The opinion of the court was delivered by: Dolly M. Gee United States District Judge
ORDER ADOPTING IN PART FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
On September 4, 2009, Petitioner René Ellis filed a Petition for Writ of Habeas Corpus under 28 U.S.C § 2241 challenging the conditions of his confinement. Respondent filed a Motion to Dismiss the Petition on the grounds that Petitioner has not exhausted his state court remedies and that habeas relief is unavailable for some of Petitioner's claims. The Magistrate Judge issued a Report and Recommendation on December 21, 2009, recommending that the Court grant Respondent's Motion. Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, all the records and files herein, and the Report and Recommendation ("R&R"). For the reasons discussed below, the Court concurs with and adopts in part the findings, conclusions, and recommendations of the Magistrate Judge.
I. PETITIONER'S ALLEGATIONS
Petitioner, an inmate at the federal penitentiary at Lompoc ("USP Lompoc"), asserts that on July 4, 2009, four Bureau of Prisons staff "viciously assaulted" him with weapons, which physically and emotionally scarred him for life. (Pet. at 3.) In an alleged effort to cover up their actions, the correctional officers issued incident reports that falsely charged Petitioner with assaulting them. Petitioner requested four staff representatives-one for each report-to assist him in the subsequent administrative proceedings.*fn1 Only one staff representative, however, was assigned. (Id.) After Petitioner complained to Respondent personally, BOP staff removed him from his cell and isolated him from other inmates, leaving Petitioner "vulnerable to future attacks." (Id. at 4.)
Petitioner contends that the officers violated the standards of employee conduct. He requests "a declaratory order to impose all available and appropriate sanctions enumerated in [BOP] program statement 3420.09."*fn2 (Id. at 4.) Petitioner also requests "a declaratory order for USP Lompoc staff to refrain from retaliating against [him] for filing this action." (Id.)
Prior to seeking habeas relief in federal court, a federal inmate must first exhaust administrative remedies available through the BOP's grievance procedure. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (per curiam). This requirement is not jurisdictional; the habeas statute, 28 U.S.C. § 2241, contains no exhaustion requirement. Rather, § 2241 petitioners must exhaust as a prudential matter, and exhaustion, though ordinarily not optional, may be waived. See Laing v. Ashcroft, 370 F.3d 994, 997-98 (9th Cir. 2004). Thus, exhaustion is not required if further pursuit of BOP administrative remedies would be futile. Fraley, 1 F.3d at 925.
The BOP grievance system works as follows: In general, the prisoner should first attempt to reach an informal resolution by presenting his or her concern to BOP staff. 28 C.F.R. § 542.13. The informal resolution attempt may be bypassed in appropriate cases. Id. § 542.13(b). If informal resolution is unsuccessful or bypassed, the inmate submits a formal written administrative remedy request within 20 days of the incident giving rise to the inmate's complaint. Id. § 542.14(a). In most cases, the warden will address the initial complaint. The prisoner may, if dissatisfied with the warden's response, appeal to the regional director and, ultimately, the general counsel, which is the final level of administrative review. Id. § 542.15(a).
According to Respondent, Petitioner filed three formal requests for administrative remedy at the warden level. On July 22, 2009, Petitioner filed the first of these requests:
On July 4, 2009 I was viciously assaulted by BOP staff L. VanSandt, R. Williams, A. Maldonado and R. Rawlings here in SHU.*fn3 R. Williams assaulted me [continuously] with a metal flashlight. C.O. L. VanSandt punched me in my face and cut me with a razor/knife-like weapon that he pulled from his pocket. I demand that the FBI and United States Attorney of [sic] this brutal assault and made aware that I wish to press charges against the four officers that assaulted me. Thank you. (Schuh Decl., Ex. C at 29.)
Petitioner filed another request for administrative remedy on August 12, 2009:
I am asking that I be removed from SHU or Officer L. VanSandt be removed from SHU. I am constantly being harassed and threatened since he assaulted me on the 4th of July 2009. Now on 8/12/09 C.O. Cedeno a commissary officer informed me that he never received a commissary slip with my name on it therefore I was not allowed to buy commissary for the second week in a row. C.O. VanSandt collected my commissary sheet on Sunday like he does every Sunday. On 8/12/09 at approximately 3pm C.O. VanSandt came to my cell and said I'll never get to shop again and he started laughing. Prisoner J. Floyd #06820-043 witnessed this threat. All I'm asking is that you remove me or your officer before something tragic takes place. Thank you! (Id., Ex. C at 32.)
Finally, Petitioner filed a request for administrative remedy on September 1, 2009:
On August 31, 2009 at approximately 7:25pm I was fed my religious Ramadan meal by C.O. L. VanSandt who is the very same officer that assaulted me on July 4, 2009 and has been threatening and harassing me everyday since. On the above date and time while serving me my religious Ramadan meal C.O. VanSandt informed me that I would be receiving my breakfast bag at 4:00am. The next morning I never received my breakfast bag and C.O. VanSandt came to my door at 6:00am laughing saying he couldn't believe I "fell for that." As a result of him playing with my meal I was not able to fast properly and this is a direct violation of my constitutional rights that promises freedom of religion. I once again am asking you Warden Sanders to discipline your rogue officer and ...