Morris v. Flounoy et al

Filing 15

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Morris' 1 Petition for Writ of Habeas Corpus, and DIRECT the Clerk to CLOSE this case. It is further RECOMMENDED that the Court DENY Morris leave to p roceed in forma pauperis. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 8/25/2017). ORDER directing service of the REPORT AND RECOMMEDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/11/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

DARVIN MORRIS,
Petitioner,

CIVIL ACTION NO.: 2:16-cv-126

v.
VICK FLOURNOY, Warden; FEDERAL
BUREAU OF PRISONS; and UNITED
STATES ATTORNEY GENERAL, 1
Respondents.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Darvin Morris (“Morris”), who is currently incarcerated at the Federal
Correctional Institution in Jesup, Georgia (“FCI Jesup”), filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response, (doc. 13), and
Morris filed a Traverse, (doc. 14). For the reasons which follow, I RECOMMEND the Court
DISMISS Morris’ Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY
Morris in forma pauperis status on appeal.
BACKGROUND
Morris was convicted in this District, after entry of a guilty plea, of possession of a
firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2).

The Honorable William T. Moore, Jr., sentenced Morris to 120 months’

imprisonment on July 29, 2013, and recommended Morris receive credit against his sentence for
1

The only proper respondent in a Section 2241 case such as this is the petitioner’s immediate custodian–
the warden of the facility where the petitioner is confined. See Rumsfeld v. Padilla, 542 U.S. 426, 434–
35 (2004). Accordingly, Vick Flournoy is the only proper Respondent in this Section 2241 action.
Therefore, the Court should DISMISS the remaining Respondents.

his time served since January 8, 2013. (Doc. 13-1, pp. 12–13) Morris has a projected release
date of July 25, 2022, via good conduct time credit. (Id. at p. 10.)
In his Petition, Morris seeks three items, all of which challenge the Bureau of Prisons’
(“BOP”) sentence calculation. First, Morris seeks an award of pretrial credit from October 10,
2012, through November 7, 2013. Second, Morris seeks an award of pretrial credits from the
date that a federal detainer was lodged against him, i.e., Morris seeks compliance with Judge
Moore’s sentencing computation recommendation.

Finally, Morris seeks a nunc pro tunc

designation from the BOP so that his state sentence can be concurrently designated with his
federal sentence. (Doc. 1, p. 4.)
Respondent avers Morris failed to exhaust his administrative remedies prior to filing his
Petition, and his Petition should be dismissed as a result. (Doc. 13.) The Court addresses
Respondent’s contention.
DISCUSSION
I.

Whether Morris Exhausted his Administrative Remedies
A.

Legal Requirements for Exhaustion

The Eleventh Circuit Court of Appeals has held that a Section 2241 petitioner’s failure to
exhaust administrative remedies is not a jurisdictional defect. Santiago-Lugo v. Warden, 785
F.3d 467, 474 (11th Cir. 2015); see also Fleming v. Warden of FCI Tallahassee, 631 F. App’x
840, 842 (11th Cir. 2015) (“[Section] 2241’s exhaustion requirement was judicially imposed, not
congressionally mandated, and . . . nothing in the statute itself support[s] the conclusion that the
requirement [is] jurisdictional.”).

Nevertheless, the Eleventh Circuit has noted “that the

exhaustion requirement is still a requirement and that courts cannot ‘disregard a failure to
exhaust . . . if the respondent properly asserts the defense.’” Id. (citing Santiago-Lugo, 785 F.3d

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at 475). Failure to exhaust administrative remedies is an affirmative defense, and inmates are not
required to specially plead or demonstrate exhaustion in their complaint. Jones v. Bock, 549
U.S. 199, 216 (2007). Additionally, the United States Supreme Court has “held that the PLRA’s
[Prison Litigation Reform Act’s] text suggests no limits on an inmate’s obligation to exhaust—
irrespective of any ‘special circumstances.’ And that mandatory language means a court may not
excuse a failure to exhaust, even to take such circumstances into account.” Ross v. Blake, ___
U.S. ___, 136 S. Ct. 1850, 1856 (June 6, 2016).
The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y
for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)).

