BOWLING v. ZATECKY

Filing 18

ENTRY - Granting Respondent's Motion to Dismiss; Mr. Bowling failed to exhaust his available administrative remedies before filing this action, the respondent's motion to dismiss, dkt. 8 must be granted. Judgment consistent with this Entry shall now issue. Signed by Judge Sarah Evans Barker on 1/8/2018. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

TRISTAN BOWLING,
Petitioner,
vs.
DUSHAN ZATECKY Superintendent,
Respondent.

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No. 1:17-cv-02236-SEB-DML

Entry Granting Respondent’s Motion to Dismiss
In this habeas action, petitioner Tristan Bowling challenges a prison disciplinary
conviction. He was found guilty on April 27, 2017, of committing a nonconsensual sex act in ISR
17-03-0035. He was sanctioned with the loss of good-time credit, a demotion in credit class, and
segregated housing.
The respondent seeks the dismissal of this action on the grounds that Mr. Bowling failed
to exhaust his administrative appeals process. In Indiana, only the issues raised in a timely appeal
to the Facility Head and then to the Indiana Department of Correction Appeals Review Officer or
Final Reviewing Authority may be raised in a subsequent Petition for Writ of Habeas Corpus. See
28 U.S.C. § 2254(b)(1)(A); Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002); Moffat v. Broyles,
288 F.3d 978, 981 (7th Cir. 2002). The respondent argues that Mr. Bowling failed to exhaust the
administrative appeals process, and because the time to complete such administrative appeals
process has passed, no relief can be given under the habeas corpus doctrine.
Mr. Bowling has opposed the motion to dismiss in his letter filed December 13, 2017. Mr.
Bowling explains that did not know how to file an administrative appeal. So he asked the law clerk

what his next step was and was directed to request a State Habeas Corpus appeal form. Mr.
Bowling was given the form and the law clerk helped him fill it out. This form was submitted to
this Court and the present civil action was opened.
Unfortunately, for Mr. Bowling the fact that he was misled by another inmate is insufficient
to show that the administrative appeals process was not available to him or that he is excused from
completing the process. This is because Mr. Bowling was given the information he needed to
properly complete the administrative appeals process by Indiana Department of Correction
employees. In a letter dated May 15, 2017, Mr. Bowling was instructed that if he wished to appeal
the decision finding him guilty of Code 115, he should contact his Unit Team. Dkt. 15-3 at p.1.
The form on which Mr. Bowling filed his appeal to the facility head on April 27, 2017,
included the following instructions:
Appeal must first be made to the facility head within fifteen (15) working
days of the hearing. The individual making the appeal will do so in Section 1 and
forward to the facility head, who will make his response in Section 2. The facility
head is the final reviewing authority for appeals not involving grievous loss
sanctions. (If the response is unfavorable and involves grievous loss sanctions,
the offender may the forward the appeal, within fifteen (15) working days of
the date the response is received from the facility head, to the appropriate
Final Reviewing Authority).
Doc. 8-4 (emphasis in the original). This form was returned to Mr. Bowling on or about June 6,
2017, along with the response of the facility head to the appeal. The instruction to seek additional
review to the Final Review Authority is clearly indicated on the form and presented in bold. There
is an additional note at the bottom of the form which states: “NOTE: Offender is responsible for
sending copy to Central Office if final review and decision is required.” Id.
Finally, the Department of Correction Disciplinary Code is available to offenders and also
clearly lays out the two stage administrative appeal process. See Disciplinary Code 02-04-101 X
http://www.in.gov/idoc/files/02-04-101_The_Disciplinary_Code_for_Adult_Offenders___6-1-

2015.pdf at p. 52, (last visited December 28, 2017). First, offenders must appeal to the
Superintendent or facility head and second, for offenders whose sanctions include grievous loss,
an appeal to the Appeal Review Officer or Final Reviewing Authority.
Under these circumstances, the administrative appeal process was available to Mr.
Bowling, and the information on how to appeal was presented to him and readily available despite
receiving incorrect information from another inmate.
Section 2254 requires that a person in custody exhaust the remedies available in the courts
of the State before they are permitted to bring a habeas corpus claim. State court remedies must be
exhausted if they are “available and adequate.” Preiser v. Rodriguez, 411 U.S. 475, 477 (1973). A
petitioner’s failure to exhaust his available remedies results in “procedural default precluding
habeas relief.” Dunne v. Henman, 914 F.2d 260 (7th Cir. 1990). Because the undisputed record
reflects that Mr. Bowling failed to exhaust his available administrative remedies before filing this
action, the respondent’s motion to dismiss, dkt. [8] must be granted.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

1/8/2018
Date: __________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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