United States District Court, C.D. California
January 26, 2015
ALBERTO CRUZ, Petitioner,
JACK FOX, Warden, Respondent
Alberto Cruz, Petitioner, Pro se, Lompoc, CA.
For Jack Fox, Respondent: Chung Hae Han, LEAD ATTORNEY, Office of U S Attorney, Los Angeles, CA; Assistant U.S. Attorney LA-CV, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Diana L Pauli, Office of U.S. Attorney, Criminal Division - U.S. Courthouse, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DAVID T. BRISTOW, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Manuel L. Real, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner is a federal prisoner currently incarcerated at the United States Penitentiary in Lompoc, California (" USP-Lompoc"). On July 1, 2014, petitioner filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody (" Pet.") pursuant to 28 U.S.C. § 2241 herein. In response to the Court's Order Requiring Response to Petition, on August 5, 2014, respondent filed a Motion to Dismiss Petition for Writ of Habeas Corpus (" Motion") on the ground that petitioner failed to exhaust his available administrative remedies. On October 20, 2014, petitioner filed a " Reply to Respondent's Motion to Dismiss Petition, " which the Court construes as petitioner's Opposition (" Opp.") thereto.
Thus, this matter is now ready for decision. For the reasons discussed herein, the Court recommends that the Motion be granted and that the Petition be dismissed without prejudice for failure to exhaust administrative remedies.
Petitioner is currently serving a 120-month term of imprisonment for conspiracy to possess with intent to distribute, and to distribute 500 grams or more of cocaine. (Declaration of Werner Guth (" Guth Decl.") in support of Motion, Exhibit [" Exh." ] A.) Petitioner's projected release date is July 1, 2020, with good conduct time. (Id.) Petitioner was incarcerated at the Federal Correctional Institution in Ray Brook, New York (" FCI-Ray Brook") from May 24, 2012 through March 15, 2013. (Guth Decl., Exh. B.) On April 3, 2013, petitioner was transferred to USP-Lompoc. (Id.)
PETITIONER'S CLAIM HEREIN
Petitioner contends that his due process rights were violated on December 13, 2012 when he was found guilty of committing Prohibited Act 199, for conduct which disrupts or interferes with the security or orderly running of the institution, most like Prohibited Act 108, possession, manufacture, or introduction of a hazardous tool, including portable telephones. (Pet. at 3; Motion at 1; Guth Decl., Exh. C.)
It is well settled that federal prisoners must generally exhaust their federal administrative remedies prior to filing a habeas corpus petition pursuant to 28 U.S.C. § 2241. See Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (per curiam) (" Federal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in federal court."); see also Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2005) (as amended); Fendler v. U.S. Parole Comm'n, 774 F.2d 975, 979 (9th Cir. 1985). While the exhaustion requirement is not jurisdictional, its importance is well established. See Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds, Reno v. Koray, 515 U.S. 50, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995); see also Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012); Singh v. Napolitano, 649 F.3d 899, 900 (9th Cir. 2011) (per curiam) (as amended) (" In order to seek habeas relief under section 2241 . . . a petitioner must first, 'as a prudential matter, ' exhaust his or her available administrative remedies." (citation omitted)); Castro-Cortez v. Immigration & Naturalization Serv., 239 F.3d 1037, 1047 (9th Cir. 2001) (" [S]ection  does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. However, we require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241." (footnote omitted)), abrogated on other grounds, Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). Requiring a petitioner to exhaust his administrative remedies aids " judicial review by allowing the appropriate development of a factual record in an expert forum." See Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983) (per curiam). Use of available administrative remedies conserves " the court's time because of the possibility that the relief applied for may be granted at the administrative level." Id. Moreover, it allows " the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings." Id.
Courts have discretion to waive the exhaustion requirement 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." Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (citation omitted); see also Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 542 n.3 (9th Cir. 2004). A " key consideration" in exercising such discretion is whether " relaxation of the requirement would encourage the deliberate bypass of the administrative scheme." Laing, 370 F.3d at 1000 (quoting Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)).
A. The Federal Bureau of Prisons's exhaustion procedures
The United States provides an administrative remedy process through which Federal Bureau of Prisons (" BOP") inmates may seek formal review of an issue relating to any aspect of their confinement. See 28 C.F.R. § 542.10. Generally, in order to exhaust available administrative remedies within this system, an inmate must proceed through four levels of review.
" [B]efore an inmate submits a Request for Administrative Remedy, " the inmate must attempt to " informally resolve" the issue at the institution where it occurred by presenting the issue informally to staff. See 28 C.F.R. § 542.13(a). If the issue cannot be informally resolved within 20 calendar days from the date of the occurrence, the inmate may submit a formal written Administrative Remedy Request on the required form, commonly known as a BP-9, to the staff member designated to receive these requests. See 28 C.F.R. § 542.14. If the inmate is not satisfied with the Warden's response, he may proceed to the third level of administrative review by appealing the matter to the Regional Director of the region in which the inmate is confined. See 28 C.F.R. § 542.15(a). The required form for this appeal is commonly referred to as a BP-10. See 28 C.F.R. § 542.15(b).
