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Reid v. Shartle

United States District Court, D. Arizona

August 17, 2017

Gordon C Reid, Petitioner,
v.
Unknown Shartle, Respondent.

          ORDER

          Bernardo P. Velasco United States Magistrate Judge

         Pending before the Court is Petitioner's Amended Petition under 28 U.S.C. § 2241 by a Person in Federal Custody (Doc. 7). Respondent has filed a Return and Answer (Docs. 26, 27), and Petitioner has filed a Reply (Doc. 34) and an Affidavit in support of his Reply (“Petitioner's Aff.”) (Doc. 35)[1] In accordance with the provisions of 28 U.S.C. §636(c)(1), all parties consented to proceed before a United States Magistrate Judge to conduct any and all further proceedings in this case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 31). For the following reasons, Petitioner's Amended Petition is granted in part and denied in part.

         I. Factual & Procedural Background

         Petitioner Gordon C. Reid is an inmate currently incarcerated at the United States Penitentiary in Coleman, Florida (“USP Coleman”), in service of a 220-month sentence with three years of supervised release for violation of 18 U.S.C. § 1951(a), Interference with Commerce by Threats or Violence. (Answer at 1-2 (citing Answer, Exh. A)). Petitioner's projected release date is February 2, 2022, via good conduct time release. (Id.).

         Since Petitioner was sentenced in February 2008, he has been designated to several BOP facilities throughout the country. (Answer at 2 & Exh. A, Atts. 2, 3). While incarcerated at the USP Tucson, Petitioner filed the instant action raising claims of due process violations, resulting in loss of good conduct time (“GCT”), in connection with ten disciplinary hearings at six institutions between 2008 and 2014. Specifically, Petitioner challenges:

1. Loss of 27 days of GCT arising from a July 29, 2008 incident at USP McCreary (Ground One);
2. Loss of 27 days of GCT arising from an August 4, 2008 incident at USP McCreary (Ground Two);
3. Loss of 27 days GCT regarding an April 15, 2010 incident at USP Terre Haute (Ground Three);
4. Loss of 27 days of GCT arising from an August 31, 2010 incident at USP Terre Haute (Ground Four);
5. Loss of 27 days of GCT arising from a September 22, 2011 incident at USP Pollock (Ground Five);
6. Loss of 27 days of GCT arising from a November 8, 2011 [2] incident at USP Pollock (Ground Six);
7. Loss of 54 days of GCT arising from a May 3, 2013 incident at USP Atwater (Ground 7) (involving two incident reports);
8. Loss of 27 days of GCT arising from a January 10, 2013[3]incident at USP Atwater (Ground Eight); and
9. Loss of 27 days of GCT arising from a June 8, 2014[4] incident at USP Tucson (Ground Nine).

         Petitioner seeks to vacate all findings of the discipline hearing officers (“DHO”) and to restore any and all good time credits. (Amended Petition at 9). Respondent argues that Petitioner failed to exhaust administrative remedies with regard to Grounds One through Eight and that Ground Nine is without merit. Respondent also, alternatively, argues that Grounds One through Eight are without merit as well.

         II. Jurisdiction

         “Federal courts are always ‘under an independent obligation to examine their own jurisdiction, '... and a federal court may not entertain an action over which it has no jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990), overruled in part on other grounds by City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004)). With regard to habeas petitions, federal jurisdiction is dependent upon a proper characterization of the petition. Gay v. Winn, 2009 WL 275324, *2 (D. Ariz. Feb.5, 2009).

         Because Petitioner challenges the manner or condition of the execution of his sentence, Petitioner's claim is properly filed pursuant to ' 2241. See e.g. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (“Habeas corpus jurisdiction is available under 28 U.S.C. sec. 2241 for a prisoner's claims that he has been denied good time credits without due process of law.”), overruled on other grounds by Nettles v. Grounds, 830 F.3d 922, 932 (9th Cir. 2016); see also Nettles, 830 F.3d 922 (discussing types of claims that fall within the core of federal habeas actions). Further, because Petitioner was incarcerated at the Federal penitentiary in Tucson, Arizona, when he filed this action, this Court retains jurisdiction to consider the Amended Petition despite Petitioner's subsequent transfer to FCC Coleman, Florida. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990) (“jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.”) (internal quotation marks and citation omitted).

