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Steven Day v. Richard B. Ives

November 14, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Petitioner is a federal prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pending before the court is respondent's motion to dismiss (MTD), filed on July 14, 2011, to which petitioner filed an opposition on July 25, 2011. Respondent contends that petitioner has not exhausted administrative remedies, this court lacks subject matter jurisdiction and the issue is moot. Petitioner, who is incarcerated at Federal Correctional Institution (FCI) - Herlong, argues that he was wrongfully denied eligibility for a year off his sentence for successfully completing the Bureau of Prisons (BOP) Residential Drug Abuse Program (RDAP).*fn1

On September 20, 2011, the undersigned issued a further briefing order stating:

[W]ithin twenty-eight days respondent shall file additional exhibits regarding petitioner's appeal history to demonstrate that petitioner actually failed to properly exhaust this claim. Additionally, respondent shall address and file any exhibits that are necessary which discuss if petitioner did or did not request RDAP prior to March 16, 2009. If no exhibits exist to shed light on these claims respondent shall provide a declaration from the prison stating that there are no records that address these issues.

Doc. 19. Respondent timely filed additional briefing. Doc. 23. Petition

On December 9, 2008, petitioner was sentenced to a 60 month term of imprisonment for possessing a firearm in furtherance of a drug trafficking crime. On June 1, 2009, petitioner submitted a request to participate in RDAP. MTD, Exh. 4. Petitioner was interviewed for the program just two days later on June 3, 2009. MTD, Exh. 6. On December 16, 2009, BOP officials evaluated petitioner for RDAP and indicated that he would not be eligible for early release with RDAP due to the use of a firearm in his underlying conviction. Id. Nevertheless, petitioner still participated in RDAP. Somewhat confusingly, petitioner completed RDAP on October 15, 2010, (Doc. 8 at 3; MTD, Exh. 5), but then failed, or "withdrew" from, RDAP on January 31, 2011, (MTD, Exhs. 5, 7). Petitioner filed the instant petition on December 21, 2010.

Motion to Dismiss


Respondent argues that this case is moot as petitioner voluntarily withdrew from the RDAP program on January 31, 2011. While this is partially accurate, BOP records also indicate that petitioner successfully completed RDAP on October 15, 2010. In the further briefing order the undersigned noted the inconsistences that indicated petitioner had completed RDAP. Petitioner included a certificate that indicated he completed RDAP on October 15, 2010, and it is signed by L. Russell, Ph.D., Drug Abuse Program Coordinator and J. Morgan, Drug Treatment Specialist. Doc. 8 at 3. In addition, BOP records in respondent's motion to dismiss contain an entry for petitioner and RDAP also on October 15, 2010, that states "COMP," which the undersigned believes could indicate completed.*fn2 MTD, Exh. 5. While it was possible the undersigned was misreading the BOP records, respondent chose not to address the evidence that demonstrates petitioner completed RDAP in the additional briefing, instead simply citing to the records that indicate petitioner withdrew. As it is arguable that petitioner completed RDAP, respondent has failed to demonstrate that this case is moot.


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 a plaintiff has raised a substantial constitutional question.") (internal quotation marks omitted). Similar concerns govern a court's determination of whether to excuse a failure to exhaust judicial remedies.

Laing v. Ashcroft, 337 F.3d at 1000-01; see also, Murgia v. Copenhaver, 2009 WL 3707113 *2 (N. D. Cal. 2009).

The administrative appeal process in the BOP is as follows: The Bureau of Prisons ("BOP") has established a multi-tier system by which a prisoner may seek formal review of any aspect of his imprisonment. See 28 C.F.R. §§ 542.10-542.16 (1994). First, "[i]nmates shall informally present their complaints to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for Administrative Remedy." Id., at § 542.13(a). Second, "[i]f an inmate is unable to informally resolve his complaint, he may file a formal written complaint [to the warden], on the appropriate form, within twenty (20) calendar days of the date on which the basis of the complaint occurred." Id., at § 542.15(a). In the event the inmate is dissatisfied with the warden's response, he may file an appeal to the BOP Regional Director within twenty (20) days. Id., § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, that decision may then be appealed to the BOP Central Office within thirty ...

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