The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a federal prisoner proceeding pro se with an application
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1
Pending before the court is respondent's motion to dismiss
(MTD), filed on September 24, 2010, to which petitioner filed an
opposition on January 21, 2011.*fn2
Petitioner, who was incarcerated at Federal Correctional Institution (FCI) - Herlong at the time of filing his petition, challenges the extended duration of his confinement, adhered to at Herlong, as a result of an alleged violation of his constitutional due process rights arising from, inter alia, a disciplinary hearing which resulted in his being deprived of twenty-seven (27) days of good conduct credits while confined at a private Eden, Texas detention facility run by a private company, Corrections Corporation of America (CCA). Petition, pp. 7-15;*fn3
Evidently to provide background to his challenge, petitioner claims to have been issued an incident report while he was at the Eden Detention Center (hereafter, EDC) in retaliation for his having spoken with Federal Bureau of Prison (hereafter, BOP) personnel who visited EDC; the incident report resulted in his placement in the EDC special housing unit, or SHU. Petition, p. 7. After having been housed in the SHU for several months, an unnamed captain demanded that petitioner give up his sweatsuit, which he was permitted "due to the brutal cold" of his room. Id. This action was also retaliatory, according to petitioner, this time for petitioner's having mailed out a copy of a memo which he was mistakenly given which described a conspiracy to violate petitioner's constitutional rights. Id.*fn4 Petitioner was issued another incident report for refusing to give up his sweatsuit. Id., at 7-8.
On February 12, 2008, a hearing was held concerning, presumably, the second incident report regarding petitioner's refusal to give up his sweatsuit, wherein the captain*fn5 proposed to expunge it, if petitioner would return the (undescribed) memorandum, which, however, petitioner had already mailed to his legal representative. Petition, p. 8. When petitioner refused to return the memo, the captain "became furious" and tightened petitioner's handcuffs to break his wrists, and took petitioner to his room, leaving him for hours in "unbearable pain." Id. Petitioner lost control of his bowels, after which the captain returned with a SWAT team and dragged petitioner to a room where the captain activated the sprinkler system to flood the room in which petitioner had been placed. Id. Thereafter, the captain fabricated a charge against petitioner for "destroying government property," the property being the sprinkler head which the captain himself had tampered with. Id. As a result of this incident, petitioner was subjected to a disciplinary hearing in absentia,*fn6 at which petitioner was assessed the 27 days of good time credit loss. Id. at 8-9.
Respondent moves for dismissal of this petition pursuant to non-enumerated Fed. R. Civ. P. 12(b), for petitioner's alleged failure to exhaust administrative remedies. Notice of Motion, p. 1; Memorandum of Points and Authorities in Support of MTD (hereafter, MTD refers to the supporting memorandum), pp. 1-5. As grounds for the motion, respondent cites Duenez v. Adler,1:07-cv-01724-OWW TAG (HC) (E.D. Cal. Feb. 6, 2009) (respondent may file motion to dismiss for failure to exhaust administrative remedies in lieu of answer)*fn7 and Inlandboatmens Union of the Pacific v. Dutra Group, 279 F.3d 1075, 1078 n. 2 (9th Cir. 2002) ("a motion to dismiss for a failure to exhaust non-judicial remedies is properly considered a 'nonenumerated' Rule 12(b) motion"). MTD, p. 3. The Ninth Circuit has for some time held that a federal prisoner's (or former federal prisoner's) challenge to "the fact or duration of his confinement" is properly construed as a petition for writ of habeas corpus under 28 U.S.C. § 2241. MTD, p. 4, citing Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991). Respondent relies on Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986), for the principle that federal prisoners must exhaust their federal administrative remedies before bringing a habeas petition in federal court. MTD, p. 4. Another case cited by respondent focused solely toward requiring exhaustion of administrative procedures with regard to a now-obsolete federal prison parole procedure, nevertheless does make clear the rationale behind the administrative exhaustion requirement. MTD, p. 4, citing Ruviwat v. Smith, 701 F.2d 844, 845 (1983) (allows appropriate development of factual record in expert forum; saves the court's time should the relief sought possibly be available at the administrative level; and allows the administrative agency an opportunity to correct errors). Respondent also cites Francis v. Rison, 894 F.2d 353, 354 n.1 (9th Cir. 1990), for the proposition that when administrative remedies are still available for any claims, the entire petition must be dismissed unless there are extraordinary circumstances. However, the Ninth Circuit in that case made clear, in vacating the district court's dismissal of a petition based on lack of exhaustion of administrative remedies and remanding the case, that should no administrative remedies remain available, respondent having failed to raise a procedural default argument and thus having waived it, the district court should reach the merits of petitioner's claims. Id. at 355.
There is no statutory requirement, pursuant to 28 U.S.C. § 2241, that federal prisoners must exhaust administrative remedies before filing a habeas corpus petition in court, thus it is not a jurisdictional prerequisite. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 115 S. Ct. 2021 (1995). Nevertheless, federal courts "require as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241.... Prudential limits, like jurisdictional limits and limits on venue, are ordinarily not optional."Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on another ground by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S. Ct. 2422 (2006); see also, Cristobal v. Cruz, 2007 WL 2746742 *1 (N.D. Cal. 2007). Thus, while "courts have discretion to waive the exhaustion requirement when prudentially required, this discretion is not unfettered." Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004). Requiring administrative exhaustion (1) allows for "the appropriate agency to develop a factual record and apply its expertise" which "facilitates judicial review;" (2) permits agencies to grant the requested relief thus conserving judicial resources; and (3) "fosters administrative autonomy" by providing agencies an opportunity to correct their own mistakes. Sanders v. Warden, USP-Allenwood, 2008 WL 4006755 *1 (M.D. Pa. 2008), quoting Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir.1996). Nonetheless, as articulated by the Ninth Circuit:
[w]e do not hold that the exhaustion requirement can never be waived. In S.E.C. v. G.C. George Sec., Inc., 637 F.2d 685, 688 (9th Cir.1981), we noted that "there are a number of exceptions to the general rule requiring exhaustion, covering situations such as where administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void." See also Beharry v. Ashcroft, 329 F.3d 51, 62 (2nd Cir.2003) ("Specifically, exhaustion of administrative remedies may not be required when (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances ...