Opinion
Civil Action No. 4:04-CV-039-M.
April 14, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.
B. PARTIES
Petitioner Robert David Neal, Reg. 15151-180, is a federal prisoner incarcerated in the Federal Medical Center, Fort Worth, Texas.
Respondent L.E. Fleming is Warden of the Federal Medical Center, Fort Worth, Texas.
C. PROCEDURAL HISTORY
Neal is serving a 27-month term of imprisonment for false claims in violation of 18 U.S.C. § 287. (Resp't Appendix A at 1-2.) He is presently expected to be released with good conduct time on December 5, 2004. (Resp't Response at 2.)On November 22, 2002, Neal signed an agreement to participate in a residential drug abuse program (RDAP) for early release consideration under 18 U.S.C. § 3621(e). (Pet'r Traverse at Exhibit A-5.) He enrolled in such a program and was determined to be "provisionally" eligible for early release with a "provisional" § 3621(d) release date of March 2, 2004. (Pet'r Traverse at Exhibits B, E; Resp't Appendix G at 56.) He was later notified by the Bureau of Prisons (the Bureau), however, that he was disqualified from the RDAP because of insufficient documentation to support a diagnosis of substance abuse or dependance in his case. (Petition at 6; Resp't Appendix B at 8.)
By way of the instant petition for writ of habeas corpus, Neal challenges the Bureau's decision to disqualify him from the RDAP, and he seeks reinstatement in the RDAP. (Petition at 6-8.) The government has filed a response and motion to dismiss the petition with supporting brief and documentary exhibits. (Resp't Response Mot. to Dismiss.) Neal has filed a reply. (Pet'r Traverse.)
D. ISSUES
Neal raises the following claims:
(1) His removal from the RDAP and the recision of his early release date was accomplished without due process of law and was arbitrary and capricious;
(2) He had a "settled expectation of early release," which was destroyed by the BOP's actions against him;
(3) The BOP's actions constitute a breach of contract; and
(4) The principles of "equitable estoppel" should apply. (Petition at 6-8.)
E. EXHAUSTION
The government asserts that Neal's petition should be dismissed because he has failed to exhaust his administrative remedies. In support of its argument, the government relies upon 42 U.S.C. § 1997e(a), Booth v. Churner, 532 U.S. 731 (2001), Porter v. Nussle, 534 U.S. 516 (2002), as well as Fifth Circuit case law. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994); United States v. Gabor, 905 F.2d 76, 78 n. 2 (5th Cir. 1990). Neal, on the other hand, contends that he was not required to exhaust administrative remedies under the Prison Litigation Reform Act (PLRA) or the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) before pursuing federal relief under § 2241. (Pet'r Traverse at 2-3.)In Booth and Porter, the Supreme Court makes clear that an inmate bringing a civil rights action under 42 U.S.C. § 1983 or suing under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), regarding prison conditions must first exhaust prison grievance procedures pursuant to § 1997e(a). Booth, 532 U.S. at 740-41; Porter, 534 U.S. at 532. The Supreme Court has yet to hold, however, that § 1997e(a) applies to a habeas corpus proceeding under 28 U.S.C. § 2241. Moreover, Neal is challenging the fact or duration of his confinement, not the conditions of his confinement. Therefore, his 28 U.S.C. § 2241 petition is not subject to the exhaustion provision of 42 U.S.C. § 1997e(a). See Mayberry v. Pettiford, 74 Fed.Appx. 299, 299 (5th Cir. 2003); 18 U.S.C. § 3626(g)(2).
Nevertheless, as a matter of Fifth Circuit case law, federal prisoners are required to exhaust available administrative remedies through the Bureau before seeking habeas corpus relief under § 2241. (Pet'r Traverse at 2.) See Rourke, 11 F.3d at 50. An administrative remedy procedure for federal prisoners is provided at 28 C.F.R. § 542.10-542.19. Under this administrative procedure, if informal resolution fails, the inmate must pursue a three-level process within the prescribed time intervals. (Resp't Appendix B at 7-8.) Typically, the inmate must formally appeal to the Warden, via a Request for Administrative Remedy, commonly referred to as a BP-9; then to the Regional Director, via a form commonly referred to as a BP-10; and finally to the Office of General Counsel, via a form commonly referred to as a BP-11. (Id.) Administrative remedies have not been exhausted until the inmate's claim has been filed at all levels and has been denied at all levels. See 28 C.F.R. § 542.15; Rourke, 11 F.3d at 49.
In support of the government's argument that Neal's petition should be dismissed for lack of exhaustion of administrative remedies, it has submitted the declaration of Darrin C. Scott, Senior Litigation Counsel for the Bureau at the Dallas Consolidated Legal Center. (Resp't Appendix 1 at 1.) Affiant Scott avers that, by way of his employment, he has access to computerized inmate records maintained by the Bureau. (Id.) Scott further avers that review of the records maintained by the Bureau reveals that Neal has not exhausted the administrative remedy process relevant to his claims. (Id. at 9.) Apparently, Neal filed a Request for an Administrative Appeal, a BP-10, concerning his eligibility for reinstatement to the RDAP directly with the Regional Director without first seeking relief from the Warden on the basis that the request presented a "sensitive issue." See 28 C.F.R. § 542.14(d). The appeal was rejected as not meeting "sensitive" filing criteria, and Neal was advised to submit a request to the Warden. (Resp't Appendix B at 9.) Neal then filed an appeal with the Office of General Counsel, a BP-11, which was likewise rejected as not meeting "sensitive" filing criteria, and Neal was again advised to submit a request to the Warden. (Id.) As of March 18, 2004, Neal had not submitted a Request for Administrative Appeal to the Warden. (Id.)
The purpose of exhaustion is to permit the federal agency being challenged to correct its own error without court intervention. Smith v. Thompson, 937 F.2d 217, 219 (5th Cir. 1991). Exceptions to the exhaustion requirement are appropriate only in extraordinary circumstances where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action. Fuller, 11 F.3d at 62 (quoting Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir. 1985)). Such showing not having been demonstrated by Neal, he cannot now proceed in this court in habeas corpus. Accordingly, dismissal of this federal habeas corpus proceeding for lack of exhaustion is warranted so that Neal can fully exhaust his administrative remedies and then return to this court, if he so desires, after exhaustion has been properly and fully accomplished.
II. RECOMMENDATION
The government's motion to dismiss should be granted and Neal's petition for writ of habeas corpus be dismissed without prejudice.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 5, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 5, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.