Neal v. Superintendent
Filing
40
OPINION AND ORDER: Court DENIES 35 Motion to Dismiss. Respondent to respond by 9/30/2013, and to submit the full and complete administrative record along with the return. Signed by Judge Rudy Lozano on 8/5/2013. cc: Neal (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAVID R. NEAL,
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)
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)
)
)
)
)
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Petitioner,
vs.
SUPERINTENDENT,
Respondent.
CAUSE NO. 3:12-CV-301
OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss,
filed by Respondent, on May 8, 2013 (DE #35).
For the reasons set
forth below, the respondent’s motion to dismiss (DE #35) is DENIED.
David R. Neal, a pro se prisoner, filed an amended habeas petition
challenging a prison disciplinary proceeding.
(DE #24.)
The
respondent is ORDERED to respond to the petition on or before
September
30,
2013,
and
to
submit
the
full
and
complete
administrative record along with the return.
On April 17, 2012, a hearing officer at Miami Correctional
Facility found Neal guilty of disorderly conduct in Cause No. MCF
12-04-0065. (DE #36-6 at 1.) Among other sanctions, the hearing
officer imposed a previously suspended sanction of 30 days lost
earned time credits from a prior disciplinary case. (DE #36 at 1.)
Neal filed an administrative appeal to the facility head, but it
was denied.
(DE #36-7.)
In denying the appeal, the facility head
instructed him, “[s]ince a liberty interest loss is not involved,
this is your final level of appeal.”
(Id.)
The respondent now moves to dismiss, arguing that the petition
is barred by procedural default.
(DE #36.)
As the respondent
points out, principles of exhaustion that apply to federal review
of criminal convictions also apply to review of prison disciplinary
proceedings.
See Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002);
Markam v. Clark, 978 F.2d 993, 994-95 (7th Cir. 1992).
Before
seeking federal habeas relief, a prisoner must take all available
administrative appeals, and must raise in those appeals any issue
on which he seeks federal review.
Eads, 280 F.3d at 729.
An
inmate’s failure to properly exhaust his claims in the state
administrative process means the claims are procedurally defaulted.
Id.
Nevertheless, the procedural default doctrine does not impose
a jurisdictional bar to federal habeas relief.
Chandler, 696 F.3d 660, 669 (7th Cir. 2012).
Eichwedel v.
Rather, it is an
affirmative defense that must be established by the state.
Id.
Furthermore, a habeas petitioner can overcome a procedural default
by establishing cause and prejudice for the default. Wainwright v.
Sykes, 433 U.S. 72, 90 (1977).
Cause sufficient to excuse a
procedural default is defined as “some objective factor external to
the defense” which prevented the petitioner from pursuing his
claim.
Murray v. Carrier, 477 U.S. 478, 488 (1986); see also
2
Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003) (defining
cause as some “external impediment”).
Here, the respondent faults Neal for failing to file a secondlevel appeal to the Indiana Department of Correction (“IDOC”) final
reviewing authority. (DE #36 at 2-3.) However, Neal responds that
he was told he could not appeal any further, and argues that he
completed all levels of review that “MCF would allow me to do.”
(DE #39 at 1.)
The record supports Neal’s argument.
As stated
above, in denying Neal’s appeal, the facility head specifically
advised him that he had no further appeal rights.
(DE #36-7.)
In the related civil rights context, a prisoner cannot be
faulted for failing to exhaust when the “process that exists on
paper becomes unavailable in reality.”
678, 684 (7th Cir. 2006).
Kaba v. Stepp, 458 F.3d
Nor may prison officials take “unfair
advantage” of the exhaustion requirement, and a remedy is not
considered “available” when “prison employees do not respond to a
properly filed grievance or otherwise use affirmative misconduct to
prevent a prisoner from exhausting.”
Id.
The court finds this same reasoning persuasive here.
completed
the
first
level
of
appeal,
and
was
Neal
specifically
instructed by prison staff that he could appeal no further.
The
respondent cannot now seek dismissal of the petition based on
Neal’s failure to pursue a remedy that was not made available to
3
him.1
Based on the record, the respondent has failed to establish
that the petition is barred by procedural default.
Accordingly,
the motion to dismiss will be denied.
For the reasons set forth above, the respondent’s motion to
dismiss (DE #35) is DENIED.
The respondent is ORDERED to respond
to the petition on or before September 30, 2013, and to submit the
full and complete administrative record along with the return.
DATED: August 5, 2013
/s/ RUDY LOZANO, Judge
United States District Court
1
The Court notes that there is some ambiguity in the record as to
whether the previously suspended sanction involved disciplinary segregation,
or lost earned time credits. (See DE #36-6 at 1; DE #39 at 1.) The
respondent asserts that it involved earned time credits (DE #36 at 1), and the
Court has accepted this assertion for purposes of the present motion.
However, if in fact the disciplinary proceeding did not lengthen the duration
of Neal’s confinement, he could not challenge it in a habeas petition.
Montgomery v. Anderson, 262 F.3d 641, 643–44 (7th Cir. 2001).
4
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