Frederick v. Johnson

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
JOSEPH FREDERICK, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-24-837-R
)
CASEY HAMILTON, Warden, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Joseph Frederick, a state prisoner proceeding pro se, filed a Petition for a
Writ of Habeas Corpus Under 28 U.S.C. § 2241 challenging the execution of his sentence.
Doc. 1. Upon order of the Court, Petitioner filed an amended Petition for a Writ of Habeas
Corpus Under 28 U.S.C. § 2241 (“Petition”), 	which became 	the operative pleading.
Doc. 10. 	United States District Judge David L. Russell referred 	this matter to the
undersigned Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C).
On February 19, 2025, the Court ordered Respondents to file an answer, motion, or
other response within 30 days of the Order’s date. Doc. 15. Petitioner was instructed that,
if Respondents file a motion that he opposes, he “shall file a response within twenty-one
(21) days after the date the motion was filed.” 	Id. 	Respondent Casey Hamilton filed a
Motion to Dismiss (“Motion”), Doc. 17, and Petitioner did not object to it.1 On June 30,
1 “The federal habeas statute straightforwardly provides that the proper respondent to a
habeas petition is ‘the person who has custody over the petitioner.’” 	Rumsfeld v. Padilla,
542 U.S. 426, 	434 (2004) 	(citation 	modified) (quoting 	28 	U.S.C. §§ 	2242, 2243).
Additionally, “there is generally only one proper respondent to a given prisoner’s habeas
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2025, the Court issued an Order notifying the parties that, considering 	Respondent’s
reliance on materials outside the Petition, the Court may convert the Motion to one for
summary judgment and informed Petitioner of his need to respond. 	Doc. 18. 	Petitioner
did not respond. 	As discussed below, however, the undersigned does not recommend
converting the Motion.2 The Motion is currently before the Court. 	The undersigned
recommends that the Court deny the Motion.
I. 	Petitioner’s Claims
Petitioner was incarcerated 	at the Great Plains Correctional Center in Hinton,
Oklahoma, when he filed his Petition. Pet. at 1. He seeks habeas relief from disciplinary
proceedings 	at the prison. 	Id. at 2. 	Liberally 	construing 	Petitioner’s 	claims, 	the
undersigned 	understands him to assert that his 	due process 	rights 	were violated 	in
disciplinary 	proceedings that resulted in the loss of good time credits. 	Id. at 2-3, 7.
petition.” 	Id. 	Here, Petitioner named two Respondents. 	Warden Hamilton, as the only
proper Respondent, complied with the Court’s Order.
2 “While the Federal Rules of Civil Procedure may be applied in habeas proceedings, they
need not be in every instance—particularly where strict application would undermine the
habeas review process under [the Antiterrorism and Effective Death Penalty Act of 1996].”
Whitmore v. Parker, 484 F. App’x 227, 231 (10th Cir. 2012) (citation modified). 	In the
Motion, Respondent fails to address Petitioner’s central contention, liberally construed,
that exhaustion of administrative remedies was not available to him because a prison
official threatened him with physical injury if he appealed or filed a grievance with his
disciplinary proceeding. See Pinson v. Berkebile, 601 F. App’x 611, 613 (10th Cir. 2015)
(acknowledging that “exhaustion of administrative remedies is a prerequisite for § 2241
habeas relief” except that exhaustion may be unavailable “where prison officials prevent,
thwart, or hinder a prisoner’s efforts to avail himself of an administrative remedy” (citation
modified)). 	Accordingly, converting the Motion to one for summary judgment would
undermine the habeas review process as the question of available administrative remedies
would remain. 	As such, the undersigned evaluated the Motion as a motion to dismiss and
did not consider the attached evidence. See discussion infra.
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Petitioner alleges that he “was being threatened” in a disciplinary 	proceeding that “A
Johnson” would “kick [his] ass if [he] filed [a] grievance or appeal.” 	Id. at 3. The person
identified as “A Johnson” is a named Respondent and likely a prison official at the Great
Plains Correctional Center. Petitioner claims the prison official “threaten[ed] to kick [his]
ass if he didn’t plea guilty and if he attempted to appeal or file grievances.” 	Id. at 7.
