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Augustin v. Stone

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

April 17, 2018

DESGRANGE AUGUSTIN, Petitioner,
v.
STACEY N. STONE, Warden, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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.

         I. BACKGROUND

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 disposition. (Id.)

         After 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.)

         The DHO 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.)

         Respondents 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.

         II. DISCUSSION

         A. The Exhaustion Requirement

         Prisoners 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 (citation omitted).

         The 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).

         B. Legal Standard for Exhaustion

         Where, 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)).

         If the 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 ...


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