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Gonzalez v. Johns

United States District Court, S.D. Georgia, Waycross Division

August 9, 2017

JORGE GONZALEZ, Petitioner,
v.
TRACY JOHNS, Warden, Respondent.

          ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         BACKGROUND

         Gonzalez 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.)

         In his 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.[1] (Id. at p. 6.)

         Respondent 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 Respondent's contention.

         DISCUSSION

         I. Whether Gonzalez Exhausted his Administrative Remedies

         A. Legal Requirements for Exhaustion

         The 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).

         The 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 (2006).[2]

         The 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.

         Thus, 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 administrative remedies).

         B. Standard of ...


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