Toney v. Berkebile

Filing 12

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-02238-BNB
JOE M. TONEY, JR.,
Applicant,
v.
D. A. BERKEBILE, Warden,
Respondent.

ORDER OF DISMISSAL

Applicant, Joe M. Toney, Jr., is a prisoner in the custody of the Federal Bureau of
Prisons (BOP) at the United States Penitentiary, Administrative Maximum, in Florence,
Colorado. He filed pro se on August 12, 2014, an Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 1). He has been granted leave to proceed
pursuant to 28 U.S.C. § 1915.
On August 13, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 5) directing 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 September 3, 2014, Respondent filed a preliminary
response (ECF No. 10). On September 17, 2014, Mr. Toney filed a reply (ECF No. 11).
The Court must construe liberally the filings of Mr. Toney 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 be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. The Court may take judicial

notice of its own records and files that are part of the Court’s public records. See St.
Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979). For the reasons stated below, the Court will deny the habeas corpus application
and dismiss the action.
Mr. Toney was convicted in the United States District Court for the Eastern
District of Louisiana, Criminal Action No. 00-00284-MLCF, on charges of bank robbery
and sentenced to 188 months of incarceration to be followed by three years of
supervised release. See ECF No. 10, ex. A-1 (declaration of April Bennett), attachment
1 at 11. He also was convicted in the United States District Court for the Middle District
of Florida, Criminal Action No. 06-cr-00003-WTH-PRL, on charges of assault on a
federal corrections officer and sentenced to 12 months of incarceration to be followed
by one year of supervised release. See ECF No. 10, ex. A-1, attachment 1 at 12.
On May 2, 2014, Mr. Toney received an incident report, No. 2578861, for
refusing to obey the order of a staff member, among other things. See ECF No. 1 at 2,
6-8; see also ECF No. 10 at 1, ex. A-1 at 3, ¶ 4. After being found guilty of the incident,
Mr. Toney was removed from his inmate orderly job. See ECF No. 1 at 2, 6-8; see also
ECF No. 10 at 3, ex. A-1 at 3, ¶ 4. He contends his receipt of the incident report was
retaliatory and his subsequent discipline violated due process. He seeks to have the
incident report expunged from his prison record and his orderly job reinstated. See ECF
No. 1 at 5.
Respondent argues that the application should be dismissed for failure to
exhaust administrative remedies before seeking federal habeas corpus relief.
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) (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 he 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 Mr. Toney. 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 (BP-8)
and then completing all three formal steps by filing an administrative remedy request
with institution staff (BP-9) as well as regional and national appeals (BP-10 and BP-11).
See 28 C.F.R. §§ 542.13 - 542.15. Inmate appeals must be accompanied by copies of
their administrative filings and responses at lower levels. See 28 C.F.R. § 542.15(b)(1).
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
at the preceding level. “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.” 28 C.F.R. § 542.18. “An inmate may not raise in
an Appeal issues not raised in the lower level filings.” 28 C.F.R. § 542.15(b)(2). An
inmate also “may not combine Appeals of separate lower level responses (different
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case numbers) into a single Appeal.” Id.
If an inmate fails to comply with the procedural requirements of the administrative
remedy process, a request may be rejected at any stage of the process. 28 C.F.R. §
542.17(a). When a submission is rejected, the inmate is provided with a written notice
as to the reason for rejection and, if the defect is correctable, a reasonable extension of
time to correct the defect and resubmit the appeal. 28 C.F.R. § 542.17(b). If an appeal
is rejected and the inmate is not given an opportunity to correct the defect, the inmate
may appeal the rejection to the next appeal level. 28 C.F.R. § 542.17(c). The
coordinator at the next appeal level may affirm the rejection, direct it to be submitted at
the lower level, or accept it for filing. Id.
An inmate may file an administrative remedy request directly to the regional level,
marked as “sensitive,” if he reasonably believes his safety or well-being would be placed
in danger if the request became known at the institution. 28 C.F.R. § 542.14(d)(1). If
the regional administrative remedy coordinator does not agree that the request is
sensitive, the request will not be accepted, and the coordinator advises the inmate in
writing of that determination. Id. The inmate then may pursue the matter by submitting
an administrative remedy request locally to the warden without the “sensitive”
designation. Id.
Failure to exhaust may be excused in rare cases in which an applicant
demonstrates that exhaustion would be futile, Garza v. Davis, 596 F.3d 1198, 1203
(10th Cir. 2010), or that irreparable harm would otherwise result. Steck v. Chester, 393
F. App’x 558, 560 (10th Cir. 2010).

