Pinson v. Berkebile

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 10, 2015

Elisabeth A. Shumaker
Clerk of Court
JEREMY PINSON,

Petitioner - Appellant,
No. 14-1336
v. (D.C. No. 1:14-CV-00410-LTB)
(D. Colo.)
DAVID BERKEBILE,

Respondent - Appellee.

ORDER & JUDGMENT*

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.

Jeremy Pinson, a federal prisoner, is no stranger to our court. In this case, he appeals

the denial of his application for habeas relief under 28 U.S.C. § 2241. He asserted that

prison officials violated his due process rights during five separate disciplinary

proceedings leading to separate incident reports and various sanctions. On appeal, Pinson

argues that the district court prematurely dismissed his claim regarding a third incident

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not be of material assistance in the determination
of this case. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
This order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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report and erred when it failed to rule on his motion to appoint counsel. We disagree with

Pinson’s arguments for that incident report.

In addition, Pinson claims that the district court erred in concluding that he failed to

exhaust his administrative remedies for two of the disciplinary incident reports claims.

Because the district court did not resolve disputed factual issues regarding these claims

and failed to address Pinson’s hearsay argument, we must reverse and remand the

dismissal of Pinson’s claims related to those incident reports. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further

consideration.

BACKGROUND

Throughout the first half of 2013, Pinson committed various infractions that yielded

Incident Reports (IR). After an officer issues an incident report, a Discipline Hearing

Officer (DHO) determines sanctions, if any, for that incident. After the DHO determines

sanctions, he prepares a DHO report outlining those sanctions.

For two such incidents, IR 2451286 and IR 2451280, Pinson destroyed prison

property. These incidents resulted in Pinson’s losing commissary and phone privileges for

short periods. In IR 2458043, Pinson threw his food tray at an officer, resulting in his

forfeiting 27 days of good-conduct time. In IR 2445224, Pinson broke a fire sprinkler and

flooded his cell. For this, Pinson forfeited 14 days of good-conduct time. In IR 2399367,

Pinson threatened a staff member with bodily harm when officers were transferring

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Pinson from his cell to another area for recreation time. For this incident, Pinson forfeited

another 14 days’ good-conduct time.

An inmate who incurs sanctions—as Pinson did here—must pursue administrative

remedies before seeking judicial relief. First, an inmate can file a BP-9 form, which is a

formal request for Administrative Remedy, at the institution where the inmate is

incarcerated. 28 C.F.R. § 542.14 (2010). Inmates who receive an unsatisfactory resolution

can appeal that decision to the Regional Director of the Bureau of Prisons by completing

a BP-10 form. See 28 C.F.R. § 542.15(a). But inmates can also skip the BP-9 step and

appeal a DHO decision directly to the Regional Director. When dissatisfied with the

Regional Director’s response, inmates can take a final appeal to the Director of National

Inmate Appeals by filing a BP-11 form. 28 C.F.R. § 542.15(a).

For IR 2399367, Pinson completed the first two levels of appeal. Pinson filed a BP-11

appeal to the National Director but failed to file a timely response, leading the National

Director to deem Pinson’s appeal denied. For IR 2458043 and IR 2445224, Pinson

apparently filed no appeal at either the institutional or regional levels. For IR 2451286

and IR 2451280, Pinson completed all three levels of appeal by filing BP-9, BP-10, and

BP-11 forms. Before the National Director could consider the appeals, Pinson filed the

instant § 2241 action. He alleged that he was denied due process in each of the

disciplinary proceedings and asked the district court to expunge the five IRs, thus

restoring his good conduct time. In arguing that he exhausted his administrative remedies,

Pinson swore in an affidavit that his unit counselor at ADX Florence had refused to

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provide him with the appropriate forms for appeal because Pinson had not yet received

DHO reports. Pinson later filed a motion asking the district court to appoint counsel. The

district court never ruled on Pinson’s motion.

