Dorn v. USA

Filing 12

MEMORANDUM OPINION & ORDER: 1. Dorn's current petition for a writ of habeas corpus [R. 1 ] is DENIED WITHOUT PREJUDICE to his right to file a new action once he has fully exhausted his administrative remedies. 2. This civil action is STRICKEN from the Court's docket. 3. The Court will enter a corresponding Judgment. Signed by Judge Gregory F. VanTatenhove on 6/07/21.(JLM)cc: COR and Kevin Dorn by US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
KEVIN DORN,
Petitioner,
v.
FRANCISCO QUINTANA, Warden,
Respondent.

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Civil No. 5:21-058-GFVT

MEMORANDUM
OPINION
&
ORDER

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Kevin Dorn is an inmate at the Federal Medical Center in Lexington, Kentucky.
Proceeding without an attorney, Dorn filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 in which he challenges the Bureau of Prisons’ (BOP’s) calculation of his sentence.
[R. 1.] The Respondent then filed a response to Dorn’s petition, arguing, among other things,
that he failed to fully exhaust his administrative remedies. [R. 10.] Since the time for Dorn to
file a reply brief has now passed [see R. 11], this matter is ripe for a decision.
The Court has fully reviewed the parties’ submissions and will deny Dorn’s present
petition without prejudice. That is because the Respondent has demonstrated that Dorn failed to
fully exhaust his administrative remedies. Under the law, there is a multi-tiered administrative
grievance process within the BOP. If a matter cannot be resolved informally, the prisoner must
file an Administrative Remedy Request Form (BP-9 Form) with the Warden, who has 20 days to
respond. See 28 C.F.R. §§ 542.14(a) and 542.18. If the prisoner is not satisfied with the
Warden’s response, he may use a BP-10 Form to appeal to the applicable Regional Director, who
has 30 days to respond. See 28 C.F.R. §§ 542.15 and 542.18. If the prisoner is not satisfied with
the Regional Director’s response, he may use a BP-11 Form to appeal to the General Counsel,
who has 40 days to respond. See 28 C.F.R. §§ 542.15 and 542.18. Whether or not a prisoner has

properly exhausted these administrative remedies is an affirmative defense. See, e.g., Luedtke v.
Berkebile, 704 F.3d 465, 466 (6th Cir. 2013).
Here, the Respondent has presented evidence that Dorn has not submitted any relevant
administrative remedy requests while in federal custody. Rather, it appears Dorn has filed only
one administrative remedy request, and that request was unrelated to the claim in his petition.
[See R. 10 at 4; R. 10-1 at 2.] Dorn has also not offered any timely arguments or evidence in
reply to the Respondent’s position regarding exhaustion. Thus, the Respondent has adequately
established its affirmative defense. In short, Dorn has not yet fully exhausted his administrative
remedies, which is a prerequisite to filing suit in federal court. Therefore, the Court will not
address the merits of Dorn’s claim at this time, and, instead, it will deny his current petition
without prejudice to his right to file a new action once he has fully exhausted his administrative
remedies.
Accordingly, the Court ORDERS as follows:
1. Dorn’s current petition for a writ of habeas corpus [R. 1] is DENIED WITHOUT
PREJUDICE to his right to file a new action once he has fully exhausted his
administrative remedies.
2. This civil action is STRICKEN from the Court’s docket.
3. The Court will enter a corresponding Judgment.

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This 7th day of June, 2021.

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