United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
Juan Ramon Ochoa (“Ochoa”), who is currently
housed at D. Ray James Correctional Institution (“D.
Ray James”) 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. 8.) For the
reasons which follow, I RECOMMEND that the
Court DISMISS without prejudice Ochoa's
Petition, DIRECT the Clerk of Court to
CLOSE this case, and DENY
Ochoa in forma pauperis status on appeal.
is currently serving a 168-month federal sentence for
conspiracy to distribute cocaine, methamphetamine, and
marijuana, in violation of 21 U.S.C. §§ 846 and
841(a)(1). (Doc. 8-1, pp. 4-6.) He has a projected release
date of October 14, 2017. (Id. at p. 5.)
states that the Department of Homeland Security, Bureau of
Immigration and Customs Enforcement (“ICE”),
issued a detainer against him in June 2005, then again on
July 27, 2010, and in December 2016. (Doc. 1-1, p. 2.) It is
not clear from Ochoa's Petition what he requests the
Court do in this case. However, it appears that Ochoa seeks
to have the Court remove the immigration detainer against him
so that he may be eligible for halfway house placement.
Respondent asserts that the Court should not review the
relative merits of Ochoa's Petition because he has not
exhausted his available administrative remedies. (Doc. 8.)
Additionally, Respondent argues that the Court cannot grant
Ochoa the relief he seeks.
Whether Ochoa Exhausted his Administrative Remedies
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