James v. Cozza-Rhodes

Filing 15

ORDER by Magistrate Judge Gordon P. Gallagher on 3/30/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00190-GPG
RASHOD L. JAMES,
Applicant,
v.
TERESA K. COZZA-RHODES
Respondent.

ORDER

Applicant, Rashod L. James, is a prisoner in the custody of the United States
Bureau of Prisons (BOP), incarcerated at the United States Penitentiary, Florence High,
in Florence, Colorado. On January 25, 2016, Mr. James initiated this action by filing pro
se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1)
and Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
in a Habeas Corpus Action (ECF No. 2). He has been granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. (See ECF No. 4).
On January 27, 2016, Magistrate Judge Gordon P. Gallagher 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 February 12, 2016, Respondent filed a
Preliminary Response (ECF No. 10) contending that Mr. James failed to exhaust
administrative remedies. On March 7, 2016, Mr. James submitted a Reply (ECF No.

13) arguing that exhaustion was unavailable. On March 25, 2016, Respondent f iled a
Motion to Strike Applicant’s Pleadings (ECF No. 14) contending that another inmate,
Jeremy Pinson, forged Mr. James’ signature in all of his filed pleadings, including the §
2241 Application and Reply.
The Court must construe liberally Mr. James’ filings 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.
In the Application, Mr. James challenges multiple disciplinary hearings on due
process grounds, and seeks expungement of all incident reports. (ECF No. 1 at 3, 6;
ECF No. 1-1 at 2-8).
Respondent first argues that the Application should be dismissed because Mr.
James failed to exhaust administrative remedies, because he has not filed any
administrative remedy/appeal concerning the incident reports at issue. (See ECF No.
10).
In his Reply, Mr. James states that “due to misconduct by BOP officials his ability
to exhaust his administrative remedies was rendered unavailable.” (ECF No. 13 at 1).
He specifically contends that his counselors would not provide him with a BP-10 form to
appeal the results of Incident Report Nos. 2274053, 2317057, 2639324, 2639831,
2731726, 2778098, 2778776, 2767388, 2780070, and 2780476 unless he prov ided the
DHO report for each of these incident reports. (Id. at 4). Mr. James further asserts that

2

his counselors would not provide him with a BP-8 form to challenge the failure of the
disciplinary hearing officer to provide the DHO reports to him following his hearings.
(Id.).
Before the Court considers the question of exhaustion and whether Mr. James
was prevented from exhausting his claims, the Court questions the integrity of Mr.
James’ filings in this case. In an affidavit dated March 24, 2016 and witnessed by a
special investigative agent authorized by 5 U.S.C. § 303 to administer oaths, Mr. James
admits that he did not write any of his lawsuits that are now pending in this Court, and
that Mr. Pinson wrote the pleadings in each action. (See ECF No. 14-1 at 19). See
also James v. Robb, et al., No. 15-cv-2700-CBS (D. Colo. Dec. 14, 2015); James v.
Strube, et al., No. 15-cv-2425-CBS (D. Colo. Nov. 2, 2015).1
Moreover, the Court notes the similarity between the allegations in Mr. James’
pleadings in the instant action and Mr. Pinson’s allegations in his recent habeas
applications before this Court. See Pinson v. Berkebile, No. 14–cv–00475–BNB (D.
Colo. Filed Feb. 24, 2014) (no mental evaluation conducted in disciplinary proceeding);
Pinson v. Berkebile, No. 14–cv–00423–BNB (D. Colo. Filed Feb. 14, 2014) (no mental
evaluation conducted in disciplinary proceeding and denied opportunity to present
witnesses and documentary evidence); Pinson v. Berkebile, No. 14–cv-00410–BNB (D.

1

"[T]he court is permitted to take judicial notice of its own files and records, as
well as facts which are a matter of public record." Van Woudenberg ex rel. Foor v.
Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor
v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
3

Colo. Filed Feb. 13, 2014) (same); Pinson v. Berkebile, No. 13-cv-03252-BNB (D. Colo.
Filed Nov. 29, 2013) (no mental health evaluation conducted in disciplinary proceeding);
Pinson v. Berkebile, No. 12-cv-02673-BNB) (same); see also Pinson v. Berkebile, 528
Fed. Appx. 822, 825-27 (10th Cir. 2013).
Finally, in Perez v. Bureau of Prisons, No. 15-cv-02854-PAB-NYW (D. Colo. Dec.
31, 2015), District Judge Philip A. Brimmer recently entered an order (ECF No. 30) that
an inmate plaintiff’s motions be stricken because Mr. Pinson drafted the motions and
forged the inmate plaintiff’s signature on the motions.
Given Mr. James’ recent revelations that Mr. Pinson wrote the pleadings in Mr.
James’ two other pending lawsuits, the similarity of allegations in the instant § 2241
Application and Mr. Pinson’s recent habeas applications, and Mr. Pinson’s f orgery of
another inmate’s signature in No. 15-cv-02854-PAB-NYW, the Court instructs Mr.
James to respond and verify that he signed the Application and Reply, that the
allegations in his pending pleadings are true and correct, and to indicate whether he
wants to pursue his claims in this case. The Court advises Mr. James that he also may
seek a voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(2) . If Mr. James does not
respond and state to the Court how he would like to proceed with this action, the Court
will address the 28 U.S.C. § 2241 action on the m erits.
Accordingly, it is
ORDERED that Applicant, Rashod L. James, submit within twenty-one days
from the date of this Order, a response verifying that he signed the pleadings, including

4

the Application and Reply, verifying that the allegations in the Application and Reply are
true and correct, and indicating whether Mr. James wants to continue to pursue the
claims in the instant case or seek a voluntary dismissal under Fed. R. Civ. P. 41(a)(2).
DATED at Denver, Colorado, this 30 day of

March , 2016.

BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge

5