- 1 - UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JEREMY PINSON, Petitioner - Appellant,

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

ORDER & JUDGMENT *

Before LUCERO , TYMKOVICH , and PHILLIPS , Circuit Judges.

Jeremy Pinson, a federal prisoner, is no strange r to our court. In this case, he appeals the denial of his application for habeas reli ef 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 repo rts and various sanctions. On appeal, Pinson argues that the district court prematurely di smissed 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 assi stance 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 pr ecedent, except under the doctrin es 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. FILED United States Court of Appeals Tenth Circuit 

### March 10, 2015 Elisabeth A. Shumaker Clerk of Court- 2 - report and erred when it failed to rule on his motion to appoin t counsel. We disagree with Pinson’s arguments for that incident report. In addition, Pinson claims that the district court erred in conclu ding that he failed to exhaust his administrative remedies for two of the disciplinary inci dent reports claims. Because the district court did not resolve dis puted factual issues regarding these claims and failed to address Pinson’s hearsay ar gument, we must reverse and remand the dismissal of Pinson’s claims related to th ose 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 issu es 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 a nd 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 me mber with bodily harm when officers were transferring- 3 - Pinson from his cell to another area for recr eation time. For this incident, Pinson forfeited another 14 days’ good-conduct time. An inmate who incurs sanctions—as Pins on 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 wh ere the inmate is incarcerated. 28 C.F.R. § 542.14 (2010). Inmate s who receive an unsatisfactory resolution can appeal that decision to th e Regional Director of the Bu reau of Prisons by completing a BP-10 form. See 28 C.F.R. § 542.15(a). But inmates can also skip th e BP-9 step and appeal a DHO decision directly to the Region al 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 tw o 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 inst itutional or regional levels. For IR 2451286 and IR 2451280, Pinson completed all three leve ls of appeal by filing BP-9, BP-10, and BP-11 forms. Before the National Director c ould 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 distri ct 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 uni t counselor at ADX Florence had refused to- 4 - provide him with the appropria te forms for appeal because Pinson had not yet received DHO reports. Pinson later filed a motion asking the district c ourt 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 2458 043, 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 th e three DHO reports in question. Warden Berkebile also stated that th e 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 th at the BP-10 or BP-11 forms require. Finally, the Warden provided a declara tion from Pinson’s unit counselor, Darron Foster, who stated that he keeps reco rds showing when inmates have pursued administrative remedies. But Foster also decl ared 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 provi de Pinson an appeals form. Even so, for the incident reports in IR 2458043 and IR 24452 24, Foster stated that, for each incident report, “a copy of the DHO report, including the written fi ndings and conclusions, [was] provided to [Pinson] .” (R. at 141–42). In support, Foster attached the DHO reports to his- 5 - 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 h earing officer in that matter. In response, Pinson contended that the couns elor’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 st ated that Pinson “did not provide a copy of the DHO report [he wished] to ap peal.” (R. at 190, 192). Pinson also argued that Foster’s declaration about Pinson’s receipt of the DHO reports was impr oper hearsay because Foster’s statement was not ba sed on personal knowledge. The district court dismissed without prejudi ce 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 e xhaustion 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 reject ed 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 twen ty 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. Becau se those reports resulted onl y in the temporary loss of- 6 - commissary and telephone privileges, Pinson could not challenge those reports under § 2241, which exists to challe nge the conditions of confinemen t, including the length of a sentence. The court concluded that even if Pi nson’s claim challenged the conditions of his confinement, the loss of thes e privileges did not impermissi bly 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 cour t 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 fo r this IR and dismis sed his claims. Pinson timely appealed.

DISCUSSION We begin by briefly addressing jurisdiction. After Pinson filed hi s § 2241 petition, the Bureau of Prisons transferred Pinson from ADX Florence to MCFP Springfield (Missouri) for psychiatric evaluation. Beca use of this transfer, Pinson’s immediate physical custodian is no longer within the dist rict court’s jurisdiction. But the District of Colorado acquired jurisdiction wh en Pinson filed hi s habeas petition while incarcerated at ADX Florence. Pinson’s transfer does no t defeat that initial jurisdiction. Rumsfeld v. Padilla , 542 U.S. 426, 4 40–41 (2004) (citing Ex parte Endo , 323 U.S. 283, 304–06- 7 - (1944)); see also Griffin v. Ebbert , 751 F.3d 288, 290–91 (5th Cir. 2014) (stating that “[j]urisdiction attached on [p etitioner’s] initial filing for ha beas corpus relief, and it was not destroyed by the transfer of petitione r 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 Ci r. 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 e rred 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. Sp ecifically, Pinson believes th at the district court should have awarded him damages and ordered Warden Berkebile to transfer him from solitary confinement at ADX Florence to a less restri ctive 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 violati on in connection with his placement in- 8 - 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 g ood conduct time; rather, he challenged the form of the hearing leading to the petitione r’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 cour t considered a § 2241 pe tition moot when a prisoner completed an imposed term of administrativ e segregation before filing a § 2241 petition. Medberry , 351 F.3d at 1053–54. Because of his behavior lead ing to IR 2399367, Pinson lo st 14 days of good conduct time, 15 days of disciplinary segregation, an d 60 days of full co mmissary and telephone privileges. Nothing in the D HO report for this incident ex tends Pinson’s confinement at ADX Florence. We see nothing from Pinson c ontesting that he has not already completed the segregation and the telephone/commissar y 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 24 51286 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).- 9 - 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 distri ct 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 prer equisite to federal ha beas 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 narr ow exception to the exhaustion requirement applies if a petitioner can de monstrate that exhaustion is futile.” Garza , 596 F.3d at 1203. Inmates seeki ng 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 sufferin g sanctions (including loss of good-conduct time) because of discipline reports must comp lete a regional appeal and a national appeal. See 28 C.F.R. §§ 542.14(a), 542.15(a). “The burden of showing ex haustion rests on the petitioner in federal habeas corpus actions.” Clonce v. Presley , 640 F.2d 271, 273 (10th Cir. 1981).- 10 - 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 po licy by refusing to provide Pinson with the reque sted 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 cas e, Pinson argued that the di strict 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 Fo ster 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 note d an affidavit that Pinson filed averring that Foster denied his request for BP-10 forms because Pinson had not ye t 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 beca use 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 Ap pellant 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 provid e [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 Fost er’s statement that Pinson had received the- 11 - 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 dism issal of Pinson’s claims relating to IR 2458043 or IR 2445224. The record shows unre solved issues of fact regarding whether prison officials impaired Pinson’s attempt to exhaust administrative remedies by refusing to provide him with th e appropriate forms. See Little v. Jones , 607 F.3d 1245, 1250 (10th Cir. 2010) (“Where prison officials prevent, th wart, 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 exhaus t.”). On remand, the district court should resolve this factual dispute an d Pinson’s hearsay challenge.

Pinson’s Motion to Appoint Counsel Finally, Pinson argues that the district c ourt abused its discre tion when it dismissed his case without resolving his motion seeki ng 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. Becau se we are remanding two of Pinson’s claims for further consideration, the di strict court should al so address Pinson’s motion for counsel on remand. We do no t express any opinion about the ultimate- 12 - merits of Pinson’s claims, nor do we express any opinion ab out 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 furthe r consideration the dismissal of Pinson’s clai ms arising from IR 2458 043 and IR 2445224.

ENTERED FOR THE COURT

Gregory A. Phillips Circuit Judge