United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE.
a federal inmate currently incarcerated at McRae Correctional
Facility (“MCF”) in McRae, Georgia, brings the
above-captioned petition pursuant to 28 U.S.C. § 2241.
Having considered all the relevant pleadings, for the reasons
set forth below, the Court REPORTS and
RECOMMENDS Respondent's Motion to
Dismiss (doc. no. 9) be GRANTED, the
petition be DISMISSED without prejudice,
this civil action be CLOSED, and a final
judgment be ENTERED in favor of Respondent.
On October 7, 2016, Officer Ronald Haskins was delivering
inmate mail to cell K03-201 when he saw Petitioner sitting on
a toilet with a black cell phone. (Doc. no. 1-1, p. 14.)
While Officer Haskins never recovered a cell phone from
Petitioner, he filed Incident Report #2904789 alleging
Petitioner was in possession of a hazardous tool, namely the
black cell phone. (Id. at 13.) Prison officials
provided Petitioner with notice of the charged misconduct on
the same day. (Id.) The Committee referred the
Incident Report to a Disciplinary Hearing Officer for
notifying Petitioner in writing, Discipline Hearing Officer
(“DHO”) L'Drica King conducted
Petitioner's disciplinary hearing on October 18, 2016.
(King Decl. ¶¶ 7-10, doc. no. 9-2; doc. no. 9-2,
Attch. 1.) Despite being afforded the opportunity to do so,
Petitioner did not call any witnesses, present any
documentary evidence, or request staff assistance. (King
Decl. ¶ 11; doc. no. 9-2, Attch. 2, pp. 1-2.) After the
hearing, DHO King found Petitioner committed the infraction
of possessing a hazardous tool based on the eyewitness
account and written statement of Officer Haskins. (King Decl.
¶ 12; doc. no. 9-2, Attch. 2, pp. 3-4.) DHO King gave
Petitioner a copy of her written decision. (King Decl. ¶
16; doc. no. 9-2, Attch. 2, p. 4.)
Oversight Specialist in the Bureau of Prisons'
(“BOP”) Privatization Management Branch in
Washington, D.C., reviewed Petitioner's hearing and
certified DHO King's report as complying with BOP Program
Statement 5270.09. (King Decl. ¶ 14; doc. no. 9-2,
Attch. 3.) Petitioner submitted a BP-10 level challenging the
disciplinary action. (Dykes Decl. ¶ 6, doc. no. 9-1;
doc. no. 9-1, Attch. 2.) However, Petitioner never submitted
a BP-11 appeal. (Id.)
move for dismissal on the basis Petitioner failed to exhaust
his remedies by failing to submit a BP-11 appeal. (Doc. no.
9, pp. .) The Court agrees and GRANTS the
motion, as explained below.
The Exhaustion Requirement
seeking habeas relief, including relief pursuant to §
2241, are subject to administrative exhaustion requirements.
Santiago-Lugo v. Warden, 785 F.3d 467, 474-75 (11th
Cir. 2015); Davis v. Warden, FCC Coleman-USP I, 661
Fed.Appx. 561, 562 (11th Cir. 2016). Although exhaustion of
administrative remedies is not a jurisdictional requirement
in a § 2241 proceeding, “that does not mean that
courts may disregard a failure to exhaust and grant relief on
the merits if the respondent properly asserts the
defense.” Santiago-Lugo, 785 F.3d at 474-75.
However, “a court may skip over the exhaustion issue if
it is easier to deny . . . the petition on the merits without
reaching the exhaustion question.” Id. at 475
Eleventh Circuit has previously held there is no futility
exception to the requirement to exhaust administrative
remedies under § 2241. McGee v. Warden, FDC
Miami, 487 Fed.Appx. 516, 518 (11th Cir. 2012). However,
in determining that no futility exception is available, the
court relied on the jurisdictional nature of the exhaustion
requirement for § 2241 petitions. Id. Since the
court held in Santiago-Lugo the exhaustion
requirement is not jurisdictional for § 2241 petitions,
the court has not again addressed whether a futility
exception exists. Regardless, courts which apply a futility
exception do so in only “extraordinary circumstances,
” and require the petitioner to “bear the
burden of demonstrating the futility of administrative
review.” Fuller v. Rich, 11 F.3d 61, 62 (5th
Cir. 1994) (per curiam); see also Jones v.
Zenk, 495 F.Supp.2d 1289, 1297, 1299-1300 (N.D.Ga. July
6, 2007) (applying futility exception where BOP predetermined
by rulemaking issue Petitioner challenged).
Legal Standard for Exhaustion
as here, Defendant has filed a motion to dismiss based on
failure to exhaust administrative remedies, the Eleventh
Circuit has laid out a two-step process for courts to use in
resolving such motions. First, the Court looks to the factual
allegations made by both parties, taking the petitioner's
version as true where they conflict, and if in that light the
complaint is subject to dismissal for failure to exhaust
administrative remedies, Defendant's motion will be
granted. Turner v. Burnside, 541 F.3d 1077, 1082-83
(11th Cir. 2008) (citations omitted), cert. denied,
555 U.S. 1074 (2008)).
petition is not subject to dismissal at the first step, then
at step two the Court makes specific findings to resolve the
disputed factual issues, with Defendant bearing the burden of
proving Plaintiff has failed to exhaust his administrative
remedies. Id. Based on its findings as to the
disputed factual issues, the Court determines whether the
prisoner has exhausted his available administrative remedies
and thus whether the motion to dismiss should be granted.
Id. Because exhaustion “is treated as a matter
of abatement and not an adjudication on the merits, it is
proper for a judge to consider facts outside the pleadings
and to resolve factual disputes so long as the factual