Lee v. Copenhaver et al

Filing 4

ORDER DISMISSING CASE. Signed by Judge Thelton E. Henderson on 10/26/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 10/26/2009)

1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JULIE LEE, Petitioner, v. PAUL COPENHAVER, Warden, et. al., Respondent(s). /

No. C-09-3906 TEH (PR)

ORDER OF DISMISSAL

Petitioner, a federal prisoner currently incarcerated at the Federal Corrections Institution ("FCI"), Dublin, and proceeding pro se, has filed the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Doc. #1. Petitioner is in the

custody of the Bureau of Prisons ("BOP") following her 2008 convictions of two counts of mail fraud and three counts of attempted witness tampering.1 filing fee. Petitioner challenges the decision by the FCI Warden Id. at 15. Petitioner has paid the

Her projected release date is December 11, 2009.

Id.

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refusing to exercise the discretion granted the BOP under 18 U.S.C. §§ 3621 & 3624 to transfer Petitioner to a Residential Reentry Center ("RRC") for a period beginning five months before the expiration of her sentence.2 Doc. #1. As explained below, the

Petition is subject to dismissal for failure to exhaust administrative remedies. Although § 2241 does not specifically require petitioners to exhaust available remedies before filing petitions for a writ of habeas corpus, the Ninth Circuit "require[s], as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241." v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004). The BOP has established procedures by which prisoners can seek review of "an issue relating to any aspect" of a prisoner's confinement. 28 C.F.R. § 542.10. The procedures apply to all Id. The first level of Id. § Laing

prisoners in programs operated by the BOP.

review is "Informal Resolution" at the institutional level. 542.13.

A prisoner who is not satisfied with the warden's response

resulting from the Informal Resolution process may then submit an appeal to the Regional Director. Id. § 542.15. A prisoner who is

not satisfied with the Regional Director's response may submit an appeal to the General Counsel of the BOP. Id. Once the General

Counsel responds to and signs the appeal, the prisoner has exhausted

Based on information contained in a document Petitioner filed with the Court on September 22, 2009, it appears that the Warden's decision was upheld by the Regional Director and that Petitioner appealed the Regional Director's decision on September 20, 2009, but has not yet received a response. See Doc. #3. 2

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administrative remedies.

See id. § 542.11.

Here, Petitioner states that she was "in the process of exhausting her administrative remedy through the BOP's administrative appeals process" when she filed the instant Petition. Doc. #1 at 3, emphasis added. Documents attached to her Petition

show that she sought Informal Resolution and, then, because she was not satisfied with the institutional response, appealed that decision to the Regional Director on July 29, 2009. 18. Doc. #1 at 17 &

On September 22, 2009, almost one month after the instant

Petition was filed, Petitioner filed additional documents showing that she filed a "Central Office Administrative Appeal" to the General Counsel dated September 20, 2009 appealing the Regional Director's denial; no response to that appeal is on file with the Court. Doc. #3. Her appeal to the General Counsel therefore is

still pending; Petitioner has conceded that she has not exhausted her administrative remedies. Doc. #1 at 3; Doc. #3. Petitioner

nonetheless urges the Court to waive the exhaustion requirement and consider the merits of her Petition. Because it is not a jurisdictional prerequisite, the exhaustion requirement may be waived in limited circumstances. See

Laing, 370 F.3d at 998 & 1000-01 (listing circumstances under which waiver of exhaustion requirement may be appropriate, which include "when: (1) available remedies provide no genuine opportunity for

adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a [petitioner] has raised a substantial

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constitutional question"). Here, Petitioner claims exhaustion would be futile "because the BOP issues a form letter of denial stating that the individual has been considered and denied based upon their individual RRC needs, while being told by [s]taff that they are being categorically denied." Doc. #1 at 3. Petitioner admits that

"[r]esponses for those who have pursued administrative remedy reflect that they were considered on an individual basis" but claims, without offering any explanation why, "[t]hat is not the case." Id. at 8. Petitioner adds that because the "Deputy

Director" is married to the warden, "[i]t is worst case Nepotism, where the Deputy Director is responsible for reviewing her husband's decisions, [such that] inmates cannot expect objective review of their administrative remedy." Id. Completely lacking any

evidentiary support, Petitioner's conclusory allegations that exhaustion would be futile are unpersuasive and insufficient to excuse her failure to exhaust administrative remedies. // // // // // // // //

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For the foregoing reasons, the Court finds Petitioner has not exhausted her administrative remedies and that she is not entitled to waiver of the exhaustion requirement. Accordingly, the

Petition for a Writ of Habeas Corpus under § 2241 is hereby DISMISSED without prejudice to Petitioner's filing a new habeas corpus action after exhausting the BOP's administrative appeals process.

IT IS SO ORDERED.

10/26/09 THELTON E. HENDERSON United States District Judge

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