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George v. Stone

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

July 19, 2018

TERRANCE GEORGE, Petitioner,
v.
STACEY N. STONE, Warden, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EFPS, 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. 10) 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 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.)

         Petitioner 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.

         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 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 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 omitted).

         C. BOP Administrative Remedy Program

         The BOP 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 ...


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