         III. Exhaustion

         Federal prisoners are generally required to exhaust available administrative remedies before filing a habeas corpus petition pursuant to 28 U.S.C. § 2241. See Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). The failure to satisfy the exhaustion requirement applicable to section 2241 proceedings is not jurisdictional. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54-55 (1995). Thus, where a federal prisoner fails to properly exhaust administrative remedies prior to filing a ' 2241 petition, the district court has discretion to waive the exhaustion requirement and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court. Id.

         The district court may exercise its discretion to waive the exhaustion requirement if the administrative remedy is inadequate, ineffective, or if attempting to exhaust would be futile or cause irreparable injury. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993); United Farm Workers of America v. Arizona Agr. Emp't. Relations Bd., 669 F.2d 1249, 1253 (9th Cir. 1983). Factors weighing in favor of requiring exhaustion include whether: (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct is own mistakes and to preclude the need for judicial review. Noreiga-Lopez v. Ashcroft, 335 F.3d 874, 880-81 (9th Cir. 2003) (citing Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)). See also Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983) (recognizing that requiring exhaustion of administrative remedies “will aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings.”).

         Accordingly, if the petitioner has not properly exhausted his claims, the district court may either “excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court[, ]” Brown, 895 F.2d 535, unless such remedies are no longer available, in which instance the petitioner may have procedurally defaulted on his claims, see Francis, 894 F.2d at 354- 55 & n. 2 (applying procedural default rules to administrative appeals). If a prisoner is unable to obtain an administrative remedy because of his failure to administratively appeal in a timely manner, then the petitioner has procedurally defaulted his habeas corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis, 894 F.2d at 354; Martinez, 804 F.2d at 571). If the claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492 (1986) (cause and prejudice test applied to procedural defaults on appeal); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906-08 (9th Cir. 1986) (cause and prejudice test applied to pro se litigants).

         The BOP has established an administrative remedy process permitting an inmate to seek review of an issue relating to “any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a). The BOP's Administrative Remedy program requires the prisoner to submit a formal written Administrative Remedy request within “20 calendar days following the date on which the basis for the Request occurred.” 28 C.F.R. § 542.14(a)-(b). Where the prisoner seeks to appeal a DHO finding, the formal request is to be submitted directly to the appropriate regional office. 29 C.F.R. § 542.14(d)(2). “An inmate who is not satisfied with the Regional Director's response may submit an Appeal ... to the General Counsel within 30 calendar days of the date the Regional Director signed the response.” 29 C.F.R. § 542.15(a). The time limits may be extended upon a showing of a valid reason for the delay. Id. “Appeal to the General Counsel is the final administrative appeal.” Id.[5]

         Respondent contends that Petitioner failed to exhaust administrative remedies as to each of the incidents reports challenged in Grounds One through Eight. In arguing that Petitioner did not exhaust administrative remedies, Respondent relies upon the declaration of Theresa T. Talplacido, a BOP employee with access to inmate disciplinary records, who states that administrative remedies were not exhausted for Grounds One through Eight. (See Answer, Exh. A at ¶¶6-7).

