Quintana-Navarette v. Garcia

FILED
United States Court of Appeals
Tenth Circuit
January 22, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JUAN QUINTANA-NAVARETTE,
Petitioner-Appellant,
v. No. 09-1330
RENE G. GARCIA, Warden, (D.C. No. 09-cv-00378-ZLW-BNB)
(D. Colo.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
Juan Quintana-Navarette, seeking to proceed in forma pauperis, filed a pro
se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 which the
*
This order and judgment is not binding precedent, except under the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.
district court ultimately dismissed without prejudice for failure to exhaust
administrative remedies. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,
we AFFIRM the district court’s dismissal of Quintana-Navarette’s petition and
GRANT Quintana-Navarette’s Motion for Leave to Proceed in forma pauperis.
I
Quintana-Navarette is incarcerated at the Federal Correctional Institution in
Englewood, Colorado (“F.C.I. Englewood”) where he is serving a 120-month
sentence for conspiring to distribute or possess with intent to distribute over 1000
kilograms of marijuana in violation of 21 U.S.C. § 846(a)(1). His projected
release date with good time credit is May 22, 2014.
On February 24, 2009, Quintana-Navarette filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court
for the District of Colorado. Quintana-Navarette’s petition named K. Johnson,
the acting warden at F.C.I. Englewood, as Respondent and alleged that the Bureau
of Prisons (“BOP”) has wrongfully denied him (1) good time credits that he has
earned through participation in certain BOP educational programs, and (2) a
placement at a federal prison camp. At the district court’s direction, Johnson
filed Preliminary and Supplemental Responses to Quintana-Navarette’s petition,
limited to the affirmative defense of failure to exhaust administrative remedies.
Quintana-Navarette filed a Reply and Supplemental Reply to Johnson’s
Responses. Ultimately, the district court dismissed Quintana-Navarette’s petition
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without prejudice for failure to exhaust his administrative remedies. Quintana-
Navarette then filed a Fed. R. Civ. P. 59(e) Motion for Reconsideration which the
district court denied. On appeal, Quintana-Navarette argues that the district
court’s dismissal of his petition was in error because (1) he has exhausted his
administrative remedies, and/or (2) his petition is ripe for review even in the
absence of exhaustion.
II
“We review the district court’s dismissal of a § 2241 habeas petition de
novo.” Broomes v. Ashcroft, 358 F.3d 1251, 1255 (10th Cir. 2004). Because
Quintana-Navarette’s pleadings were filed pro se, we construe them liberally. See
Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
While § 2241 does not contain an express exhaustion requirement, we have
held that exhaustion of administrative remedies is considered a prerequisite to the
filing a federal habeas corpus petition pursuant to § 2241. See Williams v.
O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). Further, the
exhaustion requirement is satisfied only through proper use of the available
administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). An
inmate seeking to file a § 2241 habeas petition exhausts his or her administrative
remedies by complying with the Bureau of Prisons’ (“BOP”) Administrative
Remedy Program which is set forth in 28 C.F.R. §§ 542.10-.19. According to the
terms of this program, an inmate seeking relief is generally required to begin by
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attempting to resolve his or her complaint informally by submitting a Request for
Informal Resolution, also known as a BP-8, to his or her Correctional Counselor.
See 28 C.F.R. § 542.13(a). If the inmate is not satisfied by the Correctional
Counselor’s response to his or her BP-8, the inmate may then file a formal
Request for Administrative Remedy, or BP-9, with the warden of the institution
where he or she is confined. See id. § 542.14(a). If the inmate is dissatisfied
with the warden’s response to the BP-9, he or she may then file a Regional Office
Administrative Remedy Appeal, or BP-10, with the regional office of the BOP.
See id. § 542.15(a). And finally, if the inmate is still dissatisfied, he or she may
file an Administrative Remedy Appeal, or BP-11, with the National Inmate
Appeals Administrator in Washington, D.C. See id.
During the course of the process, “[a]n inmate may not raise . . . issues not
raised in . . . lower level filings,” or “combine Appeals of separate lower level
responses.” Id. § 542.15(b)(2). Accordingly, inmates must progress through the
BOP Administrative Remedy Program in lockstep. Because, however, the BOP
does not begin to track an inmate’s actions until he or she has submitted a formal
Request for Administrative Remedy, or BP-9, see ROA Vol. 1 at 49 (¶ 6), it is
incumbent upon an inmate seeking to submit a BP-9, to demonstrate that he or she
has filed a Request for Informal Resolution, or BP-8, or that this requirement has
been excused pursuant to one of the exceptions set forth in 28 C.F.R. § 542.13(b).
