Villalobos-Hernandez v. Stone
REPORT AND RECOMMENDATION of the U.S. Magistrate Judge that re 6 MOTION to Dismiss should be granted and re 1 Petition for Writ of Habeas Corpus should be dismissed without prejudice closing this case. Objections to R&R due by 12/9/2022. Signed by Magistrate Judge Brian K. Epps on 11/21/22. (loh) Modified on 11/21/2022 (slt).
Case 3:22-cv-00108-DHB-BKE Document 9 Filed 11/21/22 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WARDEN, USP ATLANTA, 1
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner brings the above-captioned petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241, while incarcerated at McRae Correctional Institute. Respondent moves to
dismiss the petition. Petitioner has not responded, and therefore the motion is unopposed. See
Loc. R. 7.5. For the reasons set forth below, the Court REPORTS and RECOMMENDS
Respondent’s motion to dismiss be GRANTED, (doc. no. 6), the petition be DISMISSED
without prejudice, this civil action be CLOSED, and an appropriate judgment of dismissal be
Petitioner, while serving a federal sentence at McRae Correctional Institute in McRae-
Helena, Georgia, filed the instant § 2241 habeas petition, arguing he should be eligible for an
The Court DIRECTS the CLERK, to update the docket in accordance with the above
caption to reflect the warden at Petitioner’s current prison as the Respondent. See Rumsfeld v.
Padilla, 542 U.S. 426, 434-35 (2004) (explaining proper respondent in § 2241 case is warden of
institution where the petitioner is confined).
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earlier release date by receiving earned time credits under the First Step Act and having the
opportunity to participate in rehabilitative programs such as the Residential Drug Abuse
Program (“RDAP”) that are available at Bureau of Prison (“BOP”) facilities. (See generally
doc. no. 1.)
Respondent moves to dismiss, arguing Petitioner has not exhausted his
administrative remedies. (Doc. no. 6.)
The Exhaustion Requirement
Prisoners seeking habeas relief, including relief pursuant to § 2241, have long been
subject to administrative exhaustion requirements. Davis v. Warden, FCC Coleman-USP I,
661 F. App’x 561, 562 (11th Cir. 2016) (per curiam); Santiago-Lugo v. Warden, 785 F.3d 467,
474-75 (11th Cir. 2015); Rodriguez v. Lamer, 60 F.3d 745, 747 (11th Cir. 1995). Although
exhaustion of administrative remedies is not a jurisdictional requirement in a § 2241
proceeding, “that does not mean that courts may disregard a failure to exhaust and grant relief
on the merits if the respondent properly asserts the defense.” Santiago-Lugo, 785 F.3d at 47475; see also Fleming v. Warden of FCI Tallahassee, 631 F. App’x 840, 842 (11th Cir. 2015)
(per curiam) (same). Indeed, as the Supreme Court has explained, “Because exhaustion
requirements are designed to deal with parties who do not want to exhaust, administrative law
creates an incentive for these parties to do what they would otherwise prefer not to do, namely,
to give the agency a fair and full opportunity to adjudicate their claims.” Woodford v. Ngo,
548 U.S. 81, 90 (2006). Moreover, courts have followed a general rule not to “topple over
administrative decisions unless the administrative body not only has erred, but has erred
against objection made at the time appropriate under its practice.” Id. (emphasis in original).
Therefore, “[i]n order to properly exhaust administrative remedies, a petitioner must comply
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with an agency’s deadlines and procedural rules.” Davis, 661 F. App’x at 562.
The Federal Bureau of Prisons (“BOP”) “has established regulations governing formal
review of inmate complaints relating to any aspect of imprisonment,” codified in 28 C.F.R.
§ 542.10 et seq. United States v. Lucas, 898 F.2d 1554, 1556 (11th Cir. 1990) (per curiam).
The regulations require an inmate to first attempt informal resolution of the issue according to
that BOP facility’s informal resolution and complaint process. 28 C.F.R. § 542.13. If the issue
remains, the inmate must file a formal written Administrative Remedy Request with the
Warden. Id. § 542.14. After the Warden responds, the inmate may appeal to the BOP Regional
Director, and may appeal the Regional Director’s decision to the BOP General Counsel. Id.