         A. Grounds One and Two

         Petitioner asserts in his verified Amended Petition that he was unable to exhaust Grounds One and Two because he did not receive a copy of the BP-10 (regional appeal) form with the DHO reports at issue and his subsequent attempts to obtain the forms from BOP officials were unsuccessful thus preventing him from pursuing administrative remedies. (Amended Petition at 11, 12; see also Petitioner's Aff. at ¶¶6-14). Thus, Petitioner does not dispute that administrative remedies were not pursued with regard to these grounds. Instead, he provides his affidavit statement that within a week of the DHO's decision in each case, he “began requesting BP-10 forms, which are required to appeal DHO findings and sanctions with respect to these charges.” (Petitioner's Aff. at ¶4). He was required to request the forms from his unit counselors, which he did until he was “transferr[ed] to FCI Butner SHU on October 15, 2008. . . .” (Id. at ¶6 (“I made requests for BP-10's in writing and in person to my counselor and other staff on a number of occasions, all to no avail.”); see also Id. at ¶5).

         Once it became clear to Petitioner that the lack of response would cause his appeal to be untimely, he requested staff to verify on BOP stationary that he was not at fault for the untimely filing, but these requests were also ignored. (Id. at ¶¶7-9; see also Id. at ¶7 (BOP policy requires such verification for an untimely filing)). Upon his transfer from USP McCreary to FCI Butner on October 15, 2008, he requested Butner staff to provide BP-10 forms and the necessary verification for the untimely filing. (Id. at ¶¶6, 10). Although he ultimately received one BP-10 form, staff informed him that “she would not verify that I was not at fault for missing my filing deadline with respect to [the incidents at issue] because she did not have any personal knowledge of the veracity of my assertions[]” and she advised he obtain the verification from McCreary. (Id. at ¶¶11, 12). Although Petitioner wrote his former counselor at McCreary to obtain the required verification “on at least two occasions”, he never received a response. (Id. at ¶13).

         It is not entirely clear that staff verification for the delay was absolutely required. The regulation in effect at the time indicated: “When the inmate demonstrates a valid reason for delay, these time limits may be extended. Valid reasons for delay include those situations described in § 542.14(b) of this part.” 28 C.F.R. 542.15(a) (2008). In turn, section §542.14(b) specifically required verification only where “a response to the inmate's request for copies of dispositions requested under [28 C.F.R.] § 542.19 of this part was delayed.” 28 C.F.R. § 542.14(b)[6] (2008) (emphasis added). Petitioner states he was delayed due to lack of response to his requests for a BP-10 form, not a disposition.

         In any event, in context of the Prison Litigation Reform Act (“PLRA”) which also requires exhaustion of prisoner claims, the District Court for the District of Arizona has observed that “[t]here is no obligation to exhaust a remedy that is not ‘available.'” Beckhum v. Hirsch, 2010 WL 582095, *8 (D.Ariz. Feb. 17, 2010). “‘If prison employees refuse to provide inmates with those [grievance] forms when requested, it is difficult to understand how the inmate has any available remedies.'” Id. (bracketed text in original) (quoting Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (administrative remedy not available where officials refuse to provide inmate with appropriate grievance forms when requested) and citing Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003); Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002) (where officials thwarted the plaintiff's efforts to exhaust his remedies, the grievance procedure was not “available” with the meaning of §1997(e)(a)); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (a remedy that prison officials prevent a prison from utilizing is not an available remedy under § 1997(e)(a)). That same logic applies here.

         Petitioner has submitted evidence in the form of his verified Amended Petition and his affidavit statement that he requested the necessary forms for filing an appeal and that those requests went unheeded during the time within which the appeal was due.[7] Although Respondent submits Ms. Talplacido's declaration that Petitioner did not pursue administrative remedies, Respondent has not addressed the issue of the availability of forms in 2008 at USP McCreary or FCI Butner, why Petitioner was refused the forms during the timeframe for filing an appeal, or how Petitioner could have exhausted administrative remedies without the necessary forms.

