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Gonzalez-Morales v. Farley

United States District Court, W.D. Oklahoma

September 6, 2019

ROBERT FARLEY, as senior warden, GPCF, Respondent.



         Before the Court are several requests or motions which have been filed subsequent to Petitioner filing his Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 [Doc. No. 1].

         I. Introduction

         The Federal Bureau of Prisons[1] filed a Motion to Dismiss for Failure to State a Claim [Doc. No. 11], to which Petitioner responded and the BOP replied. See Resp., Doc. No. 12; Reply, Doc. No. 13. On May 24, 2019, U.S. Magistrate Judge Suzanne Mitchell issued a Report and Recommendation (“R&R”) in which she recommended that the BOP's dismissal motion [Doc. No. 11] be granted and that the Court dismiss Petitioner's Petition. See R. & R., Doc. No. 14. Petitioner filed objections to Judge Mitchell's R&R [Doc. No. 15][2], to which the BOP responded and Petitioner replied. See Resp. to Objs., Doc. No. 16; Reply to Objs., Doc. No. 19. The Court reviews de novo any portion of the R&R to which Petitioner specifically objected. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).

         Next, Petitioner filed a Motion Amending Objections to the Report and Recommendation to Comply with Local Court Rules [Doc. No. 20]. The BOP responded, Petitioner replied, and Petitioner's motion is at issue. See Resp., Doc. No. 23; Reply, Doc. No. 24. The Court construes Petitioner's request as seeking leave of the Court to supplant his objections to Judge Mitchell's R&R with his new filing, and the Court GRANTS Petitioner's request. The Court will consider Petitioner's now-accepted objections [Doc. No. 20], the BOP's response [Doc. No. 16], and Petitioner's reply [Doc. No. 19] (as well as the argument originally made by the parties in the briefs addressing the BOP's dismissal request) in determining whether to adopt the R&R issued by Judge Mitchell.[3]

         Petitioner then filed a Motion Requesting Stay of the Proceedings [Doc. No. 21]. The BOP responded, and Petitioner's request for a stay is at issue. See Resp., Doc. No. 22; Reply, Doc. No. 25. Petitioner also filed a Motion for Appointment of Counsel [Doc. No. 26]. The BOP responded, and Petitioner's motion is at issue. See Resp., Doc. No. 28.

         Finally, after Judge Mitchell issued her R&R, but before the Court ruled on Petitioner's objections thereto, Petitioner notified the Court that he now has completed the administrative appeals that he previously had not exhausted. See Mot. to Notify Court of Completion of the Administrative Remedy, Doc. No. 27.[4] The Court thus considers the impact, if any, of Petitioner's post-Petition exhaustion herein.

         II. Discussion and analysis

         The Court first considers Petitioner's Objections [Doc. No. 16] to Judge Mitchell's R&R [Doc. No. 14]. The BOP seeks dismissal of Petitioner's claim against it on two grounds: (1) that Petitioner did not exhaust his administrative remedies and (2) on the substantive merits of Petitioner's claim. Because the Court finds dismissal based on the former is proper, the Court does not consider the latter. Judge Mitchell found that 28 U.S.C. § 2241 (the statute under which Petitioner seeks habeas relief) requires the exhaustion of available administrative remedies and that Petitioner had not exhausted his administrative remedies prior to filing his § 2241 Petition because he only completed some of the steps required to exhaust his administrative remedies fully. See R&R, Doc. No. 14. She further found that Petitioner was not excepted from the exhaustion requirement by futility. See Id. The Court concurs with and fully adopts Judge Mitchell's determination and analysis.

         Section 2241 habeas requests are subject to a non-jurisdictional exhaustion requirement. See Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (“The exhaustion of available administrative remedies is a prerequisite for § 2241 habeas relief, although . . .the statute itself does not expressly contain such a requirement.”). The opinions cited by Petitioner-Gonzalez v. O'Connell, 355 F.3d 1010 (7th Cir. 2004), and Capps v. Sullivan, 13 F.3d 350 (10th Cir. 1993)-do not state otherwise. Gonzalez relates to administrative appeal of a pre-deportation custody and bail determination in an immigration proceeding, not (as here) the administrative appeal of the decision within a correctional facility. See 355 F.3d at 1016. And while Capps indicates in dicta that “[n]o statutory exhaustion requirement applies to § 2241” (13 F.3d at 354 n.2), it does not address the non-statutory exhaustion requirement at issue here. See Garza, 596 F.3d at 1203. Moreover, this Court is bound to adhere to on-point Tenth Circuit precedent regarding exhaustion of administrative remedies in § 2241 cases. See Williams v. Kastner, No.CIV-13-1280-C, 2014 WL 1875104, at *1 (W.D. Okla. May 9, 2014) (rejecting an argument similar to that asserted by Petitioner).

         Here, the BOP asserts that the exhaustion requirement applies and that it was not met, so exhaustion has not been waived by the BOP.

BOP regulations require a prisoner to attempt informal resolution of a complaint and, if that fails, to submit a formal request for an administrative remedy to the institution. If the inmate does not obtain a satisfactory resolution from the institution itself, he then may file a regional appeal followed by a national appeal.

Garza, 596 F.3d at 1204 (citation omitted). Although the regional portion of the appeal differs somewhat for a facility such as that in which Petitioner is housed as compared to a true BOP facility, the levels of administrative appeal are generally the same. Here, Petitioner admits that he had not, when he filed the § 2241 Petition, exhausted his administrative remedies because he did not complete the ultimate step of a national appeal prior to filing his § 2241 Petition. Thus, his administrative remedies were not exhausted.

Petitioner is not due a futility exception from the exhaustion requirement based on the circumstances of this case. Petitioner asserts that he did not receive a decision on his regional appeal in a timely fashion (and before he initiated this lawsuit) and therefore could not make his national appeal. But when such a situation exists, a prisoner may not decline to make the national appeal. Instead, “if the inmate does not receive a response within the time allotted for reply [from the regional appeal], including extension, the inmate may consider the absence of a response to be a denial at that level.” Acosta v. Daniels, 589 Fed.Appx. 870, 872 (10th Cir. 2014) (unpublished) (quoting 28 C.F.R. § 542.18). Applied here, once Petitioner did not receive a response to his regional appeal in the time required for his regional appeal to be responded to (including any available extensions), “the fact that he never received it within the allotted time is equivalent to a denial at that level” and “he was entitled to [proceed to the next level] once his [regional] appeal was deemed denied based on a lack of response.” Id.; see also Eldridge v. Berkebile, 576 Fed.Appx. 746, 748 (10th Cir. 2014) (unpublished) (“Once [the petitioner] failed to receive a timely response to his BP-9, he could have considered that level denied and filed a BP-10, proceeding next to a BP-11. He did not, proceeding directly to district court. He thus failed to exhaust his available administrative remedies. [He] has not shown that proceeding to the end ...

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