Mertins v. Maye

Filing 2

ORDER ENTERED: Petitioner is granted twenty (20) days in which to either pay the filing fee of $5.00 or submit a properly supported motion to proceed in forma pauperis upon court-approved forms. Respondent is required to show cause within twen ty (20) days from the date of this order why the writ should not be granted. Petitioner is granted ten (10) days after receipt by him of a copy of respondent's answer and return to file a traverse thereto. Petitioner shall serve upon the Unite d States Attorney for the District of Kansas a copy of every further pleading or other document submitted for consideration by this court. Signed by Senior District Judge Richard D. Rogers on 1/4/2013. (Mailed to pro se party Kevin Paul Martins by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KEVIN PAUL MERTINS,
Petitioner,
v.

CASE NO.

13-3001-RDR

C. MAYE,
Respondent.
O R D E R
This petition for writ of habeas corpus was filed pro se pursuant
to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary,
Leavenworth, Kansas.
is $5.00.

The fee for filing a habeas corpus petition

Petitioner has neither paid the fee nor filed a motion

to proceed in forma pauperis.

He will be given time to satisfy the

filing fee in one of these two ways.

If he fails to satisfy the fee

within the time allotted, this action may be dismissed without
further notice.
Petitioner alleges the following in support of his petition.
On May 29, 2012, he was searched by Officer Genter and found to be
carrying a bag containing 40 cartons of milk taken from the Food
Service.

Genter wrote an Incident Report (IR) charging Mertins with

Possession of Stolen Property.

Genter later discovered that the

milk had been discarded because it was expired and that Mertins had
retrieved it from a trash can.

Prior to his disciplinary hearing,

Mertins requested that Officer Genter be called as a witness.
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Genter

planned to appear at petitioner’s hearing initially scheduled for
June 11, 2012, and “explain about the milk,” but he took ill and went
to the emergency room.

On September 11, 2012, Mertins had his

hearing before Disciplinary Hearing Officer (DHO) B. Potts and again
requested that Genter be called as a witness.

He explained that

Genter would testify to having learned information that was not
included in his IR, which would aid Mertins in his defense.
refused to call Genter.

Potts

Petitioner was found guilty of Possessing

Stolen Property and sanctioned with the loss of 27 days good time.
After his hearing, Mertins submitted a request that day to Potts
asking for the IR number so that he could file an administrative
appeal.

He

received a response from

Ms. Prier, Captain/DHO

Secretary, stating that the IR number would be included on his DHO
report, that he could not appeal until he received a copy of the DHO
report, and that “[w]e are currently on March and April 2012’s DHO
reports.”

He was further informed that once his report was done he

would be provided with a copy and would have 20 days from that date
to appeal.

On September 25, 2012, Genter wrote a Memorandum

addressed to the BOP Regional Director stating he had discovered the
milk was trash and would not have written the IR for Possessing Stolen
Property.

Genter recommended that the charge and sanctions be

reduced or expunged.
On October 7, 2012, petitioner sent an appeal to the Regional
Office in which he complained that DHO Potts had violated his right
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to call witnesses under Wolff v. McDonnell, 418 U.S. 439 (1974), and
asked to have the guilty finding overturned.

Petitioner exhibits

a Notice dated October 11, 2012, that this appeal was rejected and
returned to him for the following reason:

“You must wait for the

DHO’s decision of the DHO Hearing before you may appeal to the
Regional Office.”

Mertins was directed to resubmit his appeal

“within 20 days” of his receipt of the DHO’s decision.

Nevertheless,

Mertins went ahead and sent an appeal to the Central Office on October
26, 2012.

He was informed on November 29, 2012, that it had been

rejected on procedural grounds.

On December 18, 2012, petitioner

sent another request to Potts asking for the IR number so he could
appeal.

As of the date he mailed his petition, Mr. Mertins had not

received a reply to this request.
Based upon the foregoing facts, petitioner claims that his
constitutional rights were violated because he was not allowed to
call Genter as a witness at his disciplinary hearing.

He also claims

that he is “being denied meaningful access to the administrative
remedy process” and a “meaningful opportunity to resolve” his issues
within the BOP.

He acknowledges that BOP policy provides inmates

with an administrative remedy process and that an inmate is required
by federal law to fully exhaust administrative remedies.

However,

he claims that he is being prevented from exhausting BOP remedies
by the BOP’s failure to provide the DHO Report.

Petitioner appears

to assert that the court should excuse exhaustion due to “peculiar
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urgency.”

In support, he alleges that his “halfway house papers will

be filed within a month” and that the lost good time will affect his
eligibility date.

He also alleges facts indicating that there may

be reason to assume that “prison administrators . . . will not act
expeditiously.”
(1973).

Cf. Preiser v. Rodriguez, 411 U.S. 475, 494-95

The court finds that a responsive pleading is required.

IT IS THEREFORE BY THE COURT ORDERED that petitioner is granted
twenty (20) days in which to either pay the filing fee of $5.00 or
submit a properly supported Motion to Proceed in forma pauperis upon
court-approved forms.
IT IS FURTHER ORDERED that respondent is hereby required to show
cause within twenty (20) days from the date of this order why the
writ should not be granted; that the petitioner is hereby granted
ten (10) days after receipt by him of a copy of the respondents= answer
and return to file a traverse thereto, admitting or denying under
oath all factual allegations therein contained; and that the file
then be returned to the undersigned judge for such further action
as may be appropriate.
IT IS FURTHER ORDERED that petitioner shall serve upon the
United States Attorney for the District of Kansas a copy of every
further pleading or other document submitted for consideration by
this

court,

and

that

petitioner’s

pleadings

must

contain

a

certificate of service indicating the date a true and exact copy was
mailed to the United States Attorney.
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Any material submitted for

filing which does not include a certificate of service will not be
accepted by the court.
The clerk is directed to send petitioner IFP motion forms.
IT IS SO ORDERED.
DATED:

This 4th day of January, 2013, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

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