United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
Hugo Ramiro Acosta Loja (“Acosta Loja”), who is
currently housed 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 that the Court DISMISS
without prejudice Acosta Loja's Petition,
DIRECT the Clerk of Court to
CLOSE this case, and DENY
Acosta Loja in forma pauperis status on appeal.
Loja is currently serving a 120-month federal sentence for
possession of heroin with intent to distribute, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). (Doc.
12-1, p. 7.) He has a home detention eligibility date of July
3, 2019, and a projected release date of January 3, 2020.
(Id.) On May 22, 2016, prison officials issued an
incident report against Acosta Loja for alleged violations of
the Bureau of Prisons' (“BOP”) discipline
regulations. (Doc. 1-1, p. 5.) At the discipline hearing,
Acosta Loja admitted to possession of a hazardous tool,
namely a cell phone. (Id.) As a result, Acosta Loja
was sanctioned with, among other things, loss of 41 days'
good conduct time and forfeiture of 90 days' non-vested
good conduct time. (Id.)
March 30, 2017, Acosta Loja filed this Petition contesting
the loss of his good conduct time. (Doc. 1.) Acosta Loja
maintains that the BOP improperly penalized him by
sanctioning both his good conduct time and his non-vested
good conduct time. (Id. at pp. 6, 8.) Respondent
argues that the sanctions were appropriate because they
comport with BOP policy, and Petitioner received appropriate
process during the disciplinary proceedings. (Doc. 12, pp. 6-
10.) However, Respondent asserts that the Court should not
review the relative merits of Acosta Loja's Petition
because he has not exhausted his available administrative
remedies concerning his good time credit sanctions.
Whether Acosta Loja 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). However, the normal pleading rules still apply, and
dismissal is appropriate when an affirmative defense appears
on the face of a complaint-making it clear that a prisoner
cannot state a claim for relief. Id. at 214-15.
Thus, when a party admits in his complaint or petition that
he has not exhausted the grievance process, dismissal is
warranted. See Okpala v. Drew, 248 F. App'x 72
(11th Cir. 2007); Cole v. Ellis, No.
5:10-CV-00316-RS-GRJ, 2010 WL 5564632, at *3 (N.D. Fla. Dec.
28, 2010); Rashid v. Liberty Cty. Jail, CV410-092,
2010 WL 3239241, at *1 n.1 (S.D. Ga. May 3, 2010)
(“Nothing in Jones . . . forbids the Court
from dismissing a complaint pursuant to [42 U.S.C.] §
1997e(a) if it is clear from the face of the complaint that
the prisoner has not exhausted all administrative remedies
available to him.”).
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
United States 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 [Prison
Litigation Reform Act], 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).
Standard of Review for Exhaustion
though a failure-to-exhaust defense is non-jurisdictional, it
is like” a jurisdictional defense because such a
determination “ordinarily does not deal with the
merits” of a particular cause of action.
Bryant, 530 F.3d at 1374 (internal punctuation and
citation omitted). Further, a judge “may resolve
factual questions” in instances where exhaustion of
administrative remedies is a defense before the court.
Id. In these instances, “it is proper for a
judge to consider facts outside of the pleadings and to