Ivan Maldonado-Duran v. Cynthia Entzel

Filing 3

MINUTES (In Chambers) Order to Show Cause Why This Action Should Not Be Dismissed For Failure to Exhaust Administrative Remedies [Dkt. 1] by Magistrate Judge Kenly Kiya Kato. Response to Order to Show Cause due by 6/2/2017. (SEE ORDER FOR DETAILS) (Attachments: # 1 NOTICE OF DISMISSAL) (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.
Title:

CV 17-3133-R-KK

Date: May 2, 2017

Ivan Maldonado-Duran v. Cynthia Entzel

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Petitioner:

Attorney(s) Present for Respondent:

None Present

None Present

Proceedings:

(In Chambers) Order to Show Cause Why This Action Should Not Be
Dismissed For Failure to Exhaust Administrative Remedies [Dkt. 1]
I.
INTRODUCTION

Petitioner Ivan Maldonado-Duran (“Petitioner”) has filed a pro se Petition for Writ of
Habeas Corpus (“Petition”) by a Person in State Custody pursuant to 28 U.S.C. § 2241
(“Section 2241”). ECF Docket No. (“dkt.”) 1. However, it appears Petitioner has failed to fully
exhaust his administrative remedies. The Court thus orders Petitioner to show cause why this
action should not be dismissed for failure to exhaust administrative remedies.
II.
BACKGROUND
On October 19, 2015, Petitioner, an inmate at Victorville II Federal Correctional
Institution, was convicted of conspiracy to distribute controlled substances in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A) and conspiracy to possess firearms in furtherance of a drug
trafficking offense in violation of 18 U.S.C. § 924(o) in the Western District of Washington.
2:14-cr-0096-JCC, Dkt. 249. Petitioner was sentenced to a term of 36 months. Id.

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On August 31, 2016, Petitioner was issued a disciplinary infraction, Incident Report #
2923623, by the Taft Private Correctional Institution, which resulted in the withholding of 27days of good time credit. Dkt. 1, Pet. at 3, 7.
On September 1, 2016, Petitioner filed a first appeal to the Federal Bureau of Prisons
Western Regional Office and Federal Bureau of Prisons Central Office. Id. at 3.
On October 1, 2016, Petitioner filed a second appeal to the Federal Bureau of Prisons
Central Office. Id. at 4.
On April 5, 2017, Petitioner constructively filed1 the instant Petition. Id. at 1. Petitioner
challenges the withholding of good time credit based on the disciplinary infraction issued on
August 31, 2016. Id. at 2. Petitioner sets forth the following ground for relief: “The Taft Private
Correctional Institution disallowed Good Time Credit of 27 days for and Incident Report for
violation of Prison policy. The Taft Private Correctional Institutional Staff do not have the
authority to disallow Good Time Credit.” Id. at 7.
III.
DISCUSSION
Federal prisoners must exhaust their federal administrative remedies prior to filing a
petitions for a writ of habeas corpus. Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)
(holding Section 2241 does not specifically require petitioners exhaust available remedies before
filing, but the Ninth Circuit “require[s], as a prudential matter, that habeas petitioners exhaust
available judicial and administrative remedies before seeking relief under § 2241”).
The Bureau of Prisons (“BOP”) has an administrative remedy procedure by which
inmates can seek formal review of their complaints. “Generally, the procedure requires a
prisoner to: first attempt to resolve his complaint informally through the BP-8 procedure; then
raise his complaint with the warden through the BP-9 procedure; if the matter is not resolved in a
manner satisfactory to the prisoner, the prisoner then must appeal to the BOP’s Regional
Director through the BP-10 procedure; and the prisoner’s final administrative appeal is to the
BOP’s Office of General Counsel through the BP-11 procedure.” Godley v. United States, No.
CV-14-01166-VBF-MAN, 2014 WL 12042565, at *2 (C.D. Cal. Aug. 7, 2014), judgment entered,
2014 WL 12013446 (C.D. Cal. Aug. 7, 2014) (citing 28 C.F.R. §§ 542.10-542.19; Nigro v.
Sullivan, 40 F.3d 990, 992 (9th Cir. 1994)). “Because appeal to the General Counsel’s Office is
the ‘final administrative appeal,’ 28 C.F.R. § 542.15(a), inmates have not exhausted their
administrative remedies until their requests have been filed at all levels of the process and denied
at all levels.” Id.; 28 C.F.R. § 542.15.

Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to
court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v.
Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010).
1

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Here, it is unclear whether Petitioner has fully exhausted his administrative remedies.
Although it appears Petitioner has filed two administrative appeals, the Court cannot determine
from the face of the Petition whether Petitioner has sufficiently exhausted his administrative
remedies by seeking review from the BOP’s Office of General Counsel and obtaining a final
determination. See Pet. at 3-4.
IV.
ORDER
Petitioner is therefore ORDERED TO SHOW CAUSE why this action should not be
dismissed for failure to exhaust administrative remedies by filing a written response no later than
June 2, 2017. Petitioner should attach any documents supporting his position. Petitioner is
advised to inform the Court of any reason demonstrating exceptions to the exhaustion
requirement.
Instead of filing a response to the instant Order, Petitioner may request a voluntary
dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of the
Court has attached A Notice of Dismissal form.
The Court warns Petitioner failure to timely file a response to this Order will result
the Court dismissing this action with prejudice as untimely, and for failure to prosecute and
comply with court orders. See Fed. R. Civ. P. 41(b).
The Clerk of Court is directed to serve a copy of this Order on Petitioner at his
current address of record.
IT IS SO ORDERED.

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