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Farinas v. Kane

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

February 8, 2019

JUAN CARLOS FARINAS, Plaintiff,
v.
THOMAS KANE and SARAH SALDANA, Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EM'S UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         I. SCREENING OF THE COMPLAINT

         A. BACKGROUND

         Plaintiff 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.

         Neither 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.)

         As 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.)

         B. DISCUSSION

         While 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 characterization.

         1. Plaintiff's Bivens Claims Should Be Dismissed Because Plaintiff Failed to Exhaust Administrative Remedies

         Section 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.

         Furthermore, 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).

         Also, 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.

         Here, 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 ...


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