Opinion
23 Civ. 8518 (LGS) (GWG)
11-30-2023
DERRICK GADSON, Petitioner, v. HOUSTON HOUSE AND BUREAU OF PRISONS, Respondents.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge
I. BACKGROUND
On August 10, 2023, pro se petitioner Derrick Gadson filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the District of Rhode Island. See Petition, filed Aug. 10, 2023 (Docket # 1) (“Pet.”). The petition alleged respondents incorrectly applied credits available under the First Step Act (“FSA”), see 18 U.S.C. § 3624(g)(1)(A), to his sentence, see Pet. at 7. The Government file a motion to dismiss, arguing that the District of Rhode Island lacked jurisdiction, that Gadson failed to exhaust his administrative remedies prior to filing his petition, and that he was not entitled to FSA credits. See Motion to Dismiss, filed Sept. 13, 2023 (Docket # 2) (“Gov't Mot.”). Gadson filed a response. See Response, filed Sept. 22, 2023 (Docket # 3) (“Pet. Response”). The District of Rhode Island transferred the case to the Southern District of New York. See Docket Entry dated Sept. 27, 2023.
After the case was transferred, the district court ordered that the Bureau of Prisons (“BOP”) be added as a respondent and directed the U.S. Attorney's Office to file a response to the petition by October 20, 2023, and for petitioner to file any opposition by November 3, 2023. See Order, filed Oct. 11, 2023 (Docket # 6).
The Government did not make any further response to the petition by the October 20, 2023 deadline. The Court's law clerk thereafter contacted the U.S. Attorney's Office to request an update on petitioner's detention status in light of the fact that petitioner's filings had indicated he could be released on November 18, 2023. See Pet. at 7. The Government filed a letter on November 20, 2023, indicating that petitioner was released from his halfway home on October 4, 2023. See Letter, filed Nov. 20, 2023 (Docket # 10). The Government relied on the arguments made in its earlier response to the petition and offered to brief the issue of mootness. Id. at 1.
II. DISCUSSION
Gadson's release moots the relief explicitly requested in his petition: namely, his release from his designated halfway home based on accumulated FSA credits. See Pet. at 7. While the relief sought in the petition is moot, Gadson's pro se status requires that we construe his petition liberally. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017). What is not moot is whether petitioner would have a right to apply any outstanding FSA credits to his term of supervised release. In instances where petitioners have sought to apply outstanding FSA credits to a term of supervised release, courts have come to different conclusions. Compare Goggans v. Jamison, 2023 WL 7389136, at *2 (S.D.N.Y. Oct. 13, 2023) (“[A]ny remaining balance of FSA Credits that [petitioner] may have had could not be applied to reduce his term of supervised release.”), with Lallave v. Martinez, 635 F.Supp.3d 173, 190 (E.D.N.Y. 2022) (“The BOP is directed to award Petitioner the FSA credits that she is entitled to . . . and to apply the remaining credits to reduce her time on supervised release.”). We thus find the petition is not moot.
It is not necessary to address the merits of his entitlement to FSA credits, however, because petitioner failed to exhaust his administrative remedies. “[F]ederal prisoners must exhaust their administrative remedies prior to filing a petition for habeas relief,” Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001); accord Whaley v. Pliler, 2023 WL 7243714, at *2 (S.D.N.Y. Nov. 3, 2023), unless exhaustion can be excused, see Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003). Exhaustion “requires compliance with the BOP's four-step Administrative Remedy Program.” Lallave, 635 F.Supp.3d at 181 (citing 28 C.F.R. § 542.10(a)). To exhaust administrative remedies, a petitioner must
[f]irst, . . . attempt to informally resolve the issue with prison staff. [28 C.F.R] § 542.13. If this is unsuccessful, the second step is to file a Request for Administrative Remedy form with the prison warden. Id. § 542.15(a). If the request is denied or the Warden fails to respond within 20 days, the third step is to appeal to the BOP Regional Director. Id. §§ 542.15(a), 542.18. If the appeal is denied or the Regional Director fails to respond within 30 days, the prisoner may appeal to the BOP General Counsel. Id. Once the General Counsel denies the claim or fails to respond within 40 days, the claim is considered administratively exhausted. Id. § 542.18. The regulations allow for the BOP to request an extension “once by 20 days at the institution level, 30 days at the regional level, or 20 days at the Central Office level,” so long as the inmate is notified in writing. Id. At a maximum, the entire process may take up to 161 days or just over five months.Lallave v. Martinez, 609 F.Supp.3d 164, 179 (S.D.N.Y. 2022).
