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Fernandez v. Johns

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

February 27, 2019

AHMED FERNANDEZ, Petitioner,
v.
WARDEN TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         Petitioner Ahmed Fernandez (“Fernandez”), who is currently incarcerated at D. Ray James Correctional Facility in Folkston, Georgia, filed a 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus. Doc. 1. Respondent filed a Motion to Dismiss, and Fernandez filed a Response. Docs. 8, 12. Respondent filed a Reply, and Fernandez filed a Surreply. Docs. 14, 15. For the reasons which follow, I RECOMMEND the Court GRANT in part and DENY in part Respondent's Motion to Dismiss, DENY Fernandez's Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Fernandez in forma pauperis status on appeal.

         BACKGROUND

         The Southern District of Florida convicted Fernandez after he entered a plea of guilty to breaking and entering into carrier facilities, in violation of 18 U.S.C. § 2117(f). Doc. 1 at 1, 27; Doc. 1-1 at 1. The Southern District of Florida sentenced Fernandez to 60 months' imprisonment on February 9, 2016. Doc. 1 at 29. Fernandez has a projected release date of June 13, 2021, via good conduct time release. Id. at 30. Fernandez filed a motion for clarification regarding the Southern District of Florida's judgment and requested to receive credit for time served, which the trial court denied on January 9, 2018. Id. at 33. Immigration and Customs Enforcement (“ICE”) issued a detainer against Fernandez on April 24, 2018. Doc. 8-2 at 27.

         DISCUSSION

         In his Petition, Fernandez states he was arrested by Florida authorities on October 1, 2015, and was taken into federal custody on October 2, 2015. Doc. 1 at 7. Fernandez also states he has not been given credit toward his federal sentence from October 2, 2015, through February 6, 2017, and from September 17, 2017, through October 19, 2017. Doc. 1-1 at 6. Fernandez seeks to have all this time credited against his federal sentence.

         Respondent states Fernandez failed to exhaust his administrative remedies before filing his Petition. In the alternative, Respondent asserts Fernandez's sentence has been properly calculated, and he is not entitled to any credit against his federal sentence. Doc. 8.

         I. Whether Fernandez Exhausted his Administrative Remedies

         A. Legal Requirements for Exhaustion

         The Eleventh Circuit Court of Appeals has held that a § 2241 petitioner's failure to exhaust administrative remedies is not a jurisdictional defect. Santiago-Lugo v. Warden, 785 F.3d 467, 474 (11th Cir. 2015); see also Fleming v. Warden of FCI Tallahassee, 631 Fed.Appx. 840, 842 (11th Cir. 2015) (“[Section] 2241's exhaustion requirement was judicially imposed, not congressionally mandated, and . . . nothing in the statute itself support[s] the conclusion that the requirement [is] jurisdictional.”). Nevertheless, the Eleventh Circuit has noted “that the exhaustion requirement is still a requirement and that courts cannot ‘disregard a failure to exhaust . . . if the respondent properly asserts the defense.'” Id. (citing Santiago-Lugo, 785 F.3d at 475). Failure to exhaust administrative remedies is an affirmative defense, and inmates are not required to specially plead or demonstrate exhaustion in their complaint. Jones v. Bock, 549 U.S. 199, 216 (2007). Additionally, the United States Supreme Court has “held that the PLRA's [“Prison Litigation Reform Act's”] text suggests no limits on an inmate's obligation to exhaust- irrespective of any ‘special circumstances.' And that mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016).

         The requirement that the exhaustion of remedies occur “first in an agency setting allows ‘the agency [to] develop the necessary factual background upon which decisions should be based' and giv[es] ‘the agency a chance to discover and correct its own errors.'” Green v. Sec'y for Dep't of Corr., 212 Fed.Appx. 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159 F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)). Furthermore, requiring exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference with the administration of prisons” and allows “corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).[1]

         The Supreme Court has noted exhaustion must be “proper.” Id. at 92. “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91. In other words, an institution's requirements define what is considered exhaustion. Jones, 549 U.S. at 218. It is not the role of the court to consider the adequacy or futility of the administrative remedies afforded to the inmate. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). The court's focus should be on what remedies are available and whether the inmate pursued these remedies prior to filing suit. Id.

         Thus, under the law, prisoners must do more than simply initiate grievances; they must also appeal any denial of relief through all levels of review that comprise the agency's administrative grievance process. Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (“To exhaust administrative remedies in accordance with the PLRA, prisoners must ‘properly take each step within the administrative process.'”) (quoting Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27, 2007) (finding that a plaintiff who is still awaiting a response from the warden regarding his grievance is still in the process of exhausting his administrative remedies).

         B. Standard of Review for Exhaustion

         “Even though a failure-to-exhaust defense is non-jurisdictional, it is like” a jurisdictional defense because such a determination “ordinarily does not deal with the merits” of a particular cause of action. Bryant, 530 F.3d at 1374 (internal punctuation and citation omitted). Further, a judge “may resolve factual questions” in instances where exhaustion of administrative remedies is a defense before the court. Id. In these instances, “it is proper for a judge to consider facts outside of 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.” Id. at 1376.

         In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit set forth a “two-step process” that lower courts must employ when examining the issue of exhaustion of administrative remedies.[2] First, the court is to take the plaintiff's version of the facts regarding exhaustion as true. Id. at 1082. If, even under the plaintiff's version of the facts, the plaintiff has not exhausted, the complaint must be dismissed. Id. However, if the parties' conflicting facts leave a dispute as to whether plaintiff has exhausted, the court need not accept all of plaintiff's facts as true. Id. Rather, “the court then proceeds to make specific findings in order to resolve the disputed factual issues[.]” Id. “Once the court makes findings on the disputed issues of fact, it then decides whether under those findings the prisoner has exhausted his available administrative remedies.” Id. at 1083. The Eleventh Circuit has held that a district court may consider materials outside of the pleadings and resolve factual disputes regarding exhaustion in conjunction with a Rule 12(b)(6) motion to dismiss so long as the factual disputes do not decide the merits of the case. See Bryant, 530 F.3d at 1376-77.

         C. Analysis of Fernandez's Efforts at Exhaustion

         In his Petition, Fernandez asserts he exhausted his administrative remedies by filing the first and second steps of the grievance process at D. Ray James. Doc. 1-1 at 2. In addition, Fernandez states in response to the Motion to Dismiss he filed the last of the required administrative remedies on March 19, 2018, it was mailed certified on March 21, 2018, and it was delivered on March 23, 2018. Doc. 12 at 2; Doc. 12-1 at 2-5. While it appears Fernandez exhausted his administrative remedies at the first Turner step, out of ...


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