Furthermore, requiring

exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference with the
administration of prisons” and allows “corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548
U.S. 81, 93 (2006). 2
The Supreme Court has noted exhaustion must be “proper.”

Id. at 92.

“Proper

exhaustion demands compliance with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.” Id. at 90–91. In other words, an institution’s requirements
define what is considered exhaustion. Jones, 549 U.S. at 218. It is not the role of the court to
2

Although Woodford was a civil rights suit rather than a habeas petition, the Court “noted that the
requirement of exhaustion is imposed by administrative law in order to ensure that the agency addresses
the issues on the merits.” Fulgengio v. Wells, CV309-26, 2009 WL 3201800, at *4 (S.D. Ga. Oct. 6,
2009) (emphasis in original) (quoting Woodford, 548 U.S. at 90) (internal punctuation omitted). Thus,
exhaustion requirements are applicable to habeas petitions.
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consider the adequacy or futility of the administrative remedies afforded to the inmate.
Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). The court’s focus should be on
what remedies are available and whether the inmate pursued these remedies prior to filing suit.
Id.
Thus, under the law, prisoners must do more than simply initiate grievances; they must
also appeal any denial of relief through all levels of review that comprise the agency’s
administrative grievance process. Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (“To
exhaust administrative remedies in accordance with the PLRA, prisoners must ‘properly take
each step within the administrative process.’”) (quoting Johnson v. Meadows, 418 F.3d 1152,
1157 (11th Cir. 2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27,
2007) (finding that a plaintiff who is still awaiting a response from the warden regarding his
grievance is still in the process of exhausting his administrative remedies).
B.

Standard of Review for Exhaustion

“Even though a failure-to-exhaust defense is non-jurisdictional, it is like” a jurisdictional
defense because such a determination “ordinarily does not deal with the merits” of a particular
cause of action. Bryant, 530 F.3d at 1374 (internal punctuation and citation omitted). Further, a
judge “may resolve factual questions” in instances where exhaustion of administrative remedies
is a defense before the court. Id. In these instances, “it is proper for a judge to consider facts
outside of the pleadings and to resolve factual disputes so long as the factual disputes do not
decide the merits and the parties have sufficient opportunity to develop a record.” Id. at 1376.
In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit set forth a
“two-step process” that lower courts must employ when examining the issue of exhaustion of

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administrative remedies. 3 First, the court is to take the plaintiff’s version of the facts regarding
exhaustion as true. Id. at 1082. If, even under the plaintiff’s version of the facts, the plaintiff has
not exhausted, the complaint must be dismissed. Id. However, if the parties’ conflicting facts
leave a dispute as to whether plaintiff has exhausted, the court need not accept all of plaintiff’s
facts as true. Id. Rather, “the court then proceeds to make specific findings in order to resolve
the disputed factual issues[.]” Id. “Once the court makes findings on the disputed issues of fact,
it then decides whether under those findings the prisoner has exhausted his available
administrative remedies.” Id. at 1083. The Eleventh Circuit has held that a district court may
consider materials outside of the pleadings and resolve factual disputes regarding exhaustion in
conjunction with a Rule 12(b)(6) motion to dismiss so long as the factual disputes do not decide
the merits of the case. See Bryant, 530 F.3d at 1376–77.
C.

The BOP’s Exhaustion Requirements

The BOP has established an administrative remedy procedure through which an inmate
may seek review of a grievance related to any aspect of his imprisonment. 28 C.F.R. § 542, et
seq.