         B. Ground Three

         Petitioner states in his verified Amended Petition that “the DHO Report was issued sans a BP-10 form, . . .” and his “attempts to secure the form and verification from prison officials proved fruitless resulting in forfeiture of his right to appeal.” (Amended Petition at 13-14). However, in his affidavit filed with his Reply, Petitioner states that “upon reviewing my journal, which I did not have access to at the time of filing, I can unambiguously state that the [incident at issue in Ground Three] . . . is among those incidents wherein I did not receive a copy of the DHO report.” (Petitioner's Aff. at ¶23). Petitioner goes on to state that he was unable to appeal the DHO's findings without access to the report. (Id. at ¶24). Because Petitioner provided a different reason in his Reply for failing to exhaust, Respondent did not have the opportunity to respond. However, Respondent's original contention that Petitioner failed to exhaust Ground Three still remains.

         The incident at issue in Ground Three occurred in April 2010 at FCC Terre Haute, Indiana, the DHO hearing was held on June 4, 2010, and the DHO report was signed on October 25, 2010. (Answer, Exh. A, Att. 9 at 1-3). By the time the DHO report issued, Petitioner had already transferred to USP Pollock and the DHO report reflects that on October 25, 2010, it was sent to “USP Pollock . . . inmate copy to be delivered to inmate [/] Central File copy to Unit Team.” (Id. at 3).

         Petitioner submits a regional appeal dated October 22, 2010, indicating that he was appealing without a DHO report because his requests at USP Pollock (where he was housed at the time he filed the appeal) and USP Terre Haute (where the incident and DHO hearing occurred) went unanswered. (Petitioner's Aff., Exh. 7 (Doc. 35 at 37)). He requested reversal of the findings, claiming self-defense and that the DHO should have viewed the video. (Id.). The print out regarding administrative remedies submitted by Respondent, (titled “Administrative Remedy Generalized Retrieval”) does not reference an appeal received in October or November 2010. (See Answer, Exh. A, Att. 7). The form submitted by Petitioner bears no markings indicating it was received by the regional office. (See Petitioner's Aff., Exh. 7 (Doc. 35 at 37)).

         The regulations governing appeals were amended during the time period at issue.Prior to June 18, 2010, which encompasses the date of the incident and the DHO hearing, the pertinent regulation stated:

At the time the . . . Discipline Hearing Officer gives an inmate written notice of its decision, the . . . DHO shall also advise the inmate that the inmate may appeal the decision under the Administrative Remedy Procedures (see part 542 of this chapter). . . . The inmate should forward a copy of the DHO report or, if not available at the time of filing, should state in his appeal the date of the DHO hearing and the nature of the charges against the inmate.

         28 C.F.R. §542.19 (in effect prior to June 18, 2010). However, after June 18, 2010, when Petitioner received the DHO report, the regulations no longer contained these specific requirements for DHO appeals. See 28 C.F.R. § 542.14 (effective as of June 18, 2010).

         Upon a reading of the regulation in effect prior to June 18, 2010, it is reasonable that an inmate would believe that the appeal period was not triggered until after the DHO gave the inmate “written notice of its decision” and informed the inmate of his appeal rights. By the time the DHO report issued some four months after the hearing, Petitioner had been transferred to USP Pollock. While the DHO report indicates that it was intended to be delivered to Petitioner at USP Pollock, there is no showing whatsoever that it was delivered to him; to the contrary, Petitioner submits his affidavit statement avowing that it was not. Nonetheless, the record reflects that Petitioner did not exhaust his Ground Three claim.

         C. Ground Four

         Petitioner asserts in his verified Amended Petition that he could not appeal the sanctions at issue in Ground Four because he never received a copy of the DHO report. (Amended Petition at 15; see also Petitioner's Aff. at ¶30 (stating same)). Petitioner also asserts that his attempts to obtain the report were unavailing. (Amended Petition at 15).

         The record reflects that the DHO hearing was held on October 11, 2010 and the report issued on October 12, 2010. (Answer, Exh. A, Att. 10 at 6-8). Although a box is checked indicating that a copy of the report was given to the inmate, the line in the report indicating the date and time the report was delivered to Petitioner is blank (see Id. at 8), which supports Petitioner's statement that he did not receive it.

