Opinion
Civil Action No. CV-03-4272 (DGT).
October 13, 2004
MEMORANDUM ORDER
Pro se petitioner Eva T. Falconi ("Falconi" or "petitioner") filed this petition for habeas corpus pursuant to 18 U.S.C. § 2241. Because this Court lacks jurisdiction, the petition is transferred to the Eastern District of Pennsylvania, which court does have jurisdiction.
Background
Petitioner is currently incarcerated at the Federal Detention Center in Philadelphia, Pennsylvania ("FDC Philadelphia"). She was transferred there from the Federal Correction Institution in Danbury, Connecticut ("FCI Danbury") on March 7, 2003. She brings this action against the United States and the warden of FCI Danbury, Kuma J. Deboo.
Construed broadly, petitioner's complaints are that (1) her good time credit was not properly calculated and she is accordingly being unlawfully detained, (2) FDC Philadelphia does not properly enforce its anti-smoking policy, causing her to be exposed to second-hand smoke in violation of the Eighth Amendment, (3) her transfer from FDI Danbury to FDC Philadelphia, a higher security penitentiary, took place without a hearing and in retaliation for her complaints about smoking in violation of her Due Process rights, (4) she consequently lost benefits accrued while in FCI Danbury under its work cadre program, also without a hearing and thus in violation of her Due Process rights, and (5) she is being forced to participate against her will in the work cadre program at FDC Philadelphia.
Discussion
This court lacks jurisdiction over Petitioner's claims, and it will therefore not decide the merits. As the Supreme Court recently ruled, "for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement." Rumsfeld v. Padilla, 124 S. Ct. 2711, 2722 (2004). Petitioner must instead re-file this action in the Eastern District of Pennsylvania, the district where she is confined. See id. at 2720 (immediate custodian is only proper respondent in habeas action).
Petitioner's claims for relief sound under both 18 U.S.C. § 2241, the habeas statute, and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Petitioner's claims involving good-time credits, which affect the duration or length of Petitioner's confinement, must be brought through habeas. See Prieser v. Rodriguez, 411 U.S. 475, 490 (1973); Jenkins v. Haubert, 179 F.3d 19, 24 (2d Cir. 1999). Petitioner's other claims involving constitutional violations by federal officials, which involve the conditions of petitioner's confinement, must be brought under Bivens. 403 U.S. at 397; Carlson v. Green, 446 U.S. 14, 18 (1980). Petitioner should accordingly re-file her claims involving loss of good time credits under habeas and the remainder of her claims under Bivens.
The government raises a number of arguments regarding exhaustion, noting that Petitioner has adequately exhausted remedies for claims involving good-time credits but has only partially (or not at all) completed the exhaustion process for other claims. See Government's Letter Brief in Response to the Petitioner's petition, dated January 30, 2004, at 5-6 (alleging that Petitioner has only partially exhausted remedies for claims involving second-hand smoke at FDC Philadelphia and has not begun the exhaustion process for claims regarding transfer between prisons).
Courts reviewing prisoner complaints routinely refuse to consider individual claims wherein administrative remedies have not been exhausted. See Neal v. Goord, 267 F.3d 116, 121 (2d Cir. 2001), abrogated on other grounds by Porter v. Nussle, 534 U.S. 516, 532 (2002). Moreover, federal appellate courts outside the Third Circuit disagree whether a complaint containing both exhausted and unexhausted claims can proceed at all, the so-called "total exhaustion" rule. The Third Circuit has not spoken on the issue. Should that court decide to follow the "total exhaustion" rule, Petitioner's failure to exhaust administrative remedies for each and every one of her grievances may be fatal to her entire complaint.
The U.S. Courts of Appeals for the Eighth and Tenth Circuits require total exhaustion; the Second and Sixth Circuits do not. Compare Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) ("when multiple prison condition claims have been joined . . . the plain language of § 1997(e) requires that all available prison grievance remedies must be exhausted as to all of the claims"), and Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004) ("the PLRA contains a total exhaustion requirement, and . . . the presence of unexhausted claims in [plaintiff's] complaint required the district court to dismiss his action in its entirety without prejudice"), with Ortiz v. McBride, 380 F.3d 649, 651 (2d Cir. 2004) (allowing exhausted claims to proceed while dismissing non-exhausted claims), and Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999) (dismissing two of plaintiff's claims as unexhausted and proceeding with the exhausted claims).
At least one district court within the Third Circuit has followed this rule. Riviera v. Whitman, 161 F. Supp. 2d 337, 341 (D.N.J. 2001).
Conclusion
Because this Court lacks jurisdiction, Falconi's § 2241 petition is transferred to the Eastern District of Pennsylvania. The Clerk of the Court is directed to send the court file to the United States District Court for the Eastern District of Pennsylvania in accordance with Civil Rule 83.1 of the Local Rules.SO ORDERED.