The Administrative Remedy Program applies to all inmates incarcerated in penal

institutions operated by the BOP. 28 C.F.R. § 542.10(b). Under the applicable Regulations, an
inmate must generally first seek to resolve an issue of concern informally by presenting the issue
to correctional staff. 28 C.F.R. § 542.13(a). If this does not resolve the matter, an inmate must
submit a formal written administrative remedy request within twenty calendar days of the
incident giving rise to the grievance. 28 C.F.R. § 542.14(a). Administrative Remedy Form BP229(13) is the form to be utilized at the institution level. This form is commonly referred to as a
3

Although Turner involved exhaustion requirements within the context of a 42 U.S.C. § 1983 action, it
appears the two-step process set forth in Turner would be no less applicable to a Section 2241 proceeding.
See McCoy v. Glidewell, Civil Action No. 4:11-cv-1683-JFA-TER, 2012 WL 3716872, at *5 (D.S.C.
June 18, 2012) (noting Section 2241’s exhaustion requirements and Turner’s application of exhaustion
standards to a Section 2241 petition).
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“BP-9” form. (Doc. 13-1, p. 28.) If unsatisfied with the Warden’s response to the BP-9
administrative remedy request, an inmate may take an initial appeal to the appropriate Regional
Director within twenty days of when the Warden signed the response. 28 C.F.R. § 542.15(a).
Administrative Remedy Form BP-230(13) is the form to be utilized at the regional level. This
form is commonly referred to as a “BP-10” form. Id. If unsatisfied with the Regional Director’s
response, an inmate may take a final appeal to the BOP’s Office of General Counsel in
Washington, D.C., within thirty days of when the Regional Director signed the response.
(Doc. 13-1, p. 31.) Appeal to the BOP’s Office of General Counsel is the final step in the BOP’s
administrative remedy process. (Id.) Administrative Remedy Form BP-231(13) is the form to be
utilized at the final level. This form is commonly referred to as a “BP-11” form. (Id.) An
inmate is to “consider the absence of a response to be a denial at that level.” (Doc. 13-1, p. 33.)
D.

Morris’ Efforts at Exhaustion

In his Petition, Morris maintains he exhausted his administrative remedies by filing a BP9 at the administrative level to seek credit against his federal sentence for January 8, 2013,
through July 29, 2013. (Doc. 1, p. 2.) Morris contends he was only awarded credit against his
sentence for November 8, 2013, through November 12, 2013. (Id.)
Respondent avers Morris has filed only one BP-9 during his incarceration with the BOP,
and he sought an award of jail credits from January 8, 2013, through July 29, 2013. However,
Respondents asserts Morris did not pursue an appeal of the denial of his BP-9 at either the
Regional or Central Office levels. In addition, Respondent contends Morris has not filed any
administrative remedies concerning his request for nunc pro tunc designation. (Doc. 13, pp. 5–
6.)

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Morris responds that he filed Administrative Remedy Number 827437-F1 on July 6,
2015, while he was housed at the United States Penitentiary in Coleman, Florida. (Doc. 14,
p. 2.) Morris asserts he did not receive the Warden’s response to the request until September 12,
2015, and he was transferred to FCI Jesup on September 15, 2015. (Id. at p. 3.) Morris alleges
he placed an extension of time to file a BP-10 appeal in the prison mail system while he was still
housed in the Coleman, Florida, facility. Morris also alleges a case manager at FCI Jesup told
him that the unit team did not have any administrative remedy forms available, and, after he was
told this on several occasions, he filed his Section 2241 Petition. (Id.) Morris maintains BOP
staff impeded his attempts at exhaustion by not having administrative remedies available, and the
Court should deem his administrative remedies exhausted. (Id. at p. 4.)
At the first step of the Turner analysis, Morris exhausted the administrative remedies
available to him as to his request for credit against his federal sentence. According to Morris, he
could not obtain a BP-10 form after he arrived at FCI Jesup. However, under the more exacting
crucible of Turner’s second step, Morris’ claim of exhaustion withers.
Though the Supreme Court rejected a “special circumstances” exception to exhaustion in
Ross, it reiterated that a prisoner need only exhaust those remedies which were available to him.
Ross, ___ U.S. at ___ 136 S. Ct. at 1856–57 (“An inmate, that is, must exhaust available
remedies, but need not exhaust unavailable ones.”). The Court recognized “three kinds of
circumstances in which an administrative remedy, although officially on the books, is not
capable of use to obtain relief.”

