Peer v. Denham

Filing 27

ORDER granting 24 Motion to Stay by Magistrate Judge Gordon P. Gallagher on 7/28/15. A Status Report is due by 8/6/2015. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00754-GPG
KEITH E. PEER,
Applicant,
v.
DEBORAH DENHAM, Warden,
Respondent.

ORDER

Applicant, Keith E. Peer, is a prisoner in the custody of the Federal Bureau of
Prisons (BOP) and is incarcerated at the Federal Correctional Institution in Eng lewood,
Colorado. Mr. Peer has filed pro se an Application for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (ECF No. 1). Mr. Peer asserts in the Application that his prison
disciplinary conviction for Introduction of a Narcotic, and his attendant loss of 41 days of
good time credits, violates due process because he was innocent of the charged
offense. For relief, he asks that the disciplinary conviction be expunged from his prison
file.
Respondent filed a preliminary response to the Applicant on June 1, 2015 (ECF
No. 12) asserting the defense of failure to exhaust available administrative remedies.
Mr. Peer filed a reply on June 18, 2015. (ECF No. 15), along with a Motion for
Summary Judgment (ECF No. 16).
On June 22, 2015, after reviewing the parties’ submissions concerning
Respondent’s assertion of the exhaustion defense, the Court ordered Respondent to

file a Supplement to the Preliminary Response within 14 days (ECF No. 18).
Specifically, Respondents were directed to address whether: (1) Applicant has an
available administrative remedy at this time, or if he would be procedurally barred by
administrative procedure time limits from seeking further relief; (2) prison officials
hindered Applicant’s efforts to exhaust administrative remedies; and, (3) whether
Applicant was actually innocent of the disciplinary charge of Introduction of a Narcotic,
so as to excuse any procedural default. (Id.).
After obtaining an extension of time, Respondent filed a Motion to Stay (ECF No.
24) on July 23, 2015. Respondent states in the motion that after conducting a further
investigation into the circumstances of Applicant’s disciplinary conviction, the BOP has
“determined that it would be appropriate to conduct a re-hearing on the issue of
whether Mr. Peer in fact introduced contraband to FCI Englewood.” (Id. at 2).
Respondent represents that the re-hearing will take place within 10 days of the July 23,
2015 filing. (Id.). Respondent asks that this case be stayed pending the re-hearing.
(Id.).
Mr. Peer filed an Objection to Respondent’s Motion to Stay (ECF No. 25) on July
24, 2015. Applicant objects to a re-hearing on the lesser charge of introduction of
contraband because the disciplinary conviction that he challenges in the Application
was for the greater charge of introduction of a narcotic.
Because it is unclear at this time whether the re-hearing will address Mr. Peer’s
existing disciplinary conviction for introduction of a narcotic, the Court will delay any
further proceedings in this case pending the re-hearing (assuming that the re-hearing
will occur on or before August 3, 2015, as represented by the Respondent).
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Accordingly, it is
ORDERED that Respondent’s Motion to Stay (ECF No. 24) is GRANTED as
follows: The Court will stay any further proceedings in this case until August 6, 2015. It
is
FURTHER ORDERED that Respondent shall file a status report concerning the
outcome of the re-hearing, along with a copy of the DHO Report, on or before August
6, 2015.
DATED July 28, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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