Howard v. Denham
ORDER drawing case by Magistrate Judge Gordon P. Gallagher on 10/24/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01157-GPG
DEBORAH DENHAM, CEO/Warden,
Applicant, Dallas Howard, is a prisoner in the custody of the United States Bureau
of Prisons (BOP) and currently is incarcerated at the Englewood Federal Correctional
Institution in Littleton, Colorado. Applicant initiated this action by filing pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2241. Applicant asserts
that his due process rights under Wolff v. McDonnell, 418 U.S. 539 (1974), 1 were
violated in a disciplinary proceeding and he is legally and factually innocent of the
charges he was found guilty of in the April 2, 2014 disciplinary hearing. Applicant also
contends that he has been subjected to excessive punishment because he is an Indian,
which violates his equal protection rights. Applicant seeks the reinstatement of the
forty-one days of good conduct time he lost as a result of his conviction in Incident Report
The Court notes that in Applicant=s administrative remedy appeal to the regional office
he claimed the DHO was unfair and impartial and that he was denied a staff representative and
reports. ECF No. 11 at 13.
After a review of the Application, the Court 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
June 24, 2015, Respondent filed a Preliminary Response that asserts Applicant did not
exhaust his administrative remedies. See ECF No. 10 at 7. Applicant then filed a Reply
on July 13, 2015, and claimed that he had exhausted his administrative remedies
because he had not received a response from the Central Office within the time allowed.
The Court then, after reviewing the Preliminary Response and the Reply, directed
Respondents to supplement the Response. The Court asked Respondent to provide all
remedy complaints and appeals Applicant submitted in the Administrative Remedy
Appeal No. 777064. ECF No. 12 at 2. Respondent also was directed to provide all
written responses from the Regional and Central Office to Applicant and to explain in
understandable terms what is stated on the rejection notices sent to Applicant. Id.
Respondent further was directed to explain the many delays from when an inmate
appeals to the regional or central office and the regional or central office receive the
appeal, and from when the regional or central office responds to the appeal and an
inmate receives the response. Id. Finally, the Court directed Respondent to explain
why Applicant was told his appeal was rejected because he failed to submit the
Disciplinary Hearing Officer=s (DHO) report, when nothing in the BOP Program Statement
5270.09 ' 541.8(i), or 28 C.F.R. 542.14(d)(2), requires Applicant to attach the DHO
report to an appeal, and Warden Berkebile has confirmed in other cases in this Court that
the BOP does not require prisoners to provide a copy of a DHO report. Id. at 2-3.
Most of the information requested by the Court was not provided by Respondent.
First, Respondent has failed to provide to the Court any of Applicant=s complaints or
appeals submitted to the regional or central office. ECF No. 13. In a one-line
statement, Respondent refers to the declaration attached to the Supplement that he
claims contains the information the Bureau has regarding complaints, appeals, and
responses, which is a SENTRY Administrative remedy index. ECF No. 13-1, Attach. 1,
at 8-14. Second, Respondent simply states that he is not able to explain any of the
delays that occurred from when Applicant=s documents were created and then were
received by the regional or central offices. Finally, Respondent contends that when a
rejection notice states the appeal is rejected because a DHO report is not included, it in
actuality means that the inmate must provide information that confirms the disciplinary
charges and the date of the DHO report that was being appealed. ECF No. 13 at 2.
Court finds the only issue is whether Applicant was premature in submitting this action
because he had not exhausted his remedies when he filed this action.
The Court, therefore, finds as follows.
Exhaustion of administrative remedies is a prerequisite to federal habeas corpus
relief pursuant to 28 U.S.C. ' 2241. See Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir.
2010); 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)).
AThe burden [is] on the government to prove the affirmative defense of
exhaustion,@ Acosta v. Daniels, 589 F. App=x 870, 873 ((10th Cir. 2014) (citing Jones v.
Bock, 549 U.S. 199 (2007), which includes asserting and proving that a prisoner did not
utilize administrative remedies, Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)
(citing Jones, 549 U.S. 199).
AOnce a defendant proves that [an applicant] failed to
exhaust, however, the onus falls on the [applicant] to show that remedies were
unavailable to him@ . . . and [an applicant] should be afforded an opportunity to counter the
exhaustion defense.@ Tuckel, 660 F.3d at 1254.
Applicant attached to his Reply the appeal he sent to the regional office in what
appears to be Remedy Appeal No. 777064-R1. ECF No. 11 at 13. The appeal is dated
April 24, 2014. In the appeal, Applicant states he is appealing the results of a hearing
that took place on April 2, 2014, which Respondent agrees is the date the disciplinary
hearing took place. See ECF No. 10 at 6. Respondent does not dispute the
Administrative Remedy No. 777064-R1 that Applicant has attached. He also does not
provide what other method an inmate may use to confirm the timeliness of an appeal
other than stating the dates of the hearing in the appeal, which is what Applicant did.
Again, the Court notes, as it did in the July 22,2015 Order, Bureau officials have
confirmed it is not necessary for an inmate to attach a DHO report to a BP-10 or BP-11
appeals. Pinson v. Berkebile, No. 14-cv-00410-RM, ECF No. 18-6 at 3 (D. Colo.
Reopened May 6, 2015), remanded in part on appeal, No. 14-1336 (10th
Cir. Mar. 10, 2015). Bureau officials also assert that the sufficient information that needs
to be provided in the appeal of a disciplinary matter is (1) the incident report number; (2)
date of DHO hearing; and (3) disciplinary code under which sanctions were imposed. Id.
The BOP administrative remedy procedure is available to federal prisoners such
as Applicant. See 28 C.F.R. '' 542.10 - 542.18. 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 and then
completing all three formal steps by filing an administrative remedy request with institution
staff as well as regional and national appeals. See 28 C.F.R. '' 542.13- 542.15.
Where a determination is made by a DHO, the inmate may skip the initial appeal to
the warden and appeal the DHO=s decision directly to the Regional Director. 28 C.F.R. '
542.14(d)(2). As stated above, the step after the Regional Director is a final appeal to
the Central Office. 28 C.F.R. ' 542.15(a). Pursuant to 28 C.F.R. ' 542.18, the general
counsel must respond within forty calendar days, with an extension of twenty days. An
inmate is to be informed of an extension in writing. See ' 542.18. If an inmate does not
receive a response within the time allotted for a reply, including an extension, the inmate
may consider the absence of a response to be a denial at that level. Id.
Applicant=s appeal to the central office was logged into the Administrative Remedy
Index as received on March 30, 2015. Forty calendar days from March 30, 2015, is May
9, 2015. Respondent does not assert that written notice was given to Applicant of a
required extension. Even if a written notice were given, Respondent only had until May
29, 2015, to respond. This case was filed on June 2, 2015, prior to when Applicant
received a response to his appeal to the central office. Since staff is required to notify an
inmate of an extension in writing and Respondent does not dispute that Applicant did not
receive the rejection notice, which has an altered issue date of May 28, 2015, until June 4,
2015, the Court finds Applicant may consider the absence of a response by May 29,
2015, at the latest, to be a denial of the administrative remedy appeal at the central office
level. Applicant, therefore, has exhausted his administrative remedies.
Pursuant to D.C.COLO.LCivR 8.1(b), the Court, therefore, has determined that
this case does not appear to be appropriate for summary dismissal and that the case
should be drawn to a district judge and to a magistrate judge. See D.C.COLO.LCivR
8.1(c). Accordingly, it is
ORDERED that this case shall be drawn to a presiding judge and when applicable
to a magistrate judge.
DATED October 24, 2015, at Denver, Colorado.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge
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