NEAL v. OLIVER

Filing 3

ENTRY Directing Further Proceedings. Petitioner shall have through September 4, 2013, in which to address the issues discussed in the Entry and to show cause why the action should not be dismissed without prejudice. The petitioner shall also have through September 4, 2013, in which to either pay the $5.00 filing fee or demonstrate his financial inability to do so. Signed by Judge Jane Magnus-Stinson on 8/14/2013. Copy mailed to Petitioner via U.S. Mail.(NMT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

ROBERT DAVID NEAL,
Petitioner,
vs.
JOHN C. OLIVER,
Respondent.

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No. 2:13-cv-199-JMS-WGH

Entry Directing Further Proceedings
Habeas petitioner Robert David Neal seeks relief pursuant to 28 U.S.C. ' 2241. This
means that he is required to exhaust his available administrative remedies. See Greene v. Meese,
875 F.2d 639, 640 (7th Cir. 1989) (A[T]he requirement of exhaustion is judge made for federal
[habeas corpus cases] . . . but is a requirement nonetheless.@) (internal citations omitted). The
Federal Bureau of Prisons (“BOP”) provides an administrative remedy process through which
BOP inmates may seek formal review of an issue relating to any aspect of their confinement. See
28 C.F.R. ' 542.10. In order to exhaust available administrative remedies within this system, an
inmate must proceed through four levels: (1) an attempt at informal resolution; (2) a formal
written request to the Warden for an administrative remedy; (3) an appeal to the Regional
Director of the region where the inmate is confined; and (4) an appeal to the General Counsel.
See 28 C.F.R. '' 542.13-542.15. The appeal to the General Counsel completes the administrative
remedy process. See 28 C.F.R. ' 542.15(a).
The procedure just described is referenced in paragraph 8 of the form habeas petition
which has been filed in this case. In that petition, Neal states that he filed an appeal from a
grievance concerning the challenged disciplinary proceeding, but did not file a further and final

appeal because a timely response to the first appeal was not made. He states that from this nonresponse his opportunity to proceed through the conclusion of the grievance process was
truncated. The premise of this statement is that he was unable to file a further appeal because of
the absence of a timely response to his first appeal.
The premise of Neal’s explanation for not completing the appeals process is incorrect. The
administrative remedy procedure of the BOP addresses the scenario in which an inmate who has
filed a grievance does not receive a timely response. It does so by providing that if the inmate
does not receive a response within the time allotted for reply, including extension (20 days at the
institution level, 30 days at the regional level, or 20 days at the Central Office level), the inmate
may consider the absence of a response to be a denial. See 28 C.F.R. § 542.18.
The foregoing suggests that Neal may have filed this action prematurely, i.e., before he
had completed the administrative remedy process available to him. He shall have through
September 4, 2013, in which to address the foregoing and to show cause why the action should
not be dismissed without prejudice.
The petitioner shall also have through September 4, 2013, in which to either pay the
$5.00 filing fee or demonstrate his financial inability to do so.
IT IS SO ORDERED.
08/14/2013
Date: _________________

Distribution:

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

ROBERT DAVID NEAL
15151-180
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808