Mackey v. Cozza-Rhodes

Filing 13

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/25/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01708-BNB

BAKARI MACKEY,
Applicant,
v.
T. K. COZZA-RHODES,
Respondent.

ORDER OF DISMISSAL

Applicant, Bakari Mackey, is a prisoner in the custody of the United States
Bureau of Prisons (BOP) at the Federal Correctional Institution in Florence, Colorado.
Applicant initiated this action by filing an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241. On June 25, 2014, Magistrate Judge Boyd N. Boland
ordered 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 July 15, 2014, Respondent filed a Preliminary Response
arguing that this action should be dismissed for failure to exhaust administrative
remedies. Applicant filed a Reply on July 28, 2014.
The Court must construe liberally the Application because Applicant 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 act as an

advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will dismiss the action.
Applicant claims his due process rights were violated when he was denied his
request for witnesses and for a surveillance video that would show he did not commit
the offense of being in an unauthorized area for the purpose of stalking someone. He
also claims that the Disciplinary Hearing Officer misrepresented the facts in support of
his conclusion that Applicant was guilty. Applicant seeks expungement of the incident
report and restoration of twenty-seven days of good conduct time and telephone
privileges.
Respondent asserts that based on the BOP’s administrative remedy records,
Applicant had not exhausted his administrative remedies in Incident Report (IR) No.
2534074, the report at issue, before he filed this action. Respondent further asserts that
based on the SENTRY database, which is used by the BOP to track administrative
remedy complaints and appeals for each inmate, see Prelim Resp., Attach 1, ECF No.
11-1, at 3, Applicant first submitted an appeal to the Regional Office on February 6,
2014, which was denied. He then appealed the denial to the Central Office on March
18, 2014, which was then rejected but was subsequently accepted on May 5, 2014,
when resubmitted. Id. Respondent contends that Applicant filed this action before June
14, 2014, when a response was due from the Central Office, which was forty days after
the appeal was logged into the Administrative Remedy Index. Id. Finally, Respondent
asserts, in accordance with § 542.18, that Applicant’s appeal would not be deemed
denied until July 4, 2014, when the time for the twenty-day extension had also passed.
In his Reply, Applicant asserts that because the Central Office response was
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eleven days past due when Respondent filed the Preliminary Response, and twenty
days past due when Applicant replied to the Preliminary Response, it would not be in
the interest of judicial economy to dismiss this action.
Exhaustion of administrative remedies is a prerequisite to federal habeas corpus
relief pursuant to 28 U.S.C. § 2241. See 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)). “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.
The BOP administrative remedy procedure is available to federal prisoners such
as Applicant. See 28 C.F.R. §§ 542.10-19. The administrative remedy procedure allows
“an inmate to seek formal review of an issue relating to any aspect of his/her own
confinement.” Id. at § 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 id. at 28 C.F.R.
§§ 542.13-15. Initial appeals at the institution level, however, are excepted in prison
disciplinary proceedings; an inmate initially files an appeal of a DHO hearing to the
regional director before pursuing a national appeal. Id. at § 542.14(d)(2).
An inmate has twenty days to appeal to the appropriate regional director and
thirty days to file a national appeal to the BOP Central Office after receiving a response
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at the preceding level. Id. at § 542.15. “If the inmate does not receive a response
within the time allotted for reply, including extension, the inmate may consider the
absence of a response to be a denial at that level.” Id. at § 542.18.
Applicant did not submit this action prior to June 14, 2014, as suggested by
Respondent, see Prelim. Resp. at 3. The Application was dated and signed on June
17, 2014, three days after the forty days had run and a response was due from the
Central Office. Nonetheless, as set forth in § 542.18, Applicant’s appeal is not deemed
denied until the extension time has run. Applicant’s appeal, therefore, would not have
been deemed denied until sixty days from May 5, 2014, which was July 4, 2014. The
Application was signed on June 17, 2014, and filed in this Court on June 19, 2014.
Applicant claims that it is in the interest of judicial economy to overlook the fact
that he did not comply with § 542.18 and filed this action before he had exhausted the
administrative remedies.
This Court’s review of only exhausted claims is “grounded in strong principles of
judicial economy and respect for administrative agency deliberation.” United States v.
Eccleston, 521 F.3d 1249, 1256 (10th Cir. 2008) (citing Johnson v. Meadows, 418 F.3d
1152, 1156 (11th Cir. 2005) (a 42 U.S.C. § 1983 action that lists seven policy reasons
supporting administrative exhaustion requirements)). One of the reasons a court
reviews only exhausted claims, as stated in Johnson, is to avoid the possibility that
“frequent and deliberate flouting of the administrative processes could weaken the
effectiveness of an agency by encouraging people to ignore its procedures.” Johnson,
418 F.3d at 1156.
There are reasons for waiving exhaustion requirements. Exhaustion may be
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waived where an applicant claims prison staff thwarted, prevented, or hindered him from
utilizing the administrative remedy process, Little v. Jones, 607 F.3d 1245 (10th Cir.
2010), or it is futile to exhaust the administrative process because there is an adverse
decision that would dispose of the exact issue raised by the applicant, see Goodwin v.
Oklahoma, 923 F.2d 156, 157-58 (10th Cir. 1991). Neither hindrance nor futility is at
issue in this case. Also, Applicant’s health or safety is not at issue.
Because the BOP is in a “superior position to investigate the facts, judicial
intervention usually is deferred until administrative remedies have been exhausted.”
See Williams, 792 F.2d at 987. Circumventing the administrative exhaustion process by
filing a habeas corpus application before exhausting undermines the system designed
for effective and efficient administration of justice. See Woodford, 548 U.S. at 90-91.
Therefore, the Court finds that judicial economy and respect for administrative agency
deliberation supports a dismissal of this action for failure to exhaust the BOP’s
administrative remedy procedure before filing a federal § 2241 action in this Court.
Furthermore, 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 is denied and the action is dismissed without
prejudice for failure to exhaust administrative remedies. It is
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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 25th day of

August

BY THE COURT:

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

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, 2014.