The district court asked Warden Berkebile, the Respondent, to state (1) whether

Pinson had received the DHO’s decisions in IR 2399367, IR 2458043, and IR 2445224;

(2) whether the Bureau of Prisons requires a prisoner to submit or provide a DHO report

before he can receive a BP-10 appeals form; and (3) whether the Unit Counselor refused

to provide Pinson with the appropriate forms for appeal. Warden Berkebile claimed that

Pinson had received a copy of each of the three DHO reports in question. Warden

Berkebile also stated that the Bureau of Prisons does not require prisoners to provide a

copy of a DHO report before requesting forms or appealing. Rather, he said, a prisoner

only needs to include the information that the BP-10 or BP-11 forms require.

Finally, the Warden provided a declaration from Pinson’s unit counselor, Darron

Foster, who stated that he keeps records showing when inmates have pursued

administrative remedies. But Foster also declared that he did “not keep a log book of

administrative remedy/appeal forms provided to inmates” and that he had “no way to

reference when [he] may have provided forms to [Pinson].” (R. at 142). Foster did state

that he could not recall ever refusing to provide Pinson an appeals form. Even so, for the

incident reports in IR 2458043 and IR 2445224, Foster stated that, for each incident

report, “a copy of the DHO report, including the written findings and conclusions, [was]

provided to [Pinson].” (R. at 141–42). In support, Foster attached the DHO reports to his

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affidavit. The DHO report forms end with a box stating “Report delivered to inmate by.”

For IR 2445224, that box is signed “Rhodes,” who was the Discipline Hearing Officer for

that report. (R. at 171). For IR 2458043, we are uncertain whether Rhodes or someone

else signed the delivery box, but Rhodes also served as the hearing officer in that matter.

In response, Pinson contended that the counselor’s statements contradicted the written

reasons given for denying his appeals. In support, Pinson attached copies of the rejections

of his attempts to appeal; these rejections stated that Pinson “did not provide a copy of

the DHO report [he wished] to appeal.” (R. at 190, 192). Pinson also argued that Foster’s

declaration about Pinson’s receipt of the DHO reports was improper hearsay because

Foster’s statement was not based on personal knowledge.

The district court dismissed without prejudice Pinson’s claims relating to IR 2458043

and IR 2445224 because Pinson had failed to exhaust his administrative remedies. It

noted that Pinson had the burden to show exhaustion and that he failed to support his

appeal by providing sufficient information for the appeals coordinator to determine the

basis of his claims. The district court rejected Pinson’s arguments that providing the DHO

report was a prerequisite to appeal and that the counselor failed to provide Pinson with

the appropriate appeals forms. Rather, the district court pointed to the advisement Pinson

received, where Pinson learned he had the right to appeal within twenty days. The district

court did not address Pinson’s hearsay argument.

The district court also dismissed with prejudice Pinson’s claims relating to IR

2451280 and IR 2451286. Because those reports resulted only in the temporary loss of

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commissary and telephone privileges, Pinson could not challenge those reports under

§ 2241, which exists to challenge the conditions of confinement, including the length of a

sentence. The court concluded that even if Pinson’s claim challenged the conditions of his

confinement, the loss of these privileges did not impermissibly deprive him of a liberty

interest because the restricted privileges did not “subject [Pinson] to an atypical and

significant hardship in relation to the ordinary incidents of prison life.” (R. at 211) (citing

Grady v. Garcia, 506 F. App’x 812, 814 (10th Cir. 2013) (unpublished)).

After further briefing, the district court dismissed with prejudice Pinson’s claims

relating to IR 2399367. Warden Berkebile stated that, due to an administrative error and

the passage of time, he would expunge that incident report and restore the 14 days of

good conduct time Pinson lost because of that incident. The district court concluded that

Pinson had received the relief he requested for this IR and dismissed his claims. Pinson

timely appealed.

DISCUSSION

We begin by briefly addressing jurisdiction. After Pinson filed his § 2241 petition, the

Bureau of Prisons transferred Pinson from ADX Florence to MCFP Springfield

(Missouri) for psychiatric evaluation. Because of this transfer, Pinson’s immediate

physical custodian is no longer within the district court’s jurisdiction. But the District of

Colorado acquired jurisdiction when Pinson filed his habeas petition while incarcerated at

ADX Florence. Pinson’s transfer does not defeat that initial jurisdiction. Rumsfeld v.

