United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EFPS, 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. 10) be GRANTED, the
petition be DISMISSED without prejudice,
this civil action be CLOSED, and a final
judgment be ENTERED in favor of Respondent.
April 20, 2016, United States Immigration and Customs
Enforcement (“ICE”) took custody of Petitioner at
the Krome Detention Center in Miami, Florida. (Johnson Decl.,
doc. no. 10-2, ¶ 3; doc. no. 10-2, Attch. 1.) The grand
jury for the Southern District of Florida indicted Petitioner
for Illegal Reentry on May 9, 2016. (Johnson Decl. ¶ 4;
doc. no. 10-2, Attch. 2.) On May 13, 2016, after the
indictment was returned, ICE turned Petitioner over to U.S.
Marshal custody pending trial. (Johnson Decl. ¶ 3; doc.
no. 10-2, Attch. 1.) On August 19, 2016, United States
District Judge Ursula Ungaro sentenced Petitioner to
thirty-months in prison for his offense. (Johnson Decl.
¶ 4; doc. no. 10-2, Attch. 3.)
filed the present motion contending he has not been credited
for the twenty-three days he spent in U.S. Coast Guard and
ICE custody. (Doc. no. 1, p. 3; doc. no. 2.) Respondents move
for dismissal on the basis Petitioner failed to exhaust his
remedies by failing to submit a BP-11 appeal. (Doc. no. 10,
pp. 3-6.) 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 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
disputes do not decide the merits and the parties have
sufficient opportunity to develop a record.” Bryant
v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) (citations
BOP Administrative Remedy Program
Administrative Remedy Program allows an inmate to seek formal
review of any issue related to his confinement. 28 C.F.R.
§ 542.10. An inmate must first attempt to resolve the
issue informally. 28 C.F.R. § 542.13(a). Should the
inmate be unable to resolve the issue informally, he must
file a formal written Administrative Remedy Request on the
appropriate BP-9 form within twenty calendar days of the
basis for the Request. 28 C.F.R. § 542.14. If an inmate
is dissatisfied with the Warden's response to his BP-9
Request, he must submit a BP-10 Appeal to the Regional
Director within twenty calendar days of the Warden's
signed response. 28 C.F.R. § 542.15. If the inmate is
dissatisfied with the Regional Director's response, he
must submit a BP-11 Appeal, along with one complete copy of
the institutional and regional filings and responses, to the