Marshall v. Oliver
ORDER To File Supplement To Preliminary Response, by Magistrate Judge Gordon P. Gallagher on 3/4/15. (morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03184-GPG
ORDER TO FILE SUPPLEMENT TO PRELIMINARY RESPONSE
As part of the preliminary consideration of the Amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 f iled on December 26, 2014, in this
action, the Court ordered Respondent to f ile a Preliminary Response limited to
addressing the affirmative defense of exhaustion of administrative remedies. On
January 16, 2015, Respondent filed a Preliminary Response.
Respondent argues that the Application should be dismissed for failure to
exhaust administrative remedies because Applicant failed to employ the Federal
Bureau of Prisons (BOP) administrative remedy process before filing this action.
Specifically, Respondent asserts that Applicant filed four administrative remedies that
relate to the disciplinary hearing officer report he is challenging, but that the appeals
were dismissed as untimely and Applicant “did not submit any further administrative
remedy requests to cure the deficiencies in his original filing.” Respondent, however,
does not address Applicant’s argument, raised in the initial application and supporting
documents, that his appeals were rejected as untimely due to institutional staffing
issues by the prison. (See ECF No. 1 at 18). Therefore, Respondent will be directed to
file a supplement to the Preliminary Response that addresses whether prison officials
made the administrative remedy unavailable to Applicant. See Tuckel v. Grover, 660
F.3d 1249, 1254 (10th Cir. 2011); Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225
(10th Cir. 2007) (court must ensure that “any defects in exhaustion [are] not procured
from the action or inaction of prison officials”). Respondent also should provide the
Court with any documentary evidence that demonstrates whether the North Central
Regional Office considered the prison staff member’s memorandum explaining that the
untimely submission was not Applicant’s fault. Accordingly, it is
ORDERED that within twenty-one (21) days from the date of this Order
Respondent shall file a supplement to the Preliminary Response that complies with this
Order. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of any
supplement to the Preliminary Response Applicant may file a Reply to the
supplement, if he desires.
Dated: March 4, 2015
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge
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