§ 542.15. If an inmate does not receive a response to any request or appeal within the time
allowed for a response, the inmate is to treat the lack of response as a denial of the request or
appeal. Id. § 542.18. An inmate has only exhausted the administrative remedies process after
conclusion of the appeal to the BOP General Counsel. Davis, 661 F. App’x at 562.
The same exhaustion requirement applies to private prisons not operated by the BOP,
such as McRae Correctional Institute. See Pri-Har v. Corr. Corp. of Am., 154 F. App’x 886,
887-88 (11th Cir. 2005) (per curiam). Similar to the process outlined above, inmates at McRae
must (1) file a grievance locally with the Warden in accordance with McRae’s grievance
procedures, (2) appeal the Warden’s decision to the Administrator of the BOP’s Privatization
Management Branch, and (3) appeal the Administrator’s decision to the BOP General Counsel.
(Doc. no. 6-1, Littlejohn Decl. ¶ 6); see Figueras v. Johns, No. 5:17-CV-12, 2017 WL 4227393,
at *4 (S.D. Ga. Sept. 20, 2017) (noting inmates at private prison must appeal to Privatization
Management Branch and BOP General Counsel), adopted by, 2017 WL 5197019 (S.D. Ga.
Nov. 9, 2017). If an inmate files an administrative remedy concerning a BOP-related matter,
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the request will be recorded in the BOP’s SENTRY computer database. (Littlejohn Decl. ¶ 6.)
Petitioner Has Not Exhausted Available Administrative Remedies
Where, as here, Respondent has filed a motion to dismiss based on failure to exhaust
administrative remedies, the Eleventh Circuit has laid out a two-step process for courts to use
in resolving such motions. First, the Court looks to the factual allegations made by both
parties, taking the petitioner’s version as true where they conflict, and if in that light the petition
is subject to dismissal for failure to exhaust the full administrative remedies process, the
respondent’s motion will be granted. Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir.
2008) (citing Bryant v. Rich, 530 F.3d 1368, 1373-74 (11th Cir. 2008) (citations omitted)). 2
If the petition is not subject to dismissal at the first step, then at step two the Court
makes specific findings to resolve the disputed factual issues, with Respondent bearing the
burden of proving Petitioner has failed to exhaust his administrative remedies. Id. Based on
its findings as to the disputed factual issues, the Court determines whether the prisoner has
exhausted his available administrative remedies and thus whether the motion to dismiss should
be granted. Id. Because exhaustion “is treated as a matter of abatement and not an adjudication
on the merits, it is proper for a judge to consider facts outside 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.” Bryant, 530 F.3d at 1376.
Here, there is no dispute Petitioner did not exhaust his administrative remedies. With
his motion to dismiss, Respondent has attached a declaration by Kevin Littlejohn, a paralegal
Although Turner involved exhaustion requirements within the context of a 42 U.S.C.
§ 1983 action, it is also applicable to a § 2241 proceeding. See Blevins v. FCI Hazelton Warden,
819 F. App’x 853, 856 (11th Cir. 2020) (per curiam) (applying Turner to a § 2241 proceeding).
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specialist at the BOP, which includes a review of the SENTRY database for administrative
remedy requests filed by Petitioner. The declaration and attachments show Petitioner never
submitted any formal administrative remedy requests during his time at McRae Correctional
(Littlejohn Decl. ¶ 7 & attach. 2.)
Petitioner concedes he did not exhaust
administrative remedies in his petition and he did not respond to the motion to dismiss. (See
doc. no. 1, p. 2.) Rather, Petitioner relies on out-of-circuit, nonbinding precedent to argue
exhaustion was not required due to futility.