Petitioner further alleges that he did not pursue all appeals available to him “out of fear of
being attacked from being threaten[ed] by prison official.” Id. at 8.
Respondent confirms in his Motion that Petitioner pleaded guilty to a Class X
misconduct violation, resulting in a revocation of all earned credits, based on a misconduct
report dated August 1, 2024. Mot. at 1.
II. 	Standard of Review
Federal statutory law does not address the standard for a motion to dismiss in a
habeas proceeding, and thus the Federal Rules of Civil Procedure apply. 	See Fed. R. Civ.
P. 81(a)(4). 	Respondent moves for dismissal based on Petitioner’s failure to exhaust his
administrative remedies but does not articulate under what provision. 	The undersigned
construes Respondent’s Motion as asserting that Petitioner failed to state a claim for relief
because he has not exhausted administrative remedies. 	Therefore, the applicable rule is
Fed. R. Civ. P. 12(b)(6). 	See Perez-Romero v. Warden, GPCF/BOP, U.S., No. CIV-18-
852-F, 2019 WL 2018481, at *2 (W.D. Okla. Apr. 15, 2019) (recommending that a motion
to dismiss based on the petitioner’s failure to exhaust his administrative remedies should
be reviewed under the Rule 12(b)(6) standard) (R&R), adopted, 2019 WL 2016870 (W.D.
Okla. May 7, 2019); see also Aguilera v. Kirkpatrick, 241 F.3d 1286, 1290 (10th Cir. 2001)
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(ruling that a habeas petition should be dismissed under Rule 12(b)(6) for failure to state a
claim).
To survive a motion to dismiss under Rule 12(b)(6), a petition must include “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007); accord Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 n.2 (10th
Cir. 2007). 	In ruling on such a motion, the Court’s function “is not to weigh potential
evidence that the parties might present at trial, but to assess whether the complaint alone is
legally sufficient to state a claim for which relief may be granted.” 	Brokers’ Choice of
Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135 (10th Cir. 2014) (citation modified).
To that end, “all well-pled factual allegations are accepted as true and viewed in the light
most favorable to the nonmoving party.” Id. at 1136 (citation modified).
“Granting a motion to dismiss is a harsh remedy which must be cautiously studied,
not only to effectuate the spirit of the liberal rules of pleading but also to protect the
interests of justice.” 	Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1276 (10th Cir.
2023) (citation modified). 	As such, “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is
very remote and unlikely.” 	Bell Atl. Corp., 550 U.S. at 556 (citation modified). Further, a
pro se litigant’s filing must be liberally construed and held to less stringent standards than
pleadings drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
III. 	Discussion
Respondent alleges that the Petition should be dismissed for two reasons. 	The
undersigned concludes that neither proposition provides grounds for dismissal.
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A. 	Petitioner properly brought his claims in a habeas petition under 28
U.S.C. § 2241
Respondent first asserts that Petitioner’s claims of a violation of due process are not
properly before the Court because they “must be raised in a civil rights action pursuant to
42 U.S.C. § 1983 as opposed to a habeas corpus proceeding.” 	Mot. at 3. 	Liberally
construing 	his claims, 	Petitioner asserts that his due process 	rights were violated in
disciplinary proceedings that resulted in the loss of good time credits. Petitioner’s claims
relate to the duration of his sentence and challenge the way in which his sentence is being
executed, not the conditions of his confinement. 	Such claims are properly brought in a
petition for writ of habeas corpus under 28 U.S.C. § 2241 and, as such, are properly before
the Court. See Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007) (“It
is well settled that an inmate’s liberty interest in his earned good time credits cannot be
denied without the minimal 	safeguards afforded by the Due Process Clause 	of the
Fourteenth Amendment.” (citation modified)); Wilson v. Jones, 430 F.3d 1113, 1117 (10th
Cir. 2005) (ruling a § 2241 petitioner was “entitled to due process before he is subjected to
. . . disciplinary actions that ‘inevitably affect the duration of his sentence’” (quoting
Sandlin v. Conner, 515 U.S. 472, 484, 487 (1995)); cf. Davis v. Fox, 701 F. App’x 715,
716 (10th Cir. 2017) (ruling a petition that asserted claims related to petitioner’s conditions
of confinement was not properly brought under § 2241 but instead should have been
brought under § 1983). Respondent’s first assertion should therefore be denied.
