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Perez-Hernandez v. Johns

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

February 27, 2019

TRACY JOHNS, Respondent.



         Petitioner Jorge Perez-Hernandez's (“Perez-Hernandez”) filed this 28 U.S.C. § 2241 Petition originally as a mandamus action in the Northern District of Georgia. Doc. 1. That court directed that the cause of action be changed to a 28 U.S.C. § 2241 Petition and transferred the case to this District. Doc. 2. Respondent filed a Motion to Dismiss. Doc. 11. Perez-Hernandez did not file a response, despite having ample opportunity to do so. Docs. 12, 15, 17. For the following reasons, I RECOMMEND the Court GRANT Respondent's unopposed Motion to Dismiss and DISMISS Perez-Hernandez's Petition without prejudice for failure to exhaust his administrative remedies.[1] I further RECOMMEND that the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Perez-Hernandez leave to appeal in forma pauperis.


         In his Petition, Perez-Hernandez requests that Immigration and Customs Enforcement (“ICE”) remove his public safety factor (“PSF”) because he is a “non-deportable Alien.” Doc. 1 at 1. Specifically, Perez-Hernandez asserts that the immigration judge who presided over his removal proceedings ordered that his “exclusion and deportation from the United States to Cuba . . . is hereby withheld pursuant to Section 234(h) of the Act[.]” Id. Perez-Hernandez contends the immigration judge's order, coupled with the lack of a repatriation treaty between the United States and Cuba, effectively stayed his removal. Id. at 2. Perez-Hernandez maintains the PSF designation prevents him from a number of benefits he would be entitled to if he were housed in a Bureau of Prisons' (“BOP”) facility, such as participation in a drug-treatment program and admission to a halfway-house program. Id.

         Respondent moves to dismiss Perez-Hernandez's Petition for the following reasons: Perez-Hernandez failed to exhaust his administrative remedies; Perez-Hernandez asserts conditions-of-confinement claims that are not cognizable under § 2241; Perez-Hernandez is not in the custody of ICE; Perez-Hernandez's challenge to his status as a deportable alien exceeds the scope of judicial review of BOP's decisions; and Perez-Hernandez is not eligible for early release and participation in the BOP's residential drug-treatment program. Doc. 11. Perez-Hernandez requested, and the Court granted, two extensions of time for Perez-Hernandez to respond to Respondent's Motion to Dismiss. Docs. 15, 17. Despite the extensions, Perez-Hernandez did not respond to the Motion to Dismiss.


         I. Whether Perez-Hernandez 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).[2] 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).[3]

         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 ...

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