Opinion
Prisoner Habeas Corpus 28 U.S.C. § 2241, Civil Action No. 1:05-CV-733-TWT.
June 29, 2006
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and this court's Local Civil Rule 72.1. Let the same be filed and a copy, with a copy of this order, be served upon counsel for the parties.
Each party may file written objections, if any, to the attached Report and Recommendation within ten (10) days after being served with a copy of it. 28 U.S.C. § 636(b)(1). Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appeal of factual findings will be limited to a review for plain error or manifest injustice.United States v. Slay, 714 F.2d 1093 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
The Clerk is directed to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.
IT IS SO ORDERED.
MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
Petitioner seeks via 28 U.S.C. § 2241 to challenge his placement in the "sexual misconduct/pilot program" at the United States Penitentiary in Atlanta, Georgia ("USP-Atlanta"), which includes being confined in administrative segregation. As relief, Petitioner seeks release from administrative segregation. Currently before the court are the petition [Doc. 1] and the Respondent's response [Doc. 5].Respondent asks the court to dismiss the petition as moot because Petitioner has been released from administrative segregation and transferred from USP-Atlanta to the United States Medical Center for Federal Prisoners in Springfield, Missouri. Respondent also asks the court to dismiss the petition on the ground that Petitioner has failed to exhaust his administrative remedies.
When there is no longer a case or controversy to litigate in a habeas corpus action, and a favorable decision on the merits would not entitle the petitioner to any additional relief, the habeas petition is moot. United States ex rel. Graham v. United States Parole Comm'n, 732 F.2d 849, 850 (11th Cir. 1984) (citingO'Shea v. Littleton, 414 U.S. 488 (1974)). In this case, the court can provide no additional relief as Petitioner has been released from administrative segregation and transferred to another prison. Therefore, the instant petition is moot. See Swaissi v. Cotton, No. 3:01-CV-1629-M, 2001 WL 1480745, at *2 (N.D. Tex. Nov. 20, 2001) (accepting magistrate judge's report and recommendation that case was moot because prisoner was released from administrative segregation such that request for release from such segregation could not be granted); Hood v. Crabtree, No. 99-35678, 2000 WL 1598943, at *1 (9th Cir. Oct. 26, 2000) (unpublished decision) (holding petition seeking release from disciplinary segregation moot after petitioner was transferred to another prison); Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996) (holding transfer from prison where prisoner was segregated renders request for release from segregation moot); Brown El v. Delo, No. 94-3279, 1995 WL 573442, at *1 (8th Cir. July 27, 1995) (unpublished decision) (holding release from administrative segregation and transfer to another prison facility renders moot request for release from administrative segregation). See also De La Teja v. United States, 321 F.3d 1357, 1362 (11th Cir. 2003) ("If events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to afford the plaintiff or appellant meaningful relief, then the case becomes moot and must be dismissed.").
It appears that the exception to the mootness doctrine in cases that are "capable of repetition, but evading review" does not apply here. In order to demonstrate that exception, Petitioner must "make a reasonable showing that he will again be subjected to the alleged illegality." City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983); Medberry v. Crosby, No. 04-16562, slip op. at 2 (11th Cir. June 15, 2005) (Gov. Ex. A to response). Here, there is no evidence that Petitioner will be transferred back to USP-Atlanta and there is thus no evidence that he will again be subjected to administrative segregation in connection with USP-Atlanta's "sexual misconduct/pilot program." Because the capable-of-repetition doctrine does not apply here, the petition is moot. See Medberry, slip op. at 2 (holding exception did not apply to prisoner because he failed to demonstrate that the same circumstances about which he complained in his habeas petition were the impetus for the same action again by prison authorities); Higgason, 83 F.3d at 811 (stating that request for release from administrative segregation is moot after prisoner is transferred unless prisoner can demonstrate that he is likely to be re-transferred).
The undersigned concludes further that Petitioner has failed to exhaust his administrative remedies. Prisoners seeking habeas relief pursuant to 28 U.S.C. § 2241 must exhaust administrative remedies. Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir.),cert. denied, 541 U.S. 1036 (2004). The following process exists for exhausting administrative remedies under the BOP's administrative remedy procedure:
The BOP's administrative remedy procedures is a three-tiered process whereby an inmate may redress the deprivation of any right to which he is entitled. . . . The process begins with a staff member at the facility where he . . . is housed. 28 C.F.R. § 542.13(a). If this informal resolution is not successful, the inmate may file a formal written complaint, on the appropriate form, to the warden at the local institution level. 28 U.S.C. § 542.13(b). . . . If the inmate is not satisfied with the warden's response, that response may be appealed, within twenty days of the response, to the regional director. 28 C.F.R. § 542.15. If the inmate is not satisfied at the regional level, the inmate has thirty days from the date of the regional director's response to appeal to the general counsel. Id. . . . An inmate has not fully exhausted his administrative remedies until he has appealed through all three levels. The appeal to the office of the general counsel is the final administrative appeal provided by the BOP. 28 C.F.R. § 542.15.Irwin v. Hawk, 40 F.3d 347, 349 n. 2 (11th Cir. 1994), cert. denied, 516 U.S. 835 (1995); see also 28 C.F.R. §§ 542.10 et seq. As demonstrated by Respondent, Petitioner has failed to exhaust his administrative remedies with respect to his complaint concerning his placement in segregation as part of the "sexual misconduct/pilot program." (See Bailey Dec. ¶¶ 6-12 and Attachment 1). Accordingly, the petition should be dismissed for lack of exhaustion. See Skinner, 355 F.3d at 1295 (upholding dismissal of § 2241 petition for failure to exhaust administrative remedies); see also United States v. Lucas, 898 F.2d 1554, 1556 (11th Cir. 1990) (remanding and requiring dismissal for lack of jurisdiction where prisoner failed to exhaust administrative remedies in connection with motion to credit time in custody ostensibly brought under 18 U.S.C. § 3568.); Lundy v. Osborn, 555 F.2d 534, 535 (5th Cir. 1977) (holding district court properly dismissed petition for lack of exhaustion where prisoner challenged his placement in segregation).
Decisions of the former Fifth Circuit filed prior to October 1, 1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
For the reasons stated above, it is RECOMMENDED that the instant petition for a writ of habeas corpus [Doc. 1] be DISMISSED.
The Clerk is DIRECTED to terminate the referral to the undersigned Magistrate Judge.