Padilla, 542 U.S. 426, 440–41 (2004) (citing Ex parte Endo, 323 U.S. 283, 304–06
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(1944)); see also Griffin v. Ebbert, 751 F.3d 288, 290–91 (5th Cir. 2014) (stating that

“[j]urisdiction attached on [petitioner’s] initial filing for habeas corpus relief, and it was

not destroyed by the transfer of petitioner and accompanying custodial change”).

With that in mind, we consider the merits of Pinson’s arguments. We review de novo

the district court’s dismissal of a § 2241 habeas petition. Abernathy v. Wandes, 713 F.3d

538, 544 (10th Cir. 2013). Pinson proceeds pro se, so we construe his filings liberally.

Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). But we will not

act as a pro se litigant’s advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Dismissal of IR 2399367

Pinson first argues that the district court erred by dismissing his claims relating to IR

2399367 because, contrary to the district court’s view, he still had an administrative

remedy that he could pursue. Specifically, Pinson believes that the district court should

have awarded him damages and ordered Warden Berkebile to transfer him from solitary

confinement at ADX Florence to a less restrictive facility. Pinson contends that the

district court should have permitted his claims for this incident to continue in order to

undo “the residual effects of a due process violation.” (Appellant’s Br. at 11). In support,

he cites cases from other circuits. See Medberry v. Crosby, 351 F.3d 1049, 1053 (5th Cir.

2003); Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); Krist v. Ricketts, 504 F.2d

887, 888 (5th Cir. 1974) (per curiam). Krist and Bostic offer no support because they do

not deal with expunging an incident report. Krist concerns a petitioner’s seeking habeas

relief for a purported due process violation in connection with his placement in
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administrative segregation. Krist, 504 F.2d at 887. Bostic, in part, concerns a

petitioner’s restoration of good conduct time. But the petitioner there did not

challenge a restoration of good conduct time; rather, he challenged the form of the

hearing leading to the petitioner’s loss of good conduct time. Bostic, 884 F.2d at

1271. Nor does Medberry support Pinson. On the contrary, it supports the district court’s

conclusion. There, the court considered a § 2241 petition moot when a prisoner

completed an imposed term of administrative segregation before filing a § 2241 petition.

Medberry, 351 F.3d at 1053–54.

Because of his behavior leading to IR 2399367, Pinson lost 14 days of good conduct

time, 15 days of disciplinary segregation, and 60 days of full commissary and telephone

privileges. Nothing in the DHO report for this incident extends Pinson’s confinement at

ADX Florence. We see nothing from Pinson contesting that he has not already completed

the segregation and the telephone/commissary restriction period. Accordingly, when

Warden Berkebile restored Pinson’s 14 days of good conduct time, Pinson retained

nothing to challenge about that incident report. The district court correctly dismissed with

prejudice Pinson’s claims concerning IR 2399367.

Dismissal of IR 2451286 and IR 2451280

Pinson does not challenge the district court’s dismissal of his claims related to IR

2451286 and IR 2451280. Therefore, we consider these claims waived. See Headrick v.

Rockwell Int’l Corp., 24 F.3d 1272, 1277–78 (10th Cir. 1994) (White, J., sitting by

designation).
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Exhaustion of IR 2458043 and IR 2445224

Finally, Pinson argues that the district court erred in concluding that he had failed to

exhaust his administrative remedies for IR 2458043 and IR 2445224. He contends that

the district court improperly resolved a factual dispute regarding whether Pinson received

the DHO reports. He also asserts that the district court erred when it failed to consider his

hearsay argument opposing Foster’s declaration that Pinson had received the DHO

reports. Pinson also argues that the district court erred when it concluded that he could

appeal without receiving a DHO report.

Exhaustion of administrative remedies is a prerequisite to federal habeas corpus relief.

Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). An inmate can satisfy the

exhaustion requirement only by properly using available administrative remedies.

