UNITED STATES COURT OF APPEALS
Filed 12/16/96
FOR THE TENTH CIRCUIT
JOHN G. WESTINE, JR.,
Petitioner-Appellant,
v. Nos. 95-1362
&
BUREAU OF PRISONS; W. A. 96-1019
PERRILL, Warden, FCI Englewood, (D.C. Nos. 95-M-1846
&
Respondents-Appellees. 95-S-2445)
(D. Colo.)
ORDER AND JUDGMENT *
Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, ** District
Judge.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Honorable John W. Lungstrum, District Judge, United States District Court
for the District of Kansas, sitting by designation.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument.
Plaintiff John G. Westine, Jr. appeals from orders of the district court
dismissing his petitions for relief filed pursuant to 28 U.S.C. § 2241. We affirm.
Westine filed two consecutive § 2241 petitions. In both, he raised the same
issues regarding his placement in administrative detention. The district court
dismissed both petitions on the grounds Westine had failed to exhaust his
administrative remedies.
The Bureau of Prisons has established a grievance procedure for inmates to
follow by which they may seek formal review of issues relating to their
confinement. See 28 C.F.R. §§ 542.10-542.19. We have held it necessary that
inmates follow the grievance procedure prior to filing suit in federal court in
order to possibly resolve issues, reduce court intrusion into prison
administrations, and provide some fact-finding so that if the matter reaches the
court system, the court will have a starting place for understanding and resolving
the matter. See Brice v. Day, 604 F.2d 664, 666-67 (10th Cir. 1979), abrogated
on other grounds by McCarthy v. Madigan, 503 U.S. 140 (1992). This
requirement may be waived if the inmate can show that requiring exhaustion
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would prejudice his claim, the remedy is inadequate, or the administrative body is
biased. See McCarthy, 503 U.S. at 146-48.
No. 95-1362
Westine filed this petition five days after he had been placed in detention.
Clearly, he had not attempted to exhaust the Bureau of Prisons grievance
procedure before filing this petition. Westine made no showing as to why he
should be excused from following the established procedures. The district court
correctly dismissed this petition.
No. 96-1019
After the district court entered judgment in No. 95-1362, Westine filed
another petition for § 2241 relief. In this petition, Westine raised the same
grounds he raised in the prior petition; however, he asserted he had exhausted his
administrative remedies. The exhibits Westine attached to his petition showed he
had filed a request for administrative relief regarding the fact that his legal mail
was being opened by prison authorities, some of his legal mail was missing, and
he was being denied “legal phone calls” since he had been placed in detention.
The district court again dismissed the action because Westine had failed to
exhaust his administrative remedies regarding the issue raised in his petition. We
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agree that Westine again failed to exhaust his administrative remedies.
The judgments of the district court are AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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