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Perez v. Johns

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

January 19, 2018

MATEO PEREZ, Petitioner,
v.
TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Petitioner Mateo Perez ("Perez"), who is housed at the 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. 8.) For the reasons which follow, I RECOMMEND that the Court DISMISS Perez's Petition WITHOUT PREJUDICE, DIRECT the Clerk of Court to CLOSE this case, and DENY Perez in forma pauperis status on appeal.[1]

         BACKGROUND

         Perez pleaded guilty in the United States District Court for the Northern District of Georgia to illegal reentry of deported alien, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Order, United States v. Perez-Maldonado, 2:11-cr-9 (N.D.Ga. Apr. 15, 2011), ECF. No. 18. On June 14, 2011, the Honorable William C. O'Kelley sentenced Perez to 54 months' imprisonment. J., United States v. Perez-Maldonado, 2:11-cr-9 (N.D.Ga. June 20, 2011), ECF. No. 27, p. 2. Subsequently, Perez pleaded guilty in the same District to aiding and abetting a conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 (b)(1)(A)(ii), 846, and 18 U.S.C. § 2. Plea, United States v. Perez, 1:11-cr-264 (N.D.Ga. Mar. 28, 2013), ECF No. 398-1. On August 23, 2013, the Honorable Amy Totenberg sentenced Perez to 135 months' imprisonment. 1, United States v. Perez, 1:11-cr-264 (N.D.Ga. Sep. 6, 2013), ECF No. 499, p. 2. Judge Totenberg made clear that the Bureau of Prisons ("BOP") must give Perez credit towards this sentence for all time Perez served beginning with his arrest on January 26, 2011. Id. Additionally, Judge Totenberg ordered that the sentence should run concurrent with any sentence Perez was already serving. Id. On July 1, 2016, Judge Totenberg amended Perez's sentence, reducing the term of imprisonment from 135 months to 121 months' imprisonment. Order, United States v. Perez, 1:11-cr-264 (N.D.Ga. July 5, 2016), ECF No. 674. However, Judge Totenberg ordered that all other provisions of the September 6, 2013 judgment shall remain in full force and effect.[2]

         Perez filed his Petition on June 19, 2017. (Doc. 1.) Perez asserts that the BOP improperly calculated the service of his August 23, 2013 sentence. Id. Specifically, he contends that the BOP failed to give him credit for time he spent in custody on his federal charges from June 14, 2011, to August 23, 2013. (Id. at p. 8.)

         On September 7, 2017, Respondent filed his Response, arguing that Perez failed to exhaust his administrative remedies prior to filing his Petition. (Doc. 12, pp. 4-6.) Moreover, Respondent contends that Perez is not entitled to the credit he requests in his Petition as the BOP properly calculated his sentence and gave him credit in that calculation for the time he now seeks.[3] (Id. at p. 7.)

         DISCUSSION

         I. Whether Perez Exhausted his Administrative Remedies

         A. Legal Requirements for Exhaustion

         The Eleventh Circuit 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 Fed.Appx. 840, 842 (11th Cir. 2015) ("[Section] 224l'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 Fed.Appx. 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.").

         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 Fed.Appx. 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).[4]

         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 [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 prisoner 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 Review for Exhaustion

         "Even 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 resolve factual disputes so long as the ...


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