The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT [Doc. 1]
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).
In the instant petition, Petitioner challenges a disciplinary infraction he received for fighting with another inmate. More specifically, Petitioner contends 1) he was acting in self-defense and should not have been issued a rules violation; 2) he was denied a fair and impartial discipline hearing; and 3) he was subjected to cruel and unusual punishment by insufficient staff available to protect him from harm.
Respondent filed an answer to the petition on May 21, 2012. Petitioner did not file a traverse.
I. Subject Matter Jurisdiction and Venue
Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). At the time the instant petition was filed, Petitioner was housed at the United States Penitentiary in Atwater, California.*fn1 "'[J]urisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petition and the accompanying custodial change.'" Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990), quoting Santillanes v. United States Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985); accord Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971). Accordingly, this Court has jurisdiction to review the instant petition.
II. Exhaustion of Administrative Remedies
Before filing a petition for writ of habeas corpus, a federal prisoner challenging any circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Thus, "because exhaustion is not required by statute, it is not jurisdictional." Id. If Petitioner has not properly exhausted his claims, the district court, in its discretion, may either "excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his administrative remedies before proceeding in court."
If the petitioner did not properly exhaust his administrative remedies, and such remedies are no longer available, he may have procedurally defaulted on his claims. See Francis v. Rison, 894 F.2d 353, 354-55 (9th Cir.1990) (applying procedural default rules to administrative appeals); see generally Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977); Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir.1988). If a claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray, 477 U.S. at 492 (cause and prejudice test applied to procedural defaults on appeal); Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 906-08 (9th Cir.1986) (cause and prejudice test applied to pro se litigants).
The Bureau of Prisons has established an administrative remedy procedure governing prisoner complaints. The procedure is set forth at 28 C.F.R. § 542.10 et. seq. Respondent submits the declaration of D. Rupert, Discipline Hearing Officer at the United States Penitentiary in Lee County, Virginia, who explains the administrative remedy procedure available at the Federal Bureau of Prisons. "The Federal Bureau of Prisons makes available to its inmates a three level administrative remedy process should informal resolution procedures fail to achieve sufficient results. The first level of administrative remedy process review is normally begun by filing a Request for Administrative Remedy at the institution where the inmate is incarcerated. However, challenges to disciplinary decisions of the DHO may be made directly to the region by submitting a Regional Administrative Remedy Appeal to the Regional Office for the geographic region in which the inmate's institution of confinement is located. For an inmate at USP Lee, this appeal would be filed with the Mid-Atlantic Regional Office of the Federal Bureau of Prisons in Annapolis Junction, Maryland. If the Regional Office denies relief, the inmate can appeal to the Office of General Counsel via a Central Office Administrative Remedy Appeal. This is the third and final step of the Bureau's administrative remedy process. These procedures are outlined in Bureau Program Statement 1330.16, Administrative Remedy Program (12/31/2007), which is available at www.bop.gov, and is codified in part at 28 C.F.R. § 542.10, et seq." Ex. A, Declaration of D. Rupert.
Respondent argues that Petitioner has not exhausted the administrative remedies as to his challenge to the disciplinary action at issue in this case. On May 31, 2011, Petitioner filed a Regional Administrative Appeal (Remedy ID no. 645315-R1). The Regional Director denied the appeal on August 31, 2011.
The Central Office Administrative Remedy did not receive an appeal (Remedy ID No. 645315-A1) until September 26, 2011. The appeal was rejected on October 13, 2011. When an appeal is rejected, the SENTRY system automatically generates a Rejection Notice. Status codes are entered explaining the reason for the rejection which appears on the rejection notice. Respondent an excerpt of the Technical Reference Manual 1301.02, SENTRY Administrative Remedy (10/3/1997), which sets forth the code and remark that is associated with the code identified. See Attachment 7, to Decl. of Rupert. Petitioner was advised that his appeal would be reconsidered if he modified his submission to include no more than one continuation page (Rejection Status Reason "CPG"), include copies ...