Id.

First, the Court stated that, in some instances, the

administrative procedure “operates as a simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates.” Id. Thus, if the administrative procedure
lacks authority or if the officials with apparent authority “decline ever to exercise it,” the inmate

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has no obligation to exhaust the remedy. Id. Second, when administrative remedies are so
confusing that they are “essentially ‘unknowable,’” exhaustion is not required. Id., ___ U.S. at
___, 136 S. Ct. at 1859 (citing Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007), and
Turner, 541 F.3d at 1084). Lastly, exhaustion is not required “when prison administrators thwart
inmates from taking advantage of a grievance process through machination, misrepresentation,
or intimidation.” Id. However, the Supreme Court recognized that, “[g]iven prisons’ own
incentives to maintain functioning remedial processes, we expect that these circumstances will
not often arise.” Id.
In his Traverse, Morris asserts he did not receive the Warden’s response to his BP-9
request until September 12, 2015, which was more than a month after the Warden responded to
his request on July 27, 2015. (Doc. 14, p. 3.) However, by Morris’ own admissions and
submissions to this Court, it is evident he did not properly and fully exhaust his administrative
remedies prior to filing his Petition. Even accepting as true Morris’ assertion that he did not
receive the Warden’s response to his BP-9 (by which he requested credit against his sentence
from January 8 through July 29, 2013) until September 12, 2015, it is evident Morris did not
exhaust his available administrative remedies. Morris submitted his BP-9 on July 6, 2015,
(doc. 1, p. 7), and it was received on July 8, 2015, (id. at p. 11). Morris’ BP-9 was considered
filed on July 8, 2015, and the Warden then had twenty (20) calendar days by which to respond to
Morris’ request, or until July 28, 2015. 28 C.F.R. § 542.18. The Warden’s denial of Morris’ BP9 is dated July 21, 2015, and staff delivered it to Morris on July 27, 2015. (Doc. 1, p. 12.) If
Morris did not receive the Warden’s written response to his BP-9 by July 28, 2015, (the line on
the response for his signature is blank), then he was to “consider the absence of a response to be
a denial at that level.” (Doc. 13-1, p. 33.) Accordingly, Morris should have filed an appeal of

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this denial or an extension to do so within twenty (20) days, or by August 17, 2015, and he failed
to do so. What is more, there is nothing before the Court, aside from Morris’ conclusory
assertion, that he filed a request for an extension after September 12, 2015, prior to his transfer
from the Coleman, Florida, facility. In contrast, the BOP’s SENTRY system reveals that Morris’
BP-9 was denied on July 21, 2015, and he failed to pursue his request for credit against his
sentence any further.

(Doc. 13-1, p. 43.) Moreover, Morris does not assert he filed any

administrative remedy request whatsoever based on his request for nunc pro tunc designation.
Morris does not present credible evidence that he is entitled to one of the exceptions to
availability the Supreme Court espoused in Ross. 4 Rather, the Court finds BOP’s account of the
availability of remedies more credible than Morris’ account. Thus, Morris failed to exhaust his
administrative remedies as to the relief sought via his Section 2241 Petition prior to the filing of
his Petition. Consequently, the Court should DISMISS Morris’ Petition.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Morris leave to appeal in forma pauperis. Though Morris

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of
party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal
is filed”). An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal
is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
4

Morris arguably sets forth an assertion that officials at FCI Jesup could not provide him with his
requested relief because the case manager repeatedly stated he did not have BP-10 forms. However, as
discussed earlier in this Report, the evidence before the Court does not support this assertion. Nor would
such an assertion—even if verifiable—absolve Morris from having to satisfy the exhaustion requirements
as to the filing of a BP-10 prior to his transfer to FCI Jesup.
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claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Given the above analysis of Morris’ Petition, Respondent’s Response, and Morris’
Traverse, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken
in good faith. Thus, the Court should DENY Morris in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS without prejudice
Morris’ Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, (doc. 1), and
DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND that the Court
DENY Morris leave to proceed in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.

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Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Morris and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of August,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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