Opinion
C. A. 4:22-1896-SAL-TER
12-09-2022
ANDRE BREWER, Petitioner, v. WARDEN, FCI EDGEFIELD Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
The Petitioner, Andre Brewer, (“Petitioner/Brewer”), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on June 15, 2022. On October 6, 2022, the Respondent filed a Motion to Dismiss or for Summary Judgment. (ECF No. 20). The undersigned issued an order filed October 7, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences if he failed to respond adequately. (ECF No. 16). Brewer failed to file a response.
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
RULE 41 DISMISSAL
A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
In the present case, the Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's Motion to Dismiss or for Summary Judgment or the court's order requiring him to respond. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b) without prejudice.
In the alternative, the Motion for Summary Judgment will be addressed below.
ANALYSIS
The Petitioner, an inmate in the custody of the Bureau of Prisons (“BOP”) and currently designated by the BOP to the Federal Correctional Institution Edgefield's Satellite Prison Camp, filed this petition seeking habeas relief pursuant to 28 U.S.C. § 2241, asserting that the BOP is violating his federal constitutional rights by failing to apply his earned time credits under the First Step Act of 2018 (“FSA”). (ECF No.1). Specifically, Petitioner asserts in his petition that the “BOP has violated 18 USC Section 3632 (d)(4) for failing to administer the First Step Act Federal Time credits along with failing to acknowledge, calculate, determine, recognize, credit or apply the time credits earned by Petitioner to his sentence.” (ECF No. 1-3 at 8). In the petition form, Petitioner admits that he has not presented this Ground in a prior court action or administrative proceeding. (Id.). Petitioner asserts that he has not filed administratively because exhaustion is futile. (Id. at 5-6). The Petitioner contends that he is entitled to 365 days of credit and immediate release to home confinement or placed in a half-way house. (Id. at 9-10).
In the petition, Petitioner asserts that he did not use any available procedures in the remedy program because “[t]here are time constraints that would cause irreparable harm from delay (II) this involves statutory construction; and (III) the BOP has already determined an incorrect release date rendering exhaustion futile.” (ECF No. 1-3 at 6).
Respondent seeks summary judgment based on the affirmative defense of exhaustion. In support of the motion, Respondent submitted the declaration of J. Carter (“Carter”), Legal Assistant for the South Carolina Consolidated Legal Center. (ECF No. 20-1). As a Legal Assistant, Carter has access to information regarding inmates in the custody of the Federal Bureau of Prisons (BOP). Id. Carter declares a review of SENTRY records shows that Petitioner has not filed any administrative remedy with regard to these allegations and has only filed one, unrelated, administrative remedy during his time in custody. Id.
All formal administrative remedy requests are logged into the national SENTRY database and given a unique identifying number. Id. An extension is added to the number which denotes the level at which the claim is filed. Id. Subsequent appeals of an issue will have the same identification number with a different extension identifying the level where filed. Id. The extension “-F1” indicates the filing was at the institution or field level. The extension “-R1” indicates the filing was at the regional level. Id. The extension “-A1” indicates the filing was at the national level. Id. If an appeal is rejected and re-filed at the same level, perhaps correcting the identified deficiencies, then the number will change but the letter will remain the same; i.e., “-A2.” Id.
The BOP's Administrative Remedy Program is found at 28 C.F.R. §§ 542.10 through 542.19. The BOP has a three-tiered formal administrative grievance process in addition to an informal resolution process. 28 C.F.R. §§ 542.10 et seq. An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. See id.; 28 C.F.R. §542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint to the warden within 20 calendar days after the date upon which the basis for the request occurred. See id.; 28 C.F.R. §542.14. The matter will be investigated, and a written response provided to the inmate. Id. If dissatisfied with the response, the inmate may appeal to the Regional Director within 20 days of the date of the Warden's response. See id.; 28C.F.R. §542.15(a). If dissatisfied with the regional response, the inmate may appeal to the General Counsel within 30 days of the Regional Director's response. Id. Appeal to the General Counsel is the final level of agency review. See id.; 28C.F.R. §542.15(a). If during this process, the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. See id.; 28 C.F.R. § 542.18. Inmates may not appeal issues that were not raised in previous lower level filings or combine appeals of separate lower level responses (different remedy numbers) into a single appeal. See id.; 28 C.F.R. §542.15(b)(2). Thus, each administrative remedy appeal must address the same issues addressed at the lower level in this remedy. See id.; 28 C.F.R. § 542.15(b)(2).