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Respondent argues that the application should be dismissed for failure to
exhaust administrative remedies before seeking federal habeas corpus relief.
Respondent contends that, since May 2, 2014, the date of the incident report at issue,
Mr. Toney has filed eighteen administrative remedies or appeals from the denial of the
administrative remedies. See ECF No. 10 at 3, ex. A-1 at 6, ¶ 10. Of these
administrative remedies, Respondents contend only two, one of which was submitted as
sensitive, potentially relate to the subject matter of this action, and neither has been
exhausted fully. The first administrative remedy is No. 718516, through which Mr.
Toney sought to have incident report No. 2578861 expunged and his orderly job
reinstated. ECF No. 10 at 3, ex. A-1 at 6, ¶ 11. Mr. Toney timely filed No. 718516 at
the institution level on May 28, 2014. See ECF No. 10 at 3, ex. A-1 at 6, ¶ 12; see also
ECF No. 10, ex. A-1, attachment 3 at 20.
The BOP’s response to Mr. Toney normally would have been due 20 days later,
on June 17, 2014. See ECF No. 10, ex. A-1 at 6, ¶ 13. However, the BOP sought an
additional 20 days to make an appropriate decision, which made its response due on
July 7, 2014. See ECF No. 10, ex. A-1 at 6, ¶ 13.
The BOP did not respond in a timely manner to administrative remedy No.
718516. See ECF No. 10 at 3 n.1, ex. A-2 at ¶¶ 13-14. When Mr. Toney did not
receive a timely response to his administrative remedy, he could have considered that
remedy denied and proceeded to the next required administrative remedy level. See 28
C.F.R. § 542.18; see also Eldridge v. Berkebile, No. 14-1235, 2014 WL 3906846, at *2
(10th Cir. Aug. 12, 2014) (“Once Mr. Eldridge failed to receive a timely response to his
BP-9, he could have considered that level denied and filed a BP-10, proceeding next to
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a BP-11. He did not, proceeding directly to district court. He thus failed to exhaust his
available administrative remedies.”).
Mr. Toney filed an administrative remedy appeal, No. 781516-R1, with the
regional office on June 4, 2014. See ECF No. 10 at 3, ex. A-1 at 7, ¶ 15; see also ECF
No. 10, ex. A-1, attachment 3 at 21. However, the regional office rejected that
administrative remedy appeal because it was filed prematurely, i.e., just six days after
Mr. Toney filed his original remedy with the institution. See ECF No. 10 at 3, ex. A-1 at
7, ¶ 15. Mr. Toney never filed a proper regional- or national-level appeal of
administrative remedy No. 718516. See ECF No. 10 at 3, ex. A-1 at 7, ¶ 16. Therefore,
administrative remedy No. 781516 is not exhausted.
The second administrative remedy is No. 779670. Mr. Toney attached to his
application the documentation pertaining to this administrative remedy. See ECF No. 1
at 14-15. In this request, Mr. Toney asked that several BOP staff members be
investigated for allegedly refusing to answer his call button, purposely taking his orderly
job to give to an inmate of another race, and setting him up for an incident report in
retaliation for filing a case in court. See ECF No. 1 at 15; see also ECF No. 10, ex. A-1
at 7, ¶ 17. He filed this administrative remedy as a “sensitive” remedy request at the
institution level. See ECF No. 10 at 3-4, ex. A-1 at 7, ¶ 18. No. 779670 was rejected at
the institutional level. See ECF No. 1 at 14. Mr. Toney never re-filed or appealed this
administrative remedy. See ECF No. 10 at 4; ex. A-1 at 8, ¶ 20. This administrative
remedy, therefore, also is not exhausted.
Mr. Toney failed to exhaust his administrative remedies before seeking federal
court intervention through the instant habeas corpus application. He also has not made
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factual allegations to show he should be excused from exhausting administrative
remedies because exhaustion is futile. The application will be dismissed for failure to
exhaust.
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 Mr. Toney files a notice of appeal he also must pay the full $505.00 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 habeas corpus application (ECF No. 1) is denied and the
action dismissed without prejudice for failure to exhaust administrative remedies. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
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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