United States District Court, W.D. Oklahoma
L, PALK UNITED STATES DISTRICT JUDGE
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].
Federal Bureau of Prisons 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], 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);
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well as the argument originally made by the parties in the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
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.
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. The Court thus considers the
impact, if any, of Petitioner's post-Petition exhaustion
Discussion and analysis
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.
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).
the BOP asserts that the exhaustion requirement applies and
that it was not met, so exhaustion has not been waived by the
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
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 ...