However, where an inmate is found to have committed a disciplinary infraction, the inmate may appeal the decision through the administrative remedy process by first submitting the BP-10 form to the Regional Director, bypassing the initial filings at the institution. See 28 C.F.R. § 542.14(d)(2) (" DHO appeals shall be submitted initially to the Regional Director for the region where the inmate is currently located."). (See also Motion at 2.) Once the inmate files the BP-10 form, the Regional Director has 30 calendar days to respond to the appeal, although this time period may be extended once by 30 days with written notice to the inmate. See 28 C.F.R. § 542.18.
If the inmate is not satisfied with the Regional Director's response to the BP-10, the inmate's last step in the administrative appeals process is to submit an appeal to the General Counsel within 30 calendar days of the date of the Regional Director's response to the BP-10. See 28 C.F.R. § 542.15(a). The required form for this appeal is commonly referred to as a BP-11. See 28 C.F.R. § 542.15(b). Once the inmate files the BP-11 form, the General Counsel has 40 calendar days to respond to the appeal, although this time period may be extended once by 20 days with written notice to the inmate. See 28 C.F.R. § 542.18. Pursuant to 28 C.F.R. § 542.15(a), an " [a]ppeal to the General Counsel is the final administrative appeal." Thus, the administrative process is not complete until either (a) the General Counsel replies, on the merits, to the inmate's BP-11, or (b) the time allotted for reply runs without the inmate receiving a response. See 28 C.F.R. § 542.18.
Here, there is no dispute that petitioner failed to exhaust his administrative remedies. (Motion at 2; Opp. at 2.) Rather, petitioner contends that he should be excused from the exhaustion requirement because the BOP refused to provide him the opportunity to exhaust his administrative remedies by refusing to provide him with the required BP-10 form while he was in the segregated housing unit (" SHU"). (Opp. at 2-3.) Petitioner further maintains that " requiring him to exhaust the administrative remedies now would be futile and ineffective" because the BOP would not review his claim on the merits, and instead, would deny it as untimely. (Opp. at 3.) According to petitioner, the BOP intentionally refused to provide him with the BP-10 form while he was in the SHU at FCI-Ray Brook and then told him at USP-Lompoc that the time period in which to appeal the adverse disciplinary decision had expired and therefore, refused " to provide him the opportunity to appeal the adverse decision." (Opp. at 2-3.) As explained below, the Court concludes that petitioner has failed to provide adequate justification for his failure to exhaust his administrative remedies.
First, petitioner appears to be contending that prison officials have prevented him from appealing the adverse disciplinary decision. However, other than his own self-serving contentions, he has not provided any support for this allegation, including any documentary evidence that he ever attempted to exhaust his administrative remedies. Although petitioner argues that prison officials refused to provide him with the BP-10 form while in the SHU (Opp. at 2-3), there is no evidence that he attempted to submit an appeal on another form or document while in the SHU, after being transferred out of the SHU, or upon his arrival at USP-Lompoc. Petitioner similarly maintains that when he attempted to obtain the BP-10 form from USP-Lompoc, he was told that such a request would not be honored because the time to appeal had passed. (Opp. at 4.) Again, however, petitioner has not presented any evidence to support this contention. The record reflects that, to date, petitioner has submitted only one administrative remedy request, which was unrelated to the claim alleged in his Petition. (Guth Decl., Exh. D.)
Further, with respect to petitioner's contention that exhaustion would be futile because any appeal would be denied as untimely, as the Ninth Circuit has explained, " [d]ifficulties which a prisoner may experience in meeting the time requirements for an administrative appeal are properly first brought before the administrative agency." Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (per curiam). The BOP's administrative remedy process expressly provides an inmate with an opportunity to request an extension of the filing time where the inmate demonstrates a valid reason for delay. See 28 C.F.R. § § 542.14(b), 542.15(a). Here, however, there is no evidence that petitioner attempted to utilize this mechanism, or that the Regional Director has or would have rejected such an appeal as untimely. Additionally, petitioner's argument that his untimeliness renders any further exhaustion futile would render the exhaustion requirement meaningless, as it would allow excusal simply by virtue of a prisoner's failure to comply with the procedures. See Laing, 370 F.3d at 998 (" exhaustion may not be achieved through a litigant's procedural default of his or her available remedies"). As such, although futility is an exception to the exhaustion requirement,
id. at 1000, petitioner has failed to demonstrate that pursuing his administrative remedies would be futile.
The Court concludes that excusing petitioner from seeking administrative review would improperly encourage the deliberate bypass of the BOP's administrative review process. See Laing, 370 F.3d at 1000. The use of the established administrative process for petitioner's claim would have provided the BOP with an opportunity to correct the alleged error and would promote judicial efficiency by developing a factual record at the administrative level. Accordingly, the Court declines to excuse petitioner's failure to exhaust his administrative remedies and, and therefore, recommends granting respondent's Motion based on the failure to exhaust.
IT THEREFORE IS RECOMMENDED that the District Court issue an order: (1) Approving and accepting this Report and Recommendation; (2) granting respondent's Motion to Dismiss; and (3) directing that Judgment be entered dismissing this action without prejudice.