Powell v. United States District Court for the Western District of Oklahoma

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION for 14 Motion to Dismiss,, 17 Report and Recommendation. The Report and Recommendation entered by MagistrateJudge Purcell on May 8, 2014 is ADOPTED. Respondents Motion to Dismiss isDENIED, as more fully set out. Signed by Honorable David L. Russell on 8/4/14. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CODY POWELL,
Petitioner,
vs.
MICHAEL ADDISON, Warden,
Respondent.

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Case No. CIV-13-1297-R

ORDER
Before the Court is the Motion to Dismiss filed by Respondent Michael Addison.
Doc. No. 14. This matter was referred to United States Magistrate Judge Gary Purcell. On
May 8, 2014, Judge Purcell entered a Report and Recommendation recommending that
Respondent’s Motion to Dismiss be denied, Doc. No. 17, and Respondent has timely
filed his objections to this. Doc. No. 18. Upon de novo review of the record, the Court
ADOPTS the Report and Recommendation. Respondent’s Motion to Dismiss is
DENIED.
In this case, Petitioner is challenging the execution of his sentence, meaning that
his Petition for Writ of Mandamus (Emergency) should be construed as a petition under
28 U.S.C. § 2241. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Moreover,
unless futile, exhaustion of available state administrative and judicial remedies is required
prior to bringing a petition under § 2241. See Garza v. Davis, 596 F.3d 1198, 1203 (10th
Cir. 2010); Magar v. Parker, 490 F.3d 816, 818 (10th Cir. 2007).

Judge

Purcell’s

Report

and

Recommendation

carefully

considers

the

circumstances surrounding Petitioner’s attempts at exhaustion of his available
administrative remedies prior to the filing of this case, concluding that “even though
Petitioner has not exhausted administrative or state judicial remedies, it would appear that
a finding of nonexhaustion and a dismissal of the action without prejudice to the
completion of administrative and state judicial remedies would be futile.” Doc. No. 17, at
14 (citation omitted). In his objections, Respondent does not take issue with Judge
Purcell’s analysis concerning Petitioner’s attempts at exhaustion of his available
administrative remedies. Respondent still argues, though, that Petitioner’s case should be
dismissed due to his purported failure to exhaust state court remedies.
As mentioned in both the Report and Recommendation and Respondent’s
objections, Oklahoma law provides for state court review of prison disciplinary actions.
Under Okla. Stat. tit. 57, § 564.1(A), “[i]n those instances of prison disciplinary
proceedings that result in the revocation of earned credits, the prisoner, after exhausting
administrative remedies, may seek judicial review in the district court of the official
residence of the Department of Corrections.” (emphasis added). In other words, for a
prisoner to have his or her claims heard by the state court pursuant to the review process
contemplated by § 564.1, the prisoner must first exhaust available administrative
remedies. And failure to exhaust available administrative remedies results in the state
court lacking jurisdiction to hear the prisoner’s claims. See Schubert v. Jones, 535 F.
App’x 723, 724 (10th Cir. 2013) (observing that following a petitioner’s failed attempts
to administratively appeal his prison disciplinary convictions, the state court dismissed
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his petition for judicial review under § 564.1 for lack of jurisdiction due to the fact that he
“never fully exhausted [his] administrative remedies”).
Therefore, if Petitioner had attempted at any point to seek state judicial review
under § 564.1, the state court would have dismissed his claims for lack of jurisdiction due
to his failure to exhaust his administrative remedies. Further, as thoroughly explained in
the Report and Recommendation, Petitioner’s failure to exhaust his administrative
remedies was through no fault of his own. Consequently, the Court agrees with Judge
Purcell’s conclusion that Respondent’s Motion to Dismiss based upon Petitioner’s failure
to exhaust state remedies should be denied, as “a finding of nonexhaustion and a
dismissal of the action without prejudice to the completion of administrative and state
judicial remedies would be futile.” Doc. No. 17, at 14 (citation omitted).
For the foregoing reasons, the Report and Recommendation entered by Magistrate
Judge Purcell on May 8, 2014 is ADOPTED. Respondent’s Motion to Dismiss is
DENIED.
IT IS SO ORDERED this 4th day of August, 2014.

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