IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02664-BNB

DARIAN L. HUNTER,

Applicant,

v.

J. WANDS, Warden, Federal Correctional Institution (F.C.I.), Florence,

Respondent.

ORDER OF DISMISSAL

Applicant, Darian L. Hunter, is a prisoner in the custody of the United States

Bureau of Prisons (“BOP”). He was incarcerated at the Federal Correctional Institution

in Florence, Colorado, when he initiated this action by filing pro se an application for a

writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. #1). According to a notice of

change of address Mr. Hunter filed on January 13, 2012, he has been released to a

community corrections facility.

On November 21, 2011, Magistrate Judge Boyd N. Boland ordered Respondent

to file a Preliminary Response limited to addressing the affirmative defense of

exhaustion of administrative remedies if Respondent intends to raise that defense in this

action. On December 14, 2011, Respondent filed a Preliminary Response (Doc. #16)

arguing that this action should be dismissed for failure to exhaust administrative

remedies. Mr. Hunter has not filed a reply to Respondent’s Preliminary Response

despite being given an opportunity to do so.

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The Court must construe the application liberally because Mr. Hunter is not

represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an

advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated

below, the Court will dismiss the action.

Mr. Hunter asserts two claims for relief in the application. He first claims that he

has been denied a liberty interest because the BOP has failed to credit his sentence

with time he spent in custody following his arrest. Mr. Hunter specifically alleges that he

should receive credit against his sentence for the time period from March 23, 2010, until

August 3, 2010. Mr. Hunter maintains in his second claim that he has been denied due

process because he has been denied adequate time in a re-entry program. As relief

Mr. Hunter asks that his sentence be computed properly and that he be provided more

than three months in a halfway house.

As noted above, Respondent argues that this action should be dismissed for

failure to exhaust administrative remedies. Exhaustion of administrative remedies is a

prerequisite to federal habeas corpus relief pursuant to 28 U.S.C. § 2241. See Williams

v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). The exhaustion requirement

is satisfied through proper use of the available administrative procedures. See

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (discussing exhaustion of administrative

remedies in the context of 42 U.S.C. § 1997e(a)).

The BOP administrative remedy procedure is available to federal prisoners such

as Mr. Hunter. See 28 C.F.R. §§ 542.10 - 542.19. The administrative remedy

procedure allows “an inmate to seek formal review of an issue relating to any aspect of

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his/her own confinement.” 28 C.F.R. § 542.10(a). Generally, a federal prisoner

exhausts administrative remedies by attempting to resolve the matter informally and

then completing all three formal steps by filing an administrative remedy request with

institution staff as well as regional and national appeals. See 28 C.F.R. §§ 542.13 -

542.15.

An inmate has twenty days to appeal to the appropriate regional director and

thirty days to file a national appeal to the BOP Central Office after receiving a response

at the preceding level. “If the inmate does not receive a response within the time

allotted for reply, including extension, the inmate may consider the absence of a

response to be a denial at that level.” 28 C.F.R. § 542.18. “An inmate may not raise in

an Appeal issues not raised in the lower level filings.” 28 C.F.R. § 542.15(b)(2). An

inmate also “may not combine Appeals of separate lower level responses (different

case numbers) into a single Appeal.” Id.

Respondent contends, and Mr. Hunter concedes, that he has not exhausted

administrative remedies for either claim in this action. However, Mr. Hunter contends

that he has not exhausted administrative remedies because administrative remedies

“are not made available to prisoners in the segregated housing unit (SHU).” (Doc. #1 at

2.) He further contends in support of his first claim that “I have written (handwritten)

Inmate Request to Staff (cop-out) to Ms./Mrs. Heim, Mrs, Wersham in records

department over a month ago. We[’]re not provided with the appropriate forms to

exhaust administrative remedies in the Special Housing Unit (SHU).” (Id. at 3.) With

respect to his efforts to exhaust administrative remedies for his second claim, Mr.

Hunter contends that “I filed an Inmate to Staff Request and was provided a response. 

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Then I was denied access to the administrative remedy forms by prison officials.” (Id.) 

Mr. Hunter does not provide specific factual allegations regarding when he requested

the necessary forms to exhaust administrative remedies, what efforts he made to obtain

the necessary forms to exhaust administrative remedies, or who denied him the

necessary forms to exhaust administrative remedies.

The Court is not persuaded by Mr. Hunter’s vague and conclusory assertions that

he has been prevented from exhausting administrative remedies. The BOP

administrative remedy program “applies to all inmates in institutions operated by the

Bureau of Prisons.” 28 C.F.R. § 542.10(b). Furthermore, according to Respondent, Mr.

Hunter managed to file a formal administrative remedy request on August 16, 2011,

while he apparently was housed in the special housing unit because he complained in

that grievance that “access to administrative remedies in not easy in SHU.” (Doc. #16-1

at 4; Doc. #16-2 at 4.) The BOP responded to the formal administrative remedy request

on September 1, 2011, and Mr. Hunter failed to file an appeal. The documentation

submitted by Respondent also demonstrates that Mr. Hunter managed to utilize the

BOP administrative remedy program again in September and October 2011 (see Doc.

#16-2 at 4), even though he alleges in the application, which was filed on October 13,

2011, that he was being denied access to the BOP administrative remedy program.

Because Mr. Hunter was able to utilize the BOP administrative remedy program

during the same time period that he filed the instant action, his vague and conclusory

allegations that he was denied access to the necessary forms to exhaust administrative

remedies for the claims he is raising in this action are not sufficient to demonstrate that

prison officials prevented him from exhausting administrative remedies. Therefore, the

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instant action will be dismissed without prejudice for failure to exhaust administrative

remedies.

Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any

appeal from this order would not be taken in good faith and therefore in forma pauperis

status will be denied for the purpose of appeal. See Coppedge v. United States, 369

U.S. 438 (1962). If Applicant files a notice of appeal he also must pay the full $455

appellate filing fee or file a motion to proceed in forma pauperis in the United States

Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.

P. 24. Accordingly, it is

ORDERED that the habeas corpus application is denied and the action is

dismissed without prejudice for failure to exhaust administrative remedies. It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is

denied.

DATED at Denver, Colorado, this 2nd day of February , 2012.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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