Nigro v. Sullivan

• Decision Date: 08 April 1994
• Docket Number: No. 93-55357,93-55357
• Parties: E. Robert NIGRO, Jr., Petitioner-Appellant, v. John SULLIVAN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 990

40 F.3d 990

E. Robert NIGRO, Jr., Petitioner-Appellant, v. John SULLIVAN, Warden, Respondent-Appellee.

No. 93-55357.

United States Court of Appeals, Ninth Circuit.

Submitted April 8, 1994 ^*.

Decided Nov. 4, 1994.

E. Robert Nigro, Jr., pro se.

Michael C. Johnson, Asst. U.S. Atty., Los Angeles, CA, for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before: HUG, WIGGINS, and NOONAN, Circuit Judges.

Opinion by Judge WIGGINS; Dissent by Judge NOONAN.

WIGGINS, Circuit Judge:

FACTS AND PRIOR PROCEEDINGS

E. Robert Nigro is a federal prisoner. During the events relevant to this appeal, Nigro was a pretrial detainee at the Federal Correctional Institute (FCI) at Terminal Island, California. On March 6, 1988, FCI officials required Nigro to provide a urine sample. This sample tested positive for illegal drugs. Prison officials issued an incident report so stating.

Nigro challenged this report under the administrative remedy procedures operative in federal prisons. "The Bureau of Prisons has established an Administrative Remedy Procedure through which an inmate may seek formal review of a complaint which relates to any aspect of his imprisonment.... This procedure applies to all inmates confined in Bureau of Prisons institutions...." 28 C.F.R. Sec. 542.10 (1993). "The ... Warden, Regional Director, and General Counsel are responsible for the operation of the Administrative Remedy Procedure at the institution, regional and central office levels, respectively, and ... [e]stablish[ing] procedures for receiving, reviewing, investigating and responding to complaints or appeals submitted by an inmate...." Id. Sec. 542.11(a)(1).

Under the Administrative Remedy Procedure established by the Bureau of Prisons, a prisoner first complains to the Warden (on a BP-9 form) and may appeal to the Bureau's Regional Director (on a BP-10). If the prisoner is not satisfied with the Regional Director's decision, the prisoner may appeal to the General Counsel's Office (on a BP-11). See id. Sec. 542.14. Appeals must be filed within established time limits. A prisoner must appeal to the Regional Director "within twenty (20) calendar days of the date of the Warden's response" and to the General Counsel's Office "within thirty (30) calendar days from the date of the Regional Director's response." Id. Sec. 542.15. Upon receipt of an appeal, the Warden, Regional Director, or General Counsel's Office must "[a]cknowledge receipt of a complaint or appeal by returning to the inmate a receipt." Id. Sec. 542.11(a)(2). "A complaint or appeal is considered filed when the receipt is issued." Id. Sec. 542.14.

Pursuant to these regulations, Nigro filed a BP-9 form asking that the report regarding the urine test be removed from his record. Two hearings were held at which Nigro appeared and was provided representation. At the second hearing, on May 5, 1988, before the Disciplinary Hearing Officer (DHO), Nigro called no witnesses but did submit theories regarding how the test results could be incorrect. The DHO found that Nigro had tested positive for narcotics as charged and that 60 days segregated confinement was appropriate punishment.

Nigro appealed, on a BP-10 form, to the Regional Director for the Bureau of Prisons. The Regional Director set forth on the BP-10 form his response denying Nigro's appeal and sent the form back to Nigro. The response is dated May 23, 1988. The BP-10 form states: "If dissatisfied with this response, you may appeal to the General Counsel. Your appeal must be received in the General Counsel's Office within 30 calendar days of the date of this response."

Nigro appealed to the General Counsel's Office, on a BP-11 form. Nigro claims he gave his BP-11 form to prison officials on June 21, 1988. The BP-11 was not received in the General Counsel's Office until July 7 On July 29, 1992, Nigro filed a petition for a habeas writ. Nigro challenged the hearing officer's determination that Nigro had used narcotics. On February 5, 1993, the federal magistrate recommended that Nigro's petition be dismissed because Nigro had failed first to present his arguments to the General Counsel's Office. Because the time for presenting such arguments had passed, the magistrate found that Nigro was in procedural default of this administrative remedy. The magistrate also ruled that Nigro had failed to establish cause and prejudice for his default. The district court adopted the magistrate's recommendation. Nigro appealed the dismissal of his petition.

1988, however. Because the form was received over 30 days after the date of the Regional Director's response, no receipt could have been issued to Nigro until that date or later. Nigro's appeal was therefore denied on July 12, 1988, as untimely.