Futility Does Not Excuse Exhaustion
Prior to the Eleventh Circuit deciding exhaustion is not a jurisdictional requirement in
§ 2241 cases, there was a suggestion of a possible futility exception to the exhaustion
requirement. See Jaimes v. United States, 168 F. App’x. 356, 359 & n.4 (11th Cir. 2006) (per
curiam) (questioning whether futility exception exists). However, more recent Eleventh
Circuit precedent clarifies that all § 2241 petitioners must comply with the requirement of
administrative exhaustion. Fleming, 631 F. App’x at 842; Santiago-Lugo, 785 F.3d at 474-75;
see also Moore v. Colon, Case No. 20-22032-CV-GAYLES, 2020 WL 5868179, at *3-4 (S.D.
Fla. July 27, 2020) (collecting cases requiring exhaustion of administrative remedies before
bringing § 2241 petition), adopted by, 2020 WL 5848687 (S.D. Fla. Sept. 30, 2020); see also
Johnson v. Florida, 32 F.4th 1092, 1095-96 (11th Cir. 2022) (requiring state prisoner to exhaust
all available state remedies prior to seeking relief under § 2241, rejecting futility argument,
and affirming dismissal of claims for failure to exhaust).
This Court has consistently recognized that futility does not excuse exhaustion. See
Viera v. Dunbar, Civ. Act. No. 2:21-CV-79, 2022 WL 2376618, at *4 (S.D. Ga. June 7, 2022)
(“It is not the role of the court to consider the adequacy or futility of the administrative
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remedies afforded to the inmate”) (citing Higginbottom v. Carter, 223 F.3d 1259, 1261) (11th
Cir. 2000) and Varner v. Shepard, 11 F.4th 1252, 1264 (11th Cir. 2021), cert. denied, 142 S.
Ct. 1172 (2022)), adopted by, 2022 WL 2374387 (S.D. Ga. June 30, 2022); Mena v. Garrett,
Civ. Act. No. 2:19-cv-124, 2020 WL 5245225, at *4 (S.D. Ga. Aug. 13, 2020) (explaining
petitioner must exhaust even though BOP will likely reject his constitutional claims), adopted
by, 2020 WL 5245125 (S.D. Ga. Sept. 2, 2020); see also Colon, 2020 WL 5868179, at *4
(agreeing court’s role is not to consider futility of administrative remedies).
Furthermore, courts considering the issue of calculation of time credits under the First
Step Act have enforced exhaustion requirements and rejected futility arguments. See Viera,
2022 WL 2376618, at *4 and n.4 (requiring petitioner to administratively exhaust First Step
Act earned time credits claim despite perceived futility); Richards v. Dunbar, Civ. Act. No.
2:21-cv-69, 2022 WL 2375182, at *3-4 (S.D. Ga. June 8, 2022) (same), adopted by, 2022 WL
2374386 (S.D. Ga. June 30, 2022); Perez v. Joseph, Case No. 3:22cv2055-MCR-HTC, 2022
WL 2181090, at *2 (N.D. Fla. May 4, 2022) (same), adopted by, 2022 WL 2176505 (N.D. Fla.
June 15, 2022). Even if a futility exception existed, Petitioner has not shown any extraordinary
circumstances warranting application of such. See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.
1994) (per curiam) (noting futility exception only available in “extraordinary circumstances,”
and requires the petitioner to “bear the burden of demonstrating the futility of administrative
Because Petitioner has not exhausted all available administrative remedies prior to
filing this case, his petition should be dismissed without prejudice. Because the petition should
be dismissed based on lack of exhaustion, the Court need not address the alternative grounds
for dismissal raised by Respondent. Holdago v. United States, Civ. Act. No. 5:19-cv-9, 2019
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WL 5681217, at *3 (S.D. Ga. Oct. 31, 2019), adopted by, 2019 WL 635869 (S.D. Ga. Nov.
For the foregoing reasons, the Court REPORTS and RECOMMENDS Respondent’s
motion to dismiss be GRANTED, (doc. no. 6), the petition be DISMISSED without prejudice,
this civil action be CLOSED, and an appropriate judgment of dismissal be ENTERED.
SO REPORTED AND RECOMMENDED this 21st day of November, 2022, at
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