According to BOP records submitted as part of the record on appeal,
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Quintana-Navarette has filed seven requests for administrative remedies, four of
which are relevant to the issues he raises in his § 2241 petition. Two of the four
relevant requests that the BOP has received from Quintana-Navarette were
Requests for Administrative Remedies, or BP-9s. These requests were received
by the Administrative Remedy Clerk on October 27, 2008 and January 6, 2009,
and assigned Numbers 513411-F1 and 521420-F1, respectively. The BOP
ultimately rejected both of these BP-9s because Quintana-Navarette failed to
provide evidence that he had tried to informally resolve his complaints—by filing
BP-8s—before filing them. See ROA Vol. 1 pp. 52 (¶ 16), 53 (¶ 18), 65-66. The
two other relevant requests that the BOP received from Quintana-Navarette were
appeals from the rejection of his first BP-9—513411-F1—and came in the form
of: (1) a Regional Office Administrative Remedy Appeal, or BP-10; and (2) an
Administrative Remedy Appeal, or BP-11. The BOP rejected both of these
appeals, again based on Quintana-Navarette’s failure to file a BP-8 at the
institutional level.
A
On appeal, Quintana-Navarette first contends that the district court erred in
finding that he has not exhausted his administrative remedies because he alleges
that he did seek to resolve his complaints informally before filing the relevant
formal requests. In support of this position, Quintana-Navarette provides copies
of several “cop-out” forms that he alleges he submitted to prison staff between
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April and October of 2008, as well as unsigned copies of two Request for
Informal Resolution forms, or BP-8s, that he alleges he submitted to BOP staff in
October of 2008. According to Quintana-Navarette, because he did not receive a
response to these documents, he was entitled to move forward with the
aforementioned formal requests and appeals. See Aplt. Op. Br. at 9 (referencing
28 C.F.R. § 542.18 which notes that at each level of BOP review, “[i]f 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.).
And because the staff at F.C.I. Englewood did not provide rejection notices to
these informal requests until after the deadline to file formal requests had passed,
the only proof of compliance he could offer was unsigned copies of these
documents. Finally, Quintana-Navarette contends that his ability to file the
aforementioned formal requests is prima facie evidence that he submitted the
required informal requests because “[t]he staff at the institution would not have
given the forms he requested [BP-9s] had he not demonstrated a need for them[,]
i.e., his having already submitted the pre-requisite form.” Id. at 10.
Quintana-Navarette’s argument is unavailing. To begin, “cop-outs” are not
considered part of the BOP’s administrative remedy program and according to
BOP staff they are not “the form inmates are required to use to seek informal
resolution of their complaints prior to filing a formal BP-9.” ROA Vol. 1 at 50
(¶10). Further, even if the unsigned informal requests are the only physical
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evidence that Quintana-Navarette can provide in support of his contention that he
in fact submitted them, he offers no corroborating evidence, such as the name of
the individual to whom they were submitted, to support this position. Cf.
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992) (noting that
even though pro se filings are construed liberally, “the court should not assume
the role of advocate, and should dismiss claims which are supported only by
vague and conclusory allegations”). And finally, Quintana-Navarette’s
submission of the relevant formal requests is not prima facie evidence of his
submission of the required informal requests because according to BOP Program
Statement P1330.16, even if an inmate “refuses to present a request informally,
staff should provide the form for a formal request.” ROA Vol. 1 at 106. In sum,
the district court did not err in concluding that Quintana-Navarette failed to
exhaust his administrative remedies.
B
Quintana-Navarette’s final argument on appeal is that because he has
demonstrated a lack of integrity in the administration of the BOP’s administrative
remedy process at F.C.I. Englewood, his § 2241 petition is ripe for review even in
the absence of exhaustion. Once again, Quintana-Navarette’s argument is without
merit because, as previously noted, exhaustion is a prerequisite to the filing of a §
2241 habeas petition, see Williams, 792 F.2d at 987, and Quintana-Navarette cites
no legal authority which recognizes an exception to this rule based on the
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integrity of the administration processes at an individual facility.
III
We AFFIRM the district court’s dismissal of Quintana-Navarette’s § 2241
habeas petition and GRANT Quintana-Navarette’s Motion for Leave to Proceed in
forma pauperis.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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