United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
Wayne Baptiste (“Baptiste”), who is currently
incarcerated at the Federal Correctional Institution in
Jesup, Georgia, filed a 28 U.S.C. § 2241 Petition for
Writ of Habeas Corpus. Doc. 1. Respondent filed a Motion to
Dismiss, and Baptiste filed a Response. Docs. 8, 11. For the
reasons which follow, I RECOMMEND the Court
GRANT Respondent's Motion to Dismiss,
DENY Baptiste's Petition,
DIRECT the Clerk of Court to enter the
appropriate judgment of dismissal and CLOSE
this case, and DENY Baptiste in forma
pauperis status on appeal.
6, 2000, Baptiste was convicted in the Southern District of
Florida of conspiracy to possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. §
846. Doc. 8-1 at 7. Baptiste was sentenced to 360 months'
imprisonment. Id. On October 25, 2017, Baptiste was
also convicted in the Eastern District of Arkansas of
possession of a prohibited object in prison, in violation of
18 U.S.C. § 1791(a)(2), and was sentenced to a year and
a day in prison. Id. at 7-8. He has a projected
release date of August 16, 2026 via good conduct time
release. Id. at 7.
result of disciplinary hearing proceedings based on a Bureau
of Prisons' (“BOP”) Code 113 charge for
possession of narcotics during his incarceration, Baptiste
was sanctioned with the loss of 41 days' good-conduct
time, 15 days' disciplinary segregation, and loss of
visitation privileges for 180 days. Doc. 1 at 2; Doc. 8-2 at
13-14. Through his Petition, Baptiste challenges the
BOP's disciplinary proceedings and resulting sanctions
stemming from the Code 113 charge, doc. 1, which are separate
from the above-described criminal prosecutions and sentences.
Petition, Baptiste contends his due process rights were
violated during the disciplinary proceedings relating to the
Code 113 charge in three ways. First, Baptiste asserts he did
not receive a copy of the incident report within 24 hours of
the charged incident. Doc. 1 at 6-7. Second, Baptiste avers
his right to call witnesses for the disciplinary hearing was
hindered because he was transferred from the institution
where the violation occurred. Baptiste asserts he was told at
his new institution-mistakenly-that his witnesses needed to
be at the same institution where he was located. Id.
at 7. Third, he was required “by rule” to receive
a copy of the disciplinary hearing officer's
(“DHO”) report within 15 days, yet he did not
receive a copy of the DHO report until 4 months
later. Id. Baptiste maintains this
“intentional lapse” between the issuance of the
DHO report and his receipt adversely affected his ability to
obtain witness statements and legal counsel for his appeal.
Id. As relief, Baptists asks the Court to order the
BOP to expunge his incident report and restore his lost
good-conduct time. Id. at 8.
avers Baptiste failed to exhaust his administrative remedies
regarding his contentions he was not allowed to call
witnesses and that he did not receive the DHO report on time.
Doc. 8 at 3. Additionally, Respondent contends all of
Baptiste's due process requirements were met as a result
of the disciplinary proceedings. Id. at 5. The Court
addresses Respondent's arguments in turn.
Whether Baptiste Exhausted His Administrative
Legal Requirements for Exhaustion
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.'” Fleming, 631 Fed.Appx. at 842
(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).
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
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. As a result, 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.
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
Standard of Review for Exhaustion
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