Here, the uncontroverted evidence in the record shows that Gadson has failed to complete the four-step Administrative Remedy Program. While details regarding the first two steps are not clear, a declaration from Patrick McFarland, a Residential Reentry Manager at BOP, indicates that Gadson “failed to successfully file an Administrative Appeal with the BOP's Regional Office or Central Office regarding his FSA Time Credits.” See Declaration of Patrick McFarland, annexed as Ex. 1 to Gov't Mot. (Docket # 2-1), ¶ 17. Indeed, Gadson admits that he “didn't get to appeal . . . because [he] was being released soon.” Pet. Response. Gadson argues that the exhaustion requirement should be excused because he “figured [filing the petition first] would be a better way to make [his] case heard” and sought to avoid “wait[ing] months and months going back and forth sending letters” to BOP. Id.
Exhaustion may be excused where “(1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question.” Beharry, 329 F.3d at 62 (quoting Able v. U.S., 88 F.3d 1280, 1288 (2d Cir. 1996)). While “courts have waived the requirement when the pursuit of administrative remedies would either be futile or render the legal issue moot,” Gadson has not provided “more than mere predictions of failure if he pursued administrative remedies,” which distinguishes his case from those where exhaustion was deemed futile. Goren v. Apker, 2006 WL 1062904, at *4-5 (S.D.N.Y. Apr. 20, 2006) (finding that three attempted appeals that were all rejected on procedural grounds was sufficient to show further exhaustion was futile). Gadson's statement about wishing to avoid delay is also not sufficient to excuse exhaustion since courts have held that “the mere fact that petitioner's release date could arrive before administrative relief is insufficient to excuse a petitioner's failure to exhaust his administrative remedies.” Id. at *4; accord Hodge v. United States (BOP), 2021 WL 738707, at *3 (S.D.N.Y. Feb. 24, 2021) (“[A]lthough by the time Hodge properly began the administrative process, it had the potential to take longer than the time remaining on his federal sentence, that would not excuse his failure to exhaust.”); Burgess v. Daniels, 2013 WL 1858555, at *5 (D. Colo. May 2, 2013) (finding that the “waiting period” of seeking relief from BOP's Central Office “does not render proper exhaustion futile”). Accordingly, Gadson's petition should be dismissed for failure to exhaust administrative remedies.
Finally, we note that Gadson has effectively disappeared inasmuch as he has not provided the Court with an updated mailing address and the record reflects that the last document issued by the Court and mailed by the Clerk's Office was returned as “Unable to Forward.” See Docket Entry dated November 16, 2023. Thus, dismissal may be appropriate for failure to prosecute under Fed.R.Civ.P. 41(b) in light of Gadson's failure to provide an updated address. See, e.g., Christman v. Kalimulina, 2022 WL 17826119, at *2 (S.D.N.Y. Dec. 21, 2022) (“Courts have repeatedly recognized that dismissal for failure to prosecute is appropriate where a plaintiff effectively disappears by failing to provide a means by which he or she can be reached.”) (collecting cases). It is not necessary to reach this issue, however, in light of the failure to exhaust.
Conclusion
For the foregoing reasons, Gadson's petition should be denied for failure to exhaust administrative remedies.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Schofield. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).