Kakaletris v. Middlebrooks et al(INMATE 2)

Filing 3

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Paul Kakaletris; it is the Recommendation of the Mag. Judge that this case be dismissed without prejudice to afford Petitioner an opportunity to exhaust his administrative remedies in accordance with the procedures established by the Bureau of Prisons; Objections to R&R due by 9/20/2005. Signed by Judge Susan Russ Walker on 9/7/05. (vmc, )

Kakaletris v. Middlebrooks et al(INMATE 2)

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Case 2:05-cv-00815-MHT-SRW

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IN THE UNITED STATES DISTRICT COURT FOR THE M IDDLE DISTRICT OF ALABAM A NORTHERN DIVISION _______________________________ PAUL KAKALETRIS Pet it ioner, v. SCOT T M IDDLEBROOKS, WARDEN Resp ondent . _______________________________ * * * CIVIL ACTION NO.2:05-CV-815-T (WO) * *

RECO MMENDATIO N OF THE MAGIS TRATE JUDGE T his cause is before t h e court on a 28 U.S.C. § 2241 petition for habeas corpus relief filed by P a u l K a k alet ris, a federal inmate. In his petition, Petitioner challenges the Bureau of Prison's ("BOP") calculation of his good conduct time. Specifically, Petitioner asserts BO P 's misinterpretation of the federal good conduct time statute, he is Consequently,

t hat due to the

ent it led to 54 days of good conduct credit yearly rather than 47 days.

Pet it ioner requests that the BOP be directed to re-calculate his federal good conduct time. Pet it ion e r concedes that he has not exhausted available administrative remedies but argues t hat exhaustion would be futile. DIS CUS S IO N Prisoners seeking habeas relief, including relief pursuant to 28 U.S.C. § 2241, are subject to administrative exhaustion requirements. Skinner v. Wiley, 355 F.3d 1293, 1295

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(11th Cir.), cert denied,541 U.S. 1036 (2004). In the civil context, the alleged inadequacy of an administrative remedy does not preclude the application of a mandatory exhaustion requirement . See Alexander v. Hawk, 159 F.3d 1321, 1325-28 (11th Cir.1998). " T he Bureau of Prisons is . . . responsible for computing [petitioner's] sentence and ap p ly ing appropriate . . . credit. U.S. v. Martinez, 837 F.2d 861, 865-66 (9th Cir. 1988). T h e BOP has established regulations that set forth the procedures that a prisoner must follow before seeking relief from a district court. U.S. v. Lucas, 898 F.2d 1554, 1556 (11th Cir. 1990); Johnson v. United States, 2005 WL 107929 (E.D. Ky., April 12, 2005). These regulations govern formal review of inmate complaints relating to any aspect of their imprisonment and sp ecify the procedures that inmates must pursue prior to seeking relief in federal court. See 28 C.F.R. §§ 543.10-16; United States v. Herrera, 931 F.2d 761, 764 (11th Cir.1991). If, and only if, an inmate has pursued his administrat i v e remedy may he seek relief in federal court. Id. Further, exhaustion of administrative remedies is jurisdictional and P e t it ioner's failure

t o fully pursue available administrative remedies leaves this court without jurisdiction to ent ert ain his application for good-time credit. Id.; s e e also Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir. 1992); Winck v. England, 327 F.3d 1296, 1300 n.1 (11th Cir.2003). In light of the foregoing, the court concludes that Petitioner is required t o exhaust available administrative procedures established by the Bureau of Prisons prior t o s e e k i n g relief from this court. His subjective belief that exhausting administrative remedies is a

fut ile effort is insufficient under the circumstances presented here to excuse him from first

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seeking the relief he seeks through the appropriate administrative channels. 1 Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir. 1985). CO NCLUS IO N

See

Accordingly , it is the RECO M M ENDAT ION of the M agist rat e Judge that this case be dismissed without prejudice to afford Petitioner an opportunity to exhaust his administ rat ive remedies in accordance with the procedures es t a b l ished by the Bureau of Prisons. It is further ORDERED that the parties are DIRECTED to file any objections to the said Recommendat i o n on or before September 20, 2005. Any objections filed must specifically ident ify the findings in the M agist rat e Judge's Recommendation objected to. Frivolous,

conclusive or general objections will not be considered by t h e D i s t rict Court. The parties a r e advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections t o the proposed findings and recommendations in t he M agist rat e Judge's report shall bar the p art y from a de novo determination by the Dist rict Court of issues covered in the report and shall bar t he party from attacking on ap p eal factual findings in the report accepted or adopted by the D ist rict Court except upon gr o u n d s of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.

1

P etitioner' s current release date is December 7, 2008.

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1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11 t h Cir. 1982). See also Bonner v . City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. DONE, this 7th day of September, 2005.

/s/ Susan Russ Walker SUSAN RUSS WALKER UNIT ED STATES M AGIST RAT E JUDGE