action, Applicant was directed to amend the Application, which he did on July 28,
2014.
On August 5, 2014, Magistrate Judge Boland directed 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.
Respondent filed a Response on August 21, 2014, and argued the action should be
dismissed because Applicant has failed to exhaust his administrative remedies.
Specifically, Respondent asserts that based on the BOP’s administrative remedy
records, Applicant has filed administrative claims, but none of the claims relate to the

matter at issue in this case. Prelim. Resp. ECF No. 25, at 3. Applicant did not reply to
the Preliminary Response.
The Court must construe liberally Applicant’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 act as
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.
Applicant is challenging the BOP’s calculation of his sentence. Specifically,
Applicant asserts that he would have been released on or about March 9, 2014, if the
BOP had credited him with the presentence confinement time to which he is entitled.
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 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
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. Because Applicant has failed to comply with the BOP administrative remedy
procedure, 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
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 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.
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DATED at Denver, Colorado, this 24th day of

September , 2014.

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

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