“Unlike petitions brought under 28 U.S.C. § 2254,which challenge the validity of a state court conviction and sentence, petitions brought under § 2241 generally challenge the execution or implementation of a sentence, such as parole matters, sentence computation, calculation of good-time credits, prison disciplinary actions, and transfers.” Clemmons v. South Carolina, No. 0:08-607-RBH, 2008 WL 2845636, *1 (D.S.C. July 18, 2008). Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in 28 U.S.C. § 2241 matter); Timms v. Johns, 627 F.3d 525 (4th Cir. 2010) (noting courts require “exhaustion of alternative remedies before a prisoner can seek federal habeas relief.”) (internal quotation marks omitted). Exhaustion allows prison officials to develop a factual record and “an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007).
It is clear in the law that Petitioner was required to exhaust his administrative remedies prior to filing a federal § 2241 petition. Warren v. United States, No. 10-1245, 2011 WL 4435671 at * 2 (D.S.C. June 29, 2011), adopted by, 2011 WL 4435655 (D.S.C. Sept. 23, 2011) (“It is well settled that a federal prisoner is required to exhaust his administrative remedies with BOP before filing an action pursuant to § 2241.”)(quoting Henderson v. Warden, Edgefield Satellite Prison Camp, 2009 WL 3317149 at * 2 (D.S.C. Oct. 14, 2009)) (citing Pelissero v. Thompson, 170 F.3d 442, 445 (4th Cir. 1999)). Additionally, the “BOP should be afforded the opportunity to correct any alleged errors, to develop its factual record, and apply its expertise to the situation.” Mero v. Phelps, C/A No. 4:20-cv-03615-MGL-TER, 2020 WL 7774378, at *2 (D.S.C. Nov. 2, 2020), report and recommendation adopted by 2020 WL 7769784 (D.S.C. Dec. 30, 2020).
In his petition, Petitioner admits that he has not exhausted his administrative remedies but asserts that exhaustion would be futile because he should be subject to immediate release and the matter involves an issue of statutory construction. futility. (ECF No. 1-3 at 6). Even if the court were to grant the relief he seeks-an additional 365 days of credit- his projected release date is not until January 27, 2025. (ECF No. 20 at 1, 13-14 and Respondent's exhibits). Petitioner therefore has not shown that exhaustion of his administrative remedies would be futile. Petitioner has failed to file a response to Respondent's dispositive motion.
Respondent states that Petitioner is eligible for a one-year early release under 18 U.S.C. 3621(e) for completion of the Residential Drug Abuse Treatment Program. (ECF No. 20 at 13-16; ECF 20-1, with attachments, and ECF 20-2). Petitioner began the nine month RDAP program on April 20, 2022, with an expected program completion date of January 26, 2023. (Id.).Even with the one-year early release, Petitioner is projected to be released in January 2025, over two years from present. (Id.). Furthermore, Petitioner will be required to complete the Community Treatment Services component of RDAP which will require a 120-day placement following his completion of the nine-month institutional program. (Id.).
CONCLUSION
Accordingly, it is recommended that the petition be dismissed pursuant to Rule 41b of the Federal Rules of Civil Procedure without prejudice.
In the alternative, it is recommended that Respondent's motion for summary judgment (ECF No. 20) be granted for failure to exhaust and this action be dismissed.
Petitioner's attention is directed to the important notice on the next page