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Perez v. Jones

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

April 2, 2019

RAUL PEREZ, Petitioner,
v.
TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         Petitioner Raul Perez (“Perez”) filed this 28 U.S.C. § 2241 Petition on December 3, 2018. Doc. 1. Respondent filed a Motion to Dismiss on February 8, 2019. Doc. 9. Perez did not file a response, despite being directed and having ample opportunity to do so. Doc. 10. For the following reasons, I RECOMMEND the Court GRANT Respondent's unopposed Motion to Dismiss and DISMISS Perez's Petition without prejudice for failure to exhaust his administrative remedies.[1] I further RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Perez leave to appeal in forma pauperis.

         BACKGROUND

         In his Petition, Perez asserts the Bureau of Prisons (“BOP”) discriminated against him by refusing to designate him to a facility that offers inmates access to the Residential Drug Abuse Program (“RDAP”), as the sentencing court recommended, and by sending him to a “deportation facility.” Doc. 1 at 6-7; Doc. 1-1 at 1. Perez asks this Court to compel the BOP to send him to a facility close to his family that offers the RDAP. Doc. 1 at 8.

         Respondent moves to dismiss Perez's Petition based on Perez's failure to exhaust his administrative remedies, Perez sets forth conditions of confinement claims that are not cognizable under § 2241, Perez's challenge exceeds the scope of judicial review of BOP's decisions, and Perez is not eligible for participation in the RDAP. Doc. 9. Perez did not respond to the Motion to Dismiss.

         DISCUSSION

         I. Whether Perez 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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