United States District Court, S.D. Georgia, Waycross Division
ORDER and MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
Jorge Gonzalez (“Gonzalez”), who was formerly
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. (Doc. 1.) Respondent filed
a Response. (Doc. 11.) For the reasons which follow, I
RECOMMEND the Court DISMISS
Gonzalez's Petition, DIRECT the Clerk of
Court to CLOSE this case, and
DENY Gonzalez in forma pauperis
status on appeal.
was convicted in the Eastern District of North Carolina,
after entry of a guilty plea, of conspiracy to distribute and
possess with intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. § 846. He was
sentenced to 120 months' imprisonment on August 5, 2009.
(Doc. 11-1, pp. 13-14.) Gonzalez had a projected release date
of March 20, 2017, via good conduct time credit.
(Id. at p. 11.)
Petition, Gonzalez asserts that his due process rights were
violated on August 16, 2010, as a result of disciplinary
proceedings arising out of a charged incident of possession
of a cell phone and which occurred while he was housed at the
Federal Correctional Institution in Fort Dix, New Jersey
(“FCI Fort Dix”). Specifically, Gonzalez avers he
was not given the opportunity to call witnesses. (Doc. 1, p.
4.) Gonzalez also contends he was sanctioned with the loss of
good conduct time credit that exceeds the sanction normally
associated with this charged offense. Gonzalez maintains the
punishment he was given was inhumane and an abuse of
discretion. (Id.) In addition, Gonzalez contends the
Bureau of Prisons (“BOP”) classified him as a
deportable alien, which precluded his participation in
several programs, including release to a halfway house.
Moreover, Gonzalez asserts he was denied medical care and
treatment for a needed hernia operation. (Id. at p.
5.) Gonzalez seeks the restitution of his forfeited good
conduct time and his immediate release. (Id. at
avers Gonzalez failed to exhaust his administrative remedies
prior to filing his Petition, and his Petition should be
dismissed as a result. (Doc. 11.) The Court addresses
Whether Gonzalez Exhausted his Administrative
Legal Requirements for Exhaustion
Eleventh Circuit Court of Appeals has held that a Section
2241 petitioner's failure to exhaust administrative
remedies is not a jurisdictional defect. Santiago-Lugo v.
Warden, 785 F.3d 467, 474 (11th Cir. 2015); see also
Fleming v. Warden of FCI Tallahassee, 631 F. App'x
840, 842 (11th Cir. 2015) (“[Section] 2241's
exhaustion requirement was judicially imposed, not
congressionally mandated, and . . . nothing in the statute
itself support[s] the conclusion that the requirement [is]
jurisdictional.”). Nevertheless, the Eleventh Circuit
has noted “that the exhaustion requirement is still a
requirement and that courts cannot ‘disregard a failure
to exhaust . . . if the respondent properly asserts the
defense.'” Id. (citing
Santiago-Lugo, 785 F.3d at 475). Failure to exhaust
administrative remedies is an affirmative defense, and
inmates are not required to specially plead or demonstrate
exhaustion in their complaint. Jones v. Bock, 549
U.S. 199, 216 (2007). Additionally, the United States Supreme
Court has “held that the PLRA's [Prison Litigation
Reform Act's] text suggests no limits on an inmate's
obligation to exhaust- irrespective of any ‘special
circumstances.' And that mandatory language means a court
may not excuse a failure to exhaust, even to take such
circumstances into account.” Ross v. Blake,
___U.S.___, 136 S.Ct. 1850, 1856 (June 6, 2016).
requirement that the exhaustion of remedies occur
“first in an agency setting allows ‘the agency
[to] develop the necessary factual background upon which
decisions should be based' and giv[es] ‘the agency
a chance to discover and correct its own errors.'”
Green v. Sec'y for Dep't of Corr., 212 F.
App'x 869, 871 (11th Cir. 2006) (quoting Alexander v.
Hawk, 159 F.3d 1321, 1327 (11th Cir. 1998) (first
alteration in original)). Furthermore, requiring exhaustion
in the prison setting “eliminate[s] unwarranted
federal-court interference with the administration of
prisons” and allows “corrections officials time
and opportunity to address complaints internally before
allowing the initiation of a federal case.”
Woodford v. Ngo, 548 U.S. 81, 93
Supreme Court has noted exhaustion must be
“proper.” Id. at 92. “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, 549 U.S. at 218. 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. Id.
under the law, prisoners must do more than simply initiate
grievances; they must also appeal any denial of relief
through all levels of review that comprise the agency's
administrative grievance process. Bryant v. Rich,
530 F.3d 1368, 1378 (11th Cir. 2008) (“To exhaust
administrative remedies in accordance with the PLRA,
prisoners must ‘properly take each step within the
administrative process.'”) (quoting Johnson v.
Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005));
Sewell v. Ramsey, No. CV406-159, 2007 WL 201269
(S.D. Ga. Jan. 27, 2007) (finding that a plaintiff who is
still awaiting a response from the warden regarding his
grievance is still in the process of exhausting his
Standard of ...