         By October 2010, the regulations in effect did not have language requiring that the inmate submit a copy of the DHO report with his appeal. Petitioner had 20 days from the date that he was sanctioned to file an appeal. Respondent faults Petitioner with failing to “file[] an Administrative Remedy to allow BOP to promptly rectify the situation, rather than waiting years to file the Petition claiming not to have received them.” (Answer at 27). However, Petitioner submits a regional appeal dated December 5, 2010 indicating that he had been unable to obtain a copy of the DHO report despite requests to counselor Nichols and the DHO. (Petitioner's Aff., Exh. 8 (Doc. 35 at 39)). He also challenged the lack of video review because the video would have shown that he did not attempt to assault anyone, and he challenged the DHO's refusal to grant his request to call unidentified witnesses who would have testified to his innocence. (Id.). He requested reversal of the DHO's findings. (Id.). The print out regarding administrative remedies submitted by Respondent does not reference an appeal received in December 2010. (See Answer, Exh. A, Att. 7 at 7). The form submitted by Petitioner bears no markings indicating it was received by the regional office. (See Petitioner's Aff., Exh. 8 (Doc. 35 at 39)).

         Petitioner also filed an administrative grievance on March 18, 2013 complaining about lack of access to administrative remedies at USP Pollock. (Answer, Exh. A, Att. 7 at 14). The grievance was denied as untimely (id.) and his appeal was denied as follows: “provide staff verification that you are not responsible for the untimely filing of this appeal.” (Id. at 15).

         Together with his Answer, Respondent submits the Declaration of Nelson Ortiz, Unit Manager at FCC Coleman where Petitioner is currently imprisoned, stating that on September 4, 2015, Ortiz “personally handed” Petitioner a copy of the “incident reports” for the August 31, 2010 incident at issue in Ground Four. (Answer, Exh. B at ¶2; see also Answer, Exh. B, Att. 1 (attachments include the DHO report as well)). Respondent does not discuss the impact, if any, of having delivered the reports to Petitioner at this stage in the proceeding and Petitioner does not indicate in his Reply that he has begun to exhaust administrative remedies now that he has the DHO report.

         D. Grounds Five and Six

         Petitioner asserts in his verified Amended Petition that he never received a copy of the DHO reports with regard to Grounds Five and Six and his attempts to obtain the reports were unsuccessful, which “cause[ed] Petitioner to forfeit his right to appeal.” (Doc. 7 at 16, 17). Consistent with Petitioner's assertion, Respondent has been unable to locate a copy of the DHO reports. (See Answer, Exh. A at ¶9).

         1. Ground Five

         With regard to Ground Five, Petitioner states in his Affidavit that the DHO told him he would have 20 days from the date the report issued to appeal. (Petitioner's Aff. at ¶47).

         Ground Five involved a charge of assault involving another inmate on September 22, 2011. With his Affidavit, Petitioner submits a BP-10 form (regional appeal) dated June 5, 2012 indicating that in October 2011 at USP Pollock, he appeared for a DHO hearing for fighting with an inmate. (Petitioner's Aff., Exh. 1 (Doc. 35 at 20)). He objected to rejection of his request for video review, and to the DHO crossing out another inmate's name and writing down Petitioner's name instead as the person who assaulted the other inmate, whom he identified by name. (Id.). Petitioner also stated that he never received a copy of the DHO Report and “[w]hile I have been repeatedly informed by various staff that I would be receiving the DHO Report, it has not come to fruition. I request the findings be reversed, and the Incident Report expunged.” (Id.). The “Administrative Remedy Generalized Retrieval” print out, submitted by Respondent, indicates that an appeal of an “IR for fighting” was received on June 18, 2012. (Answer, Exh. A, Att. 7 at 10). The appeal was rejected under the following codes: DHO, MLT, UTR and OTH. (Id.). The rejection also stated: “which incident report are you appealing? You must provide staff documentation on BOP letterhead you haven't received DHO Report and delay not your fault.” (Id.). Petitioner then filed a central office appeal, stating among other things, that he was unable to supply the requested information because he had not been provided with it. (Petitioner's Aff., Exh. 2 (Doc. 35 at 22)). Petitioner pointed out that he provided the name of the person he was charged with assaulting and the approximate date. (Id.). He also stressed that he could not mail the appeal within 20 days because he never received the DHO report and he “cannot provide staff documentation as staff Nichols, Smith, [illegible], Fotenot, and others ignore my request or are otherwise nonresponsive to my request for such documentation. As for which incident report, I'm appending, see attachment 1.” (Id.). The Central Office rejected the appeal indicating: “UTR”, “OTH”, and “You must provide staff verification on letterhead to the region for your untimely filing.” (Answer, Exh. A, Att. 7, 11). Petitioner contends that his “appeal was denied because the DHO report[8], which I was unable to obtain from prison officials was not appended to the BP-10.” (Petitioner's Aff. at ¶86).

