Oliver Boling v. Steve Langford

Filing 5

ORDER TO SHOW CAUSE by Magistrate Judge Alexander F. MacKinnon. Petitioner is ordered to show cause on or before 8/1/2018 why this action should not be dismissed without prejudice for failure to exhaust. (SEE ORDER FOR FURTHER DETAILS). (jp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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OLIVER BOLING,

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Petitioner,

Case No. CV 18-05677-ODW (AFM)
ORDER TO SHOW CAUSE

v.

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STEVE LANGFORD,
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Respondent.

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BACKGROUND

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On June 22, 2018, petitioner, a federal inmate currently incarcerated in the

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Federal Correctional Institution in Lompoc, California, filed this petition for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2241. The petition challenges the Bureau

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of Prisons’ computation of his sentence. For the following reasons, petitioner is

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ordered to show cause why the petition should not be dismissed for lack of

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jurisdiction.

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DISCUSSION

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Generally, a federal prisoner is required to exhaust his administrative remedies

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prior to seeking a writ of habeas corpus under 28 U.S.C. § 2241. See Singh v.

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Napolitano, 649 F.3d 899, 900 (9th Cir. 2011) (per curiam); Martinez v. Roberts, 804

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F.2d 570, 571 (9th Cir. 1986); see generally Ruviwat v. Smith, 701 F.2d 844, 845 (9th

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Cir. 1983) (per curiam) (exhaustion of administrative remedies aids “judicial review

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by allowing the appropriate development of a factual record in an expert forum,”

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conserves “the court’s time because of the possibility that the relief applied for may

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be granted at the administrative level,” and allows “the administrative agency an

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opportunity to correct errors occurring in the course of administrative proceedings”).

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The BOP has established administrative procedures that may be used by a

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federal prisoner to seek review of any aspect of his imprisonment. Martinez, 804 F.3d

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at 571; 28 C.F.R. § 542.10 et seq. An inmate is first generally required to “present an

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issue of concern informally to staff, and staff shall attempt to informally resolve the

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issue....” 28 C.F.R. § 542.13. Next, the inmate must raise a complaint to the warden

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of the institution where he is confined via a “Request for Administrative Remedy.”

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The inmate may appeal an adverse decision by the warden to the Regional Director,

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and an adverse decision by the Regional Director may be appealed to the General

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Counsel. The appeal to the General Counsel is the final administrative appeal. 28

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C.F.R. § 542.15; see Nigro v. Sullivan, 40 F.3d 990, 992 (9th Cir. 1994).

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Because the exhaustion requirement is judicially created, however, a failure to

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exhaust does not deprive a federal court of subject matter jurisdiction. Ward v.

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Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). Furthermore, a failure to exhaust can

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be excused. See Camacho v. White, 918 F.2d 74, 77 n.4 (9th Cir. 1990). “Typically,

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exhaustion can be waived ‘if pursuing those administrative remedies would be

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futile.’” Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990) (quoting Fraley v. U.S.

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Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (per curiam)). Other exceptions

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to the general rule of exhaustion include when administrative remedies are

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inadequate or ineffective, irreparable injury would result, or administrative

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proceedings would be void. See Laing v. Ashcroft, 370 F.3d 994, 1000-1001 (9th Cir.

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2004).

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From the face of the petition, it does not appear that petitioner has exhausted
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his administrative remedies. Further, nothing in the petition suggests that exhaustion

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of administrative remedies would be futile or would result in irreparable injury, or

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that petitioner’s available administrative remedies are inadequate or ineffective.

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Thus, it appears that the petition is subject to summary dismissal. See Mangum v.

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Ives, 2013 WL 5755493, at *3-*4 (C.D. Cal. Oct. 23, 2013) (dismissing § 2241

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petition which challenged BOP’s denial of prior custody credits, due to petitioner's

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failure to exhaust administrative remedies before seeking federal habeas relief);

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Singh v. Ives, 2013 WL 1182959, at *2 (C.D. Cal. March 21, 2013) (summarily

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dismissing § 2241 petition challenging sentence credit calculation based upon failure

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to exhaust administrative remedies).
ORDER

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Petitioner is ordered to show cause on or before August 1, 2018 why this

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action should not be dismissed without prejudice for failure to exhaust. Specifically,

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petitioner must either indicate that he has exhausted his administrative remedies or

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show that exhaustion should be excused for one of the reasons set forth above.

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Finally, petitioner is cautioned that failure to timely file a response to this order

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may result in dismissal of this action without prejudice for failure to exhaust, for

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failure to comply with court orders, or for failure to prosecute. See Fed. R. Civ. P.

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41(b).

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DATED: 7/9/2018

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____________________________________
ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE

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