Cooley v. True et al

Filing 15

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/29/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03119-GPG
RUSSELL COOLEY,
Applicant,
v.
B. TRUE, Acting Warden, and
TERESA K. COZZA-RHODES, Warden, FCI Florence,
Respondents.

ORDER OF DISMISSAL

Applicant, Russell Cooley, is a prisoner in the custody of the Federal Bureau of
Prisons (BOP), currently incarcerated at the Federal Correctional Institution, in
Florence, Colorado. On November 19, 2014, he filed pro se an Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1).
On November 25, 2014, Magistrate Judge Gordon P. Gallagher entered an order
(ECF No. 4) directing Respondents to file a preliminary response limited to addressing
the affirmative defense of exhaustion of administrative remedies if Respondents
intended to raise that defense in this action. On December 16, 2014, Respondents filed
a Preliminary Response (ECF No. 10). Mr. Cooley did not file a reply, despite being
given the opportunity to do so.
The Court must construe liberally Mr. Cooley’s Application 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. For the reasons stated
below, the Court will deny the habeas corpus application and dismiss the action without
prejudice for failure to exhaust administrative remedies.
Mr. Cooley is currently serving a 42-month sentence for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Mr. Cooley is scheduled
for release on July 15, 2015, via good conduct time release. (ECF No. 10-1,
Declaration of April Bennett at 2, ¶ 3). Mr. Cooley asserts in the Application that the
BOP has failed to credit him for time served for a state-court sentence that
subsequently was vacated and that he is being confined illegally because the BOP has
failed to give him this pre-custody credit. Respondents argue that the Application
should be dismissed for failure to exhaust administrative remedies.
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 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. Cooley. 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
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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
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©. 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.
Mr. Cooley has filed five administrative remedies between July 23, 2014 and
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October 20, 2014 that relate to his claim that his pre-custody credit was not properly
applied to his federal sentence. Mr. Cooley, however, has failed to exhaust his
administrative remedies in the proper manner by filing this action prior to completion of
the BOP’s administrative remedy process. (See ECF No. 10-1 at 5, ¶ 12).
Mr. Cooley filed administrative remedy 787663-F-1 at the BP-9 level on July 23,
2014. (ECF No. 10-1 at 4, ¶ 11 and SENTRY Full Administrative Remedy Generalized
Retrieval at 7). Mr. Cooley requested pre-custody credit for time served from April 2009
to the present date. (Id.) On September 4, 2014, this remedy was denied; status code
DNY is SENTRY code for the remedy being substantially denied in full. (Id.)
On August 29, 2014, Mr. Cooley appealed the denial to the regional level by filing
a BP-10. (ECF No. 10-1 at 4, ¶ 12 and SENTRY Full Administrative Remedy
Generalized Retrieval at 7). The Regional Office instructed Mr. Cooley to provide his
BP-9 and resubmit his appeal within the allotted timeframe. (Id.). On September 5,
2014, Mr. Cooley appealed at the national level by filing a BP-11. (ECF No. 10-1 at 4, ¶
13 and SENTRY Full Administrative Remedy Generalized Retrieval at 8). The BOP
Central Office rejected the BP-11 because Mr. Cooley failed to provide copies of the
BP-9 and BP-10, but gave him 15 days to resubmit his appeal in the proper format. (Id.)
On September 15, 2014, Mr. Cooley refiled his regional BP-10 appeal, which the
Regional Office denied on the merits. (ECF No. 10-1 at 4, ¶ 14 and SENTRY Full
Administrative Remedy Generalized Retrieval at 8). On October 20, 2014, Mr. Cooley
filed a BP-11 appeal at the national level. (ECF No. 10-1 at 5, ¶ 15 and SENTRY Full
Administrative Remedy Generalized Retrieval at 9). The BOP Central Office extended
its appeal response by 20 days until December 19, 2014. (Id.). Rather than wait to file
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this action after December 19, 2014, when a non-response may be deemed a denial,
see 28 C.F.R. § 542.18, Mr. Cooley filed this action on November 19, 2014. As such,
he has failed to demonstrate exhaustion of his administrative remedies by completing
review through all three required levels. See 28 C.F.R. § 542.15(b)(2).
Mr. Cooley has pursued the administrative remedy process with respect to the
claims asserted in this case, but has not completed it. See Jernigan v. Stuchell, 304
F.3d 1030, 1033 (10th Cir. 2002) (a prisoner “may not successfully argue that he has
exhausted his administrative remedies by, in essence, failing to employ them”).
Although 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), Mr. Cooley has not shown any such circumstance.
He admits that he has not exhausted administrative remedies and essentially claims
that exhaustion was futile because “exhausting admin. remedies would not provide this
court with the time needed to provide relief from the punitive consequences. I am due
to be released to the halfway house Jan. 22, 2014. However, I’ve started the admin.
remedy process.” Mr. Cooley’s futility argument is conclusory and fails to assert a
sufficient factual basis for his failure to exhaust. See Mackey v. Ward, 128 Fed. App’x
676, 677 (10th Cir. 2005) (“conclusory allegations that pursuit of administrative
remedies would be futile . . . are insufficient to excuse [a] failure to exhaust”).
Mr. Cooley has not exhausted all BOP administrative remedies before seeking
federal court intervention through the instant habeas corpus application. Therefore, the
application will be dismissed for failure to exhaust.
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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 Mr. Cooley 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 habeas corpus application 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 29th

day of

January

, 2015.

BY THE COURT:

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

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