         The record also reflects that a grievance was received at USP Atwater on March 18, 2013 when Petitioner was imprisoned at that prison. (Answer, Exh. A, Att. 7 at 13). The abstract indicates “to[o] many issues to list/from FCI Pollock[]”. (Id.) The grievance was rejected because: “you should have filed in Sept[ember] when you first arrived[, ] you list to[o] many issues on your BP-9, one per from [sic]. Compensation must be via a tort claim.” (Id.).

         Another grievance received at Atwater on March 18, 2013 raised the issue of “no access to admin remedies while at Pollock[.]”[9](Id. at 14). The grievance was rejected as untimely: “you should have filled [sic] in September when you arrived at Atwater. You have had sufficient time to request forms from your unit team.” (Id.). An appeal received at the regional level on April 1, 2013, regarding Petitioner's claim that he had “no access to admin remedies while at Pollock” was rejected with the direction that he should “provide staff verification that you are not responsible for the untimely filing of this appeal.” (Id. at 15). The Central Office “concur[red] with region and institution's rationale for rejection.” (Id. at 20)

         2. Ground Six

         On April 1, 2013, Petitioner submitted an administrative grievance (BP-9 form) at USP Atwater referencing a December 2011 incident report he received at FCI Pollock for fighting with another inmate. (Petitioner's Aff., Exh. 3 (Doc. 35 at 24)). He stated that he had yet to receive the DHO report despite “numerous ‘Request[s] to Staff'”, and that he was unable to obtain staff verification that he had not received the DHO report to excuse his untimely appeal. (Id.). He also stated that he had been informed by “staff that the time to appeal would be tolled from the time I received the DHO report, the time of receipt notwithstanding[].” (Id.). He stated that he made requests for administrative remedy forms. (Id.). “From Sept. 2012 to March 2013, I was similarly unable to obtain sufficient access to Ad. Remedy. Request my right to appeal to be reinstated, or compensation in the amount of $30K.” (Id.).

         The records submitted by Respondent also reflect a grievance received at USP Atwater on April 15, 2013, conveying Petitioner's complaints about not receiving DHO reports at FCI Pollock. (Answer, Exh. A, Att. 7 at 16). The grievance was rejected because: (1) Petitioner did not provide a copy of the DHO report he wished to appeal or identify the charges and date of DHO action; and (2) the request was untimely as it was not received within 20 days of the event complained about. (Petitioner's Aff., Exh. 3 (Doc. 35 at 26)). Petitioner could resubmit his appeal in proper form within 10 days from the date of the rejection notice. (Id.). Petitioner was also informed that he “did not state any req[]uest in part A of the BP-9 Form. Be specific with your grievance.” (Id.; see also Id. at 25 (Amended Petitioner received the response on May 13, 2013); Answer, Exh. A., Att. 7 at 16)) Contrary to the response, the record reflects that Petitioner did state a specific request for relief in his grievance. (See Petitioner's Aff., Exh. 3 (Doc. 35 at 24) (requesting right to appeal be reinstated and $30, 000)).