Woodford v. Ngo, 548 U.S. 81, 90 (2006). “A narrow exception to the exhaustion

requirement applies if a petitioner can demonstrate that exhaustion is futile.” Garza, 596

F.3d at 1203. Inmates seeking to file § 2241 habeas petitions exhaust their administrative

remedies by complying with the Bureau of Prisons’ Administrative Remedy Program. See

28 C.F.R. §§ 542.14–542.15. Inmates suffering sanctions (including loss of good-conduct

time) because of discipline reports must complete a regional appeal and a national appeal.

See 28 C.F.R. §§ 542.14(a), 542.15(a). “The burden of showing exhaustion rests on the

petitioner in federal habeas corpus actions.” Clonce v. Presley, 640 F.2d 271, 273 (10th

Cir. 1981).

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 Addressing claims that Pinson raised while opposing other incident reports, a separate

panel of this court recently remanded based upon Pinson’s arguments that his unit

counselor at ADX Florence had failed to follow national BOP policy by refusing to

provide Pinson with the requested BP-10 and BP-8 forms until Pinson received a DHO

report. See Pinson v. Berkebile, No. 14-1243, 2014 WL 6892179, at *3 (10th Cir. Dec. 9,

2014) (unpublished). In that case, Pinson argued that the district court relied on Foster’s

hearsay regarding whether Pinson received the DHO reports. Id. He also contended that

there was a factual dispute as to whether Foster refused to provide Pinson with BP-10

forms until Pinson received a copy of the DHO report for that incident. Id.

In No. 14-1243, the panel noted an affidavit that Pinson filed averring that Foster

denied his request for BP-10 forms because Pinson had not yet received the DHO reports.

Id. at *2. Based on this, the panel remanded so the district court could consider this

factual dispute. Id. at *3. The panel also remanded because the district court “apparently

assumed the truth of the notation that ‘D. Rhodes’ delivered the DHO reports to

Appellant . . . without considering either Appellant’s hearsay argument or the factual

dispute between the evidence submitted by Appellant and the evidence submitted by the

government.” Id.

Pinson raises similar arguments here. Just as in No. 14-1243, Pinson filed an affidavit

asserting that Foster “refused to provide [a BP-10 form] until [he] received the DHO

Reports.” (R. at 104). Additionally, after Warden Berkebile submitted Foster’s

declaration, Pinson challenged as hearsay Foster’s statement that Pinson had received the

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DHO reports. Just as it failed to do in No. 14-1243, the district court did not address

Pinson’s allegation that Foster had refused to provide BP-10 forms because Pinson did

not have the DHO reports in hand. See Pinson, 2014 WL 6892179, at *3. The district

court further assumed that Rhodes delivered the DHO reports to Pinson without first

considering Pinson’s hearsay argument or his affidavit.

We cannot affirm the district court’s dismissal of Pinson’s claims relating to IR

2458043 or IR 2445224. The record shows unresolved issues of fact regarding whether

prison officials impaired Pinson’s attempt to exhaust administrative remedies by refusing

to provide him with the appropriate forms. See Little v. Jones, 607 F.3d 1245, 1250 (10th

Cir. 2010) (“Where prison officials prevent, thwart, or hinder a prisoner’s efforts to avail

himself of an administrative remedy, they render that remedy ‘unavailable’ and a court

will excuse the prisoner’s failure to exhaust.”). On remand, the district court should

resolve this factual dispute and Pinson’s hearsay challenge.

Pinson’s Motion to Appoint Counsel

Finally, Pinson argues that the district court abused its discretion when it dismissed

his case without resolving his motion seeking appointment of counsel. We find nothing

in the record showing that the district court explicitly addressed or disposed of

Pinson’s motion for appointed counsel. Because we are remanding two of Pinson’s

claims for further consideration, the district court should also address Pinson’s

motion for counsel on remand. We do not express any opinion about the ultimate

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merits of Pinson’s claims, nor do we express any opinion about how the district court

should rule on Pinson’s motion for counsel.

CONCLUSION

We affirm the district court’s dismissal of Pinson’s claims related to IR 2399367,

IR 2451286, and IR 2451280. We reverse and remand for further consideration the

dismissal of Pinson’s claims arising from IR 2458043 and IR 2445224.

ENTERED FOR THE COURT

Gregory A. Phillips
Circuit Judge

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