ANALYSIS

A denial of a petition for habeas corpus is reviewed de novo. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1993). "To the extent it is necessary to review findings of fact, the clearly erroneous standard applies." Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991).

I. Procedural Default

Nigro's BP-11 form arrived at the General Counsel's Office well after the thirty day time limit had expired. The district court found that the form was filed late and that the late filing amounted to procedural default of Nigro's administrative remedy, warranting dismissal. We agree with the district court.

Two cases persuade us: Francis v. Rison, 894 F.2d 353 (9th Cir.1990), and Martinez v. Roberts, 804 F.2d 570 (9th Cir.1986). Francis failed to appeal a warden's decision under the Administrative Remedy Procedure. By the time Francis filed his habeas petition regarding the matter, the time for appeal to the Regional Director had passed. This court therefore held that Francis had procedurally defaulted. 894 F.2d at 354. Francis ultimately concluded that dismissal of Francis's habeas petition was unwarranted because the government had waived Francis's procedural default. Id. at 355. By implication the default would have warranted dismissal had no waiver occurred, however. Our analysis in Martinez buttresses that conclusion:

The Bureau of Prisons has established an administrative remedy by which an inmate in a federal prison may seek review of any aspect of imprisonment. 28 C.F.R. Sec. 542.10 (1984). Difficulties which a prisoner may experience in meeting the time requirements for an administrative appeal are properly first brought before the administrative agency. 28 C.F.R. Sec. 542.15 (1984).

804 F.2d at 571. The Martinez court dismissed Martinez's habeas petition because Martinez failed to exhaust the administrative remedies provided to him by the Administrative Remedy Procedure.

In this case, Nigro failed to file a timely BP-11. A BP-11 "is considered filed when [a] receipt [for it] is issued." 28 C.F.R. Sec. 542.14 (1993). The receipt "[a]cknowledge[s] receipt [by the General Counsel] of a[n] ... appeal." Id. Sec. 542.11(a)(2). No receipt could have been issued to Nigro until after July 7, 1988, when the General Counsel's Office received Nigro's BP-11 form. July 7th was more than 30 days after the date of the Regional Director's response. The appeal was therefore not timely filed. See id. Sec. 542.15. For this reason, Nigro has procedurally defaulted. See Francis, 894 F.2d at 354. This default warrants dismissal of his petition. See id.; Martinez, 804 F.2d at 571.

We reject Nigro's contentions to the contrary. Nigro's primary contention is that his BP-11 appeal form was timely filed under Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). In Houston, a pro se habeas petitioner tried to appeal a district court's dismissal of his petition. The petitioner drafted a notice of appeal and deposited it with prison authorities, for mailing, twenty-seven days after judgment was entered The court of appeals dismissed the appeal because it thought the notice untimely under Fed.R.App.P. 4(a)(1), which required that the notice be "filed" within thirty days of the date of judgment. 487 U.S. at 268-69, 108 S.Ct. at 2381-82. Had "filing" meant only receipt of the notice of appeal by the district court, the court of appeals would have been correct. The Supreme Court held, however, that the petitioner's "notice of appeal was filed at the time [he] delivered it to the prison authorities for forwarding to the court clerk." Id. at 276, 108 S.Ct. at 2385. The Court reasoned that the ambiguous word "filed" was open to that construction. Id. at 272-76, 108 S.Ct. at 2383-85. Neither Rule 4(a)(1) nor the applicable statute "set[ ] forth criteria for determining the moment at which ... 'filing' has occurred." Id. at 273, 108 S.Ct. at 2383-84.

dismissing the habeas petition. The date of this deposit was recorded in the prison log of outgoing mail. The notice of appeal did not arrive at the district court until four days later, however, thirty-one days after the district court entered judgment.

The Court noted further that pro se prisoners stand in a position different than that of other litigants. Specifically, pro se prisoners cannot personally travel to the courthouse to see that a notice of appeal is stamped "filed." Rather, the pro se prisoner is forced to trust the prison mail system and the U.S. postal service. The prisoner cannot even monitor the mails to ensure that the notice is received by the court. The prisoner's control over the filing ceases when he delivers it to prison authorities. Moreover, in habeas cases, prison officials have an incentive to delay forwarding prisoners' court filings. The prisoner is unlikely to have means of proving that prison officials delayed his appeal. 487 U.S. at 270-73, 108 S.Ct. at 2382-83.

Nigro correctly notes that we have applied the Houston rationale to hold that pro se prisoners successfully "mail" or "serve" papers under Fed.R.Civ.P. 5(b), 33, and 34 merely by...