         On April 29, 2013, Petitioner completed a regional appeal, essentially restating the claims raised in his original grievance, but this time he included the report number. (Petitioner's Aff, Exh. 4 (Doc. 35 at 28)). He also reasserted his request for his right to appeal to be reinstated or compensation in the amount of $30K.” (Id.). The regional office rejected the appeal and directed Petitioner to “follow the instructions given to you at the institution.” (Id. (Doc. 35 at 29); see also Answer, Exh. A, Att. 7 at 18). Petitioner raised the same claims before the Central Office, which issued a rejection stating that Petitioner filed his request or appeal to the wrong level: “You should have filed at the institution, regional office, or central office level.” The Central Office went on to “concur with lower levels [sic] rationale for rejection. Follow directions provided on previous rejection notices. Submit appeal in proper form to institution.” (Petitioner's Aff., Exh. 5 (Doc. 35 at 32); see also Answer, Exh. A, Att. 7 at 23).

         E. Ground Seven

         Petitioner asserts in his verified Amended Petition that the DHO informed him that he would have 20 days to appeal the decision from the date the DHO report issued. (Amended Petition at 19). The DHO hearing occurred on June 6, 2013 and involved two separate incidents. (Id.). Petitioner never received a copy of either DHO report. (Id. at 19-20).

         While Respondent argues that Petitioner should have invoked the administrative remedy process to raise the issue that he never received the DHO reports, Respondent also includes with his Response the Declaration of FCC Coleman Unit Manager Nelson Ortiz that the “incidents reports” related to Ground Seven were delivered to Petitioner on September 4, 2015, subsequent to the filing of the instant Amended Petition. (See Answer, Exh., B at ¶2; see also id., Att. 2 and 3 (reports provided to Petitioner included the DHO reports, which were issued on July 29, 2013)). Respondent does not mention in his Answer that the reports have now been delivered to Petitioner or the impact, if any, of having delivered the reports to Petitioner at this stage in the proceeding.

         Petitioner does not indicate in his Reply that he has begun to exhaust administrative remedies now that he has the reports. Petitioner does submit a regional appeal dated September 29, 2013, stating that he had not received a copy of the DHO report(s) despite repeated requests and that he was challenging the DHO's findings in light of the medical evidence. (Petitioner's Aff., Exh. 9 (Doc. 35 at 41)). He also objected to not being able to watch the alleged victim testify. (Id.). Petitioner requested that the DHO findings be reversed. (Id.). The appeal is not readily apparent on Respondent's Administrative Remedy Generalized Retrieval forms at Exhibit A, Attachment 7. The appeal form submitted to the Court by Petitioner does not reflect that it was received by the regional office. (See Petitioner's Aff., Exh. 9 (Doc. 35 at 41)).

         F. Ground Eight

         On May 2, 2013, DHO Lorance at USP Atwater completed a DHO report for the incident at issue in Ground Eight. (Answer, Exh. A, Att. 16 at 20-23). On May 20, 2013, Petitioner appealed arguing that the report mistakenly reflected that B. Daniels was his staff representative, he was not given the name of the accusing officer who did not appear at the hearing, and full review of the video would support his claims of innocence. (Answer, Exh. A, Att. 17 at 1-2). On August 21, 2013, the regional director issued a memorandum to the Warden at USP Atwater directing the DHO to conduct a rehearing or, alternatively, to obtain Petitioner's signature waiving his right to staff representation, because the record indicated that Petitioner did not request a staff representative and B. Daniels who was indicated as the staff representative was prohibited from serving as staff representative because he participated on the Unit Discipline Committee. (See Id. at 3).

         Petitioner was informed on August 20, 2013, in pertinent part:

We are directing the DHO to conduct a rehearing in this matter. After receipt of the final report, should you wish to further appeal this action, you must first submit your appeal to the appropriate level (…regional office level for DHO actions). You should also include a copy of this response with your appeal to ...

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