United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EM'S UNITED STATES MAGISTRATE JUDGE.
an inmate at McRae Correctional Institution
(“MCI”) in McRae, Georgia, commenced the
above-captioned case ostensibly pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Because Plaintiff is incarcerated and seeks redress from a
governmental entity or officer or employee of a governmental
entity, Plaintiff's complaint must be screened to protect
potential defendants. See Leal v. Georgia Dep't of
Corr., 254 F.3d 1276, 1277-78 (11th Cir. 2001) (per
curiam); 28 U.S.C. § 1915A.
SCREENING OF THE COMPLAINT
names as Defendants: (1) Thomas Kane; and (2) Sarah Saldana.
(Doc. no. 1, p. 1.) Taking all of Plaintiff's allegations
as true, as the Court must for purposes of the present
screening, the facts are as follows.
the Federal Bureau of Immigration and Customs Enforcement
(“ICE”) nor the Bureau of Prisons
(“BOP”) considers whether Plaintiff is a
non-deportable immigrant or an American national who owes
permanent allegiance to the United States in determining
whether to place a detainer against him. (Id. at
1-2.) Plaintiff served in the United States Army and was
discharged honorably. (Id. at 2.) Plaintiff is a
non-deportable Cuban, but ICE Director Sarah Saldana placed a
detainer against him. (Id.) Because of the detainer,
BOP Director Thomas Kane excluded him from: (1) participating
in a one-year sentence reduction upon completion of the
Residential Drug Abuse Program (“RDAP”); (2)
participating in a Residential Reentry Center or home
detention for the last twelve months of his sentence; (3)
being transferred to a facility closer to his family; and (4)
being placed in a minimum security prison camp.
(Id.) Furthermore, Plaintiff is housed in a
low-security private prison, where the treatment of
prisoners, conditions of confinement, food, and healthcare
are worse. (Id.) The private prisons offer lower
pay, less training, and fewer educational programs for
employees and experience hiring shortages. (Id. at
2-3.) BOP should not exclude legal and illegal immigrants
from participating in the one-year sentence reduction upon
completion of RDAP. (Id. at 3.) Plaintiff states he
is not required to exhaust administrative remedies as an
“alien habeas petitioner with a detainer in place
against him.” (Id.)
relief, Plaintiff requests: (1) removal of the ICE detainer
filed against him; (2) $75, 000 in damages against Ms.
Saldana; (3) $75, 000 in damages against Mr. Kane; (4) Mr.
Kane to stop excluding legal and illegal immigrants from
participating in the one-year sentence reduction upon
completing RDAP; and (5) Mr. Kane to stop excluding
non-deportable inmates such as American nationals and Cubans
from being placed in halfway houses and minimum security
prison camps. (Id. at 4-5.)
Plaintiff describes this case as a “Bivens Civil Rights
Action, ” refers to himself predominantly as
“plaintiff, ” and seeks money damages, Plaintiff
also challenges his ICE detainer and exclusion from certain
BOP programs. Thus, Plaintiff appears to have filed a
“mixed” petition asserting claims under both
Bivens and 28 U.S.C. § 2241. See
Gonzales-Corrales v. I.C.E., 522 Fed.Appx. 619,
622-23 (11th Cir. 2013) (treating filing as
“mixed” petition and addressing both § 2241
and Bivens claims). However, as described below,
Plaintiff is not entitled to relief under either
Plaintiff's Bivens Claims Should Be Dismissed
Because Plaintiff Failed to Exhaust Administrative Remedies
1997e(a) of the Prison Litigation Reform Act
(“PLRA”) provides that “[n]o action shall
be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison or other correctional facility
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Dismissal for
failure to state a claim is appropriate if it is clear from
the face of a complaint that the plaintiff failed to exhaust
administrative remedies. See Jones v. Bock, 549 U.S.
199, 215 (2007); Bingham v. Thomas, 654 F.3d 1171,
1175 (11th Cir. 2011); Solliday v. Federal Officers,
413 Fed.Appx. 206, 208 (11th Cir. 2011); Anderson v.
Donald, 261 Fed.Appx. 254, 256 (11th Cir. 2008). The
PLRA's mandatory exhaustion requirement “applies to
all prisoners seeking redress for prison circumstances or
occurrences.” Porter v. Nussle, 534 U.S. 516,
520 (2002). Moreover, the Court does not have discretion to
waive the requirement, even if it can be shown that the
grievance process is futile or inadequate. See Smith v.
Terry, 491 Fed.Appx. 81, 83 (11th Cir. 2012);
Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir.
1998). Federal regulations provide the procedure for federal
inmates to exhaust administrative remedies, including
submission of grievances and appeals by prisoners who are
dissatisfied with a response to a grievance. See 28 C.F.R.
§§ 542.14, 542.15.
the PLRA also “requires proper exhaustion.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006). In order to
properly exhaust his claims, a prisoner must “us[e] all
steps” in the administrative process; he must also
comply with any administrative “deadlines and other
critical procedural rules” along the way. Id.
at 90 (internal quotation omitted). If a prisoner fails to
complete the administrative process or falls short of
compliance with procedural rules governing prisoner
grievances, he procedurally defaults his claims. Johnson
v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005).
because exhaustion of administrative remedies is a
“precondition” to filing an action in federal
court, prisoners must complete the administrative process
before initiating suit. Poole v. Rich, 312 Fed.Appx.
165, 166 (11th Cir. 2008); see also Higginbottom v.
Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). Finally,
under the PLRA, the Court has no discretion to inquire into
whether administrative remedies are “plain, speedy,
[or] effective.” Porter, 534 U.S. at 524; see also
Alexander, 159 F.3d at 1326. Rather, under the PLRA's
“strict exhaustion” requirement, administrative
remedies are deemed “available” whenever
“‘there is the possibility of at least some kind
of relief.'” Johnson, 418 F.3d at 1155, 1156.
Plaintiff acknowledges he has not exhausted his
administrative remedies but argues exhaustion is not required
where an “alien habeas petitioner” challenges a
BOP regulation preventing him from participating in programs
due to a detainer. (Doc. no. 1, pp. 3-4.) Plaintiff cites
decisions by the Fifth Circuit addressing the exhaustion
requirement for § 2241 petitions in support.
(Id. at 4 (citing Gallegos-Hernandez v. United
States,688 F.3d 190, 194 (5th Cir. 2012); Fuller v.
Rich,11 F.3d 61, 62 (5th Cir. 1994)). However, the
Eleventh Circuit has determined prisoners asserting
Bivens claims must exhaust available administrative
remedies, even when those remedies are futile or inadequate.
Alexander v. Hawk,159 F.3d 1321, 1325-28 (11th Cir.
1998); see also Lambert v. United States, 198
Fed.Appx. 835, 840 (11th Cir. 2006) (citing Alexander).
Accordingly, because it is ...