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B. 	The Petition includes sufficient facts to allege that exhaustion of
administrative remedies was unavailable to Petitioner
Respondent next asserts that Petitioner failed to exhaust his administrative remedies.
Mot. at 4-5. In support of his argument, Respondent relies on materials outside the Petition,
including an affidavit from the prison’s Administrative Review Authority Manager. 	Id.
As such, the Court must either (1) convert the motion to one for summary judgment or
(2) retain the motion as one to dismiss but decline to consider materials outside the Petition.
See Fed. R. Civ. P. 12(d), 56. The undersigned recommends that the Court opt for the latter
option and review the Motion without consideration of the attached documents. See Lowe
v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998) (ruling a district court did not
abuse its discretion in refusing to convert a motion to dismiss to a motion for summary
judgment when matters outside the pleadings were attached to the motion but not relied on
by the court); McClure v. Fox, No. CIV-16-127-R, 2016 WL 6998880, at *1 n.2 (W.D.
Okla. Oct. 31, 2016) (declining to convert a motion to dismiss to a motion for summary
judgment but excluding the attached evidence from consideration when recommending
granting the motion) (R&R), adopted, 2016 WL 7009103 (W.D. Okla. Nov. 30, 2016);
Thornton v. Dinwiddie, No. CIV-07-1321-W, 2008 WL 4296609, at *5 (W.D. Okla.
Sep. 19, 2008) (denying motion to dismiss because the Court could not rely on evidence
outside of the petition but allowing the respondent to re-urge the issue, which depended on
external materials, through a subsequent motion for summary judgment).
Respondent in his Motion argues that the Petitioner “failed to submit a grievance or
appeal regarding his misconduct 	– or alleged, 	related 	retaliation 	– to the ODOC’s
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Administrative Review Authority, pursuant to the agency’s grievance process.” Mot. at 4.
Indeed, “the exhaustion of available administrative remedies is a prerequisite for § 2241
habeas relief.” 	Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (citation modified).
But “where prison officials prevent, thwart, 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 exhaust.” Pinson, 601 F. App’x at 613 (citation modified) (quoting
Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010)).
Petitioner acknowledges that he did not file a grievance or seek an administrative
remedy, but he claims that he did not do so because during the “disciplinary procedure
[Petitioner] was being threatened by A Johnson to kick [his] ass if [he] filed [a] grievance
or appeal.” 	Pet. at 3. Based on these threats by Officer Johnson, Petitioner asserts that he
did not exhaust the administrative remedies available to him “out of fear of being attacked”
and “being threatened by [a] prison official.” 	Pet. at 7-8. 	Respondent fails to address in
his Motion these specific allegations by Petitioner about unavailability 	of remedies or
threats by a prison official.
At the motion to dismiss stage, construing Petitioner’s factual allegations as true
and in a light most favorable to him, Petitioner has plausibly alleged with sufficient detail
that he was prevented from exhausting his administrative remedies by a prison official’s
threats and intimidation. 	Respondent’s conclusory 	statements that Petitioner failed to
exhaust his administrative 	remedies, 	combined 	with Respondent’s failure 	to address
Petitioner’s claims that he was threatened from doing so, do not provide an adequate basis
for dismissal of the Petition.
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IV. 	Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DENY
Respondent’s Motion to Dismiss, Doc. 17. The parties are advised of their right to object
to this Report and Recommendation. 	See 28 U.S.C. § 636. 	Any objection must be filed
with the Clerk of Court not later than October 21, 2025. See id. § 636(b)(1); Fed. R. Civ.
P. 72(b)(2). 	Failure to object timely waives the right to appellate review of the factual and
legal issues addressed in this Report and Recommendation. 	See Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not dispose of all issues referred to the
undersigned Magistrate Judge in this matter.
ENTERED this 30 th day of September, 2025.
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