United States District Court, S.D. Georgia, Waycross Division
Anthony Simms, Petitioner, Pro se, Folkston, GA.
For Bureau of Prisons, Respondent: John Thomas Clarkson, U.S. Attorney's Office - Savannah, Savannah, GA.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JAMES E. GRAHAM, UNITED STATES MAGISTRATE JUDGE.
Petitioner Anthony Simms (" Simms"), who is currently incarcerated at D. Ray James Correctional Facility in Folkston, Georgia, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent filed a Response. For the reasons which follow, Simms' petition should be DISMISSED.
STATEMENT OF THE CASE
Simms contends that he is being denied the opportunity to participate in the Institution Hearing Program (" IHP") for his deportation proceedings because D. Ray James is not an IHP facility, in violation of Program Statement 5111.04. Simms also contends that the sentencing judge directed that he be placed in the facility in Coleman, Florida, and the Bureau of Prisons (" BOP") is not following this directive. Simms asserts that he is being made part of a subordinate class of federal prisoners to those prisoners who are also incarcerated at BOP facilities or BOP-contracted facilities for substantially similar offenses as he is. Respondent alleges that Simms did not exhaust his administrative remedies prior to filing this cause of action, and his petition should be dismissed.
DISCUSSION AND CITATION TO AUTHORITY
" [P]risoners seeking habeas relief, including relief pursuant to [28 U.S.C.] § 2241, " must exhaust all available administrative remedies. Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir. 2004). If a petitioner fails to exhaust his administrative remedies before seeking redress in the federal courts, the court should dismiss the case for want of jurisdiction. Winck v. England, 327 F.3d 1296, 1300 n.1 (11th Cir. 2003) (citing Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir. 1992)). " Also jurisdictional is '[t]he general rule. . . that a challenge to agency actions in the courts must occur after available administrative remedies have been pursued." Id. (quoting Boz v. United States, 248 F.3d 1299, 1300 (11th Cir. 2001)).
In Porter v. Nussle, the United States Supreme Court held that exhaustion of available administrative remedies is mandatory. 534 U.S. 516, 523, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The Supreme Court has noted exhaustion must be " proper." Woodford v. Ngo, 548 U S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). " Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. In other words, an institution's requirements define what is considered exhaustion. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). It is not the role of the court to consider the adequacy or futility of the administrative remedies afforded to the inmate. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). The court's focus should be on what remedies are available and whether the inmate pursued these remedies prior to filing suit.
Inmates at D. Ray James must exhaust administrative remedies, beginning their grievance process locally with the Warden by using the contractor's grievance procedures. (Doc. No. 8, p. 3). This involves an attempt at informal resolution, which, if unsuccessful, is followed by a formal complaint via a Step I administrative remedy form. (Id.). If the inmate is not satisfied with the resolution of the formal complaint, the inmate may appeal to the Bureau of Prisons' (" BOP") Administrator of the Privatization Management Branch, so long as the appeal involves BOP related matters. (Id.). If the inmate is not satisfied with the Privatization Administrator's response, the inmate may make a final appeal to the BOP's Office of General Counsel. (Id.). If an inmate files an administrative remedy concerning a BOP related matter, the administrative remedies will be recorded in the BOP's SENTRY computer database. Pichardo v. United States of America, (Case Number CV5II- 69, Doc. No. 8, p. 3).
The issues raised in Simms' petition involve BOP related matters. (See, n.3). Simms has not filed a BOP administrative remedy during ...