Gonzalez v. Johns
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Gonzalez's 1 Petition for Writ of Habeas Corpus, DIRECT the Clerk of Court to CLOSE this case, and DENY Gonzalez in forma pauperis status on appeal. Any party seeking t o object to this Report and Recommendation is ordered 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 8/23/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/9/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 5:16-cv-38
TRACY JOHNS, Warden,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Jorge Gonzalez (“Gonzalez”), who was formerly incarcerated at D. Ray James
Correctional Facility in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 11.) For the reasons which
follow, I RECOMMEND the Court DISMISS Gonzalez’s Petition, DIRECT the Clerk of Court
to CLOSE this case, and DENY Gonzalez in forma pauperis status on appeal.
Gonzalez was convicted in the Eastern District of North Carolina, after entry of a guilty
plea, of conspiracy to distribute and possess with intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. § 846. He was sentenced to 120 months’ imprisonment on
August 5, 2009. (Doc. 11-1, pp. 13–14.) Gonzalez had a projected release date of March 20,
2017, via good conduct time credit. (Id. at p. 11.)
In his Petition, Gonzalez asserts that his due process rights were violated on August 16,
2010, as a result of disciplinary proceedings arising out of a charged incident of possession of a
cell phone and which occurred while he was housed at the Federal Correctional Institution in
Fort Dix, New Jersey (“FCI Fort Dix”). Specifically, Gonzalez avers he was not given the
opportunity to call witnesses. (Doc. 1, p. 4.) Gonzalez also contends he was sanctioned with the
loss of good conduct time credit that exceeds the sanction normally associated with this charged
offense. Gonzalez maintains the punishment he was given was inhumane and an abuse of
discretion. (Id.) In addition, Gonzalez contends the Bureau of Prisons (“BOP”) classified him as
a deportable alien, which precluded his participation in several programs, including release to a
halfway house. Moreover, Gonzalez asserts he was denied medical care and treatment for a
needed hernia operation. (Id. at p. 5.) Gonzalez seeks the restitution of his forfeited good
conduct time and his immediate release. 1 (Id. at p. 6.)
Respondent avers Gonzalez failed to exhaust his administrative remedies prior to filing
his Petition, and his Petition should be dismissed as a result. (Doc. 11.) The Court addresses
Whether Gonzalez Exhausted his Administrative Remedies
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
Several of the claims Gonzalez raises in his Petition are of alleged constitutional violations and should
have been brought pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). However, because the remedies Gonzalez seeks are restitution of lost good conduct
time and his immediate release, the Court addresses his Petition as containing solely claims for habeas
relief. When a prisoner makes a claim that, if successful, could shorten or invalidate his term of
imprisonment, the claim must be brought as a habeas petition, not as a Bivens claim. See e.g., Edwards v.
Balisok, 520 U.S. 641 (1997); Heck v. Humphrey, 512 U.S. 477 (1994). Even if the Court were to
address the constitutional claims, those claims would be subject to dismissal, too, based on Gonzalez’s
failure to exhaust his administrative remedies.
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
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)).
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
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.
The Supreme Court has noted exhaustion must be “proper.”
Id. at 92.
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
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.
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).
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
administrative remedies. 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.
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. § 542.10, et
The Administrative Remedy Program applies to all inmates incarcerated in penal
institutions operated by the BOP. 3 28 C.F.R. § 542.10(b). Under the applicable Regulations, an
Respondent mentions that inmates who are housed at D. Ray James Correctional Facility have access to
the BOP’s administrative remedy process to file grievances relating to BOP matters, such as the loss of
good conduct time. (Doc. 11, p. 5.) While this is an accurate statement, the Court questions the
relevancy of such a statement to Gonzalez’s Petition. Gonzalez was not housed at D. Ray James
Correctional Facility until October 15, 2014, or more than four (4) years after the August 2010
disciplinary proceedings at FCI Fort Dix. (Id. at pp. 1, 3.) Thus, Gonzalez would have had to have
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
“BP-9” form. (Doc. 11-1, p. 40.) 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. 11-1, p. 43.) 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.)
In those situations in which an inmate is appealing a disciplinary hearing proceeding,
however, the inmate is to submit an appeal directly with the Regional Director, or a BP-10, for
the region in which the inmate is located at the time of filing. (Id. at p. 42.) At any level, the
coordinator may reject and return an appeal that does not meet any of the requirements, 28
C.F.R. § 542.17, including only using only one letter-sized continuation page, (doc. 11-1, p. 44).
The inmate must be provided with written notice of the reason for rejection and be given a
completed the administrative remedy process long before he was housed at D. Ray James. Gonzalez was
transferred out of FCI Fort Dix on September 8, 2010, and was admitted to what appears to be another
BOP facility on November 12, 2010, until September 26, 2014. (Doc. 11-1, p. 20.) Accordingly, the
BOP’s exhaustion requirements are what are at issue in this case.
reasonable extension of time to correct the deficiencies. (Id.) If the inmate is not given an
opportunity to correct the defect or resubmit, he can appeal the rejection. (Id. at p. 45.)
Gonzalez’s Efforts at Exhaustion
In his Petition, Gonzalez does not mention whether he exhausted his available
However, the evidence before the Court reveals that
Gonzalez filed a BP-10 on August 20, 2010, while he was still housed at FCI Fort Dix, in which
he appealed the disciplinary hearing proceedings against him. (Doc. 11, pp. 3–4.) The Regional
Director rejected Gonzalez’s BP-10 on August 31, 2010, because Gonzalez attached too many
continuation pages. (Id. at pp. 6–7; Doc. 11-1, pp. 6, 62.) Gonzalez was advised he could
resubmit his appeal in proper form within ten (10) days, yet he failed to do so. (Doc. 11-1, p. 6.)
Nor did Gonzalez otherwise use the administrative remedy process to attack the disciplinary
proceedings or appeal the rejection of his BP-10—specifically, the filing an appeal with the
Office of General Counsel, which is the last step of the administrative remedies process.
Gonzalez failed to exhaust his administrative remedies prior to the filing of his Petition.
Consequently, the Court should DISMISS Gonzalez’s Petition.
Leave to Appeal in Forma Pauperis
The Court should also deny Gonzalez leave to appeal in forma pauperis.
Gonzalez 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 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 Gonzalez’s Petition and Respondent’s Response, 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 Gonzalez in forma pauperis status on appeal.
Based on the foregoing, I RECOMMEND that the Court DISMISS without prejudice
Gonzalez’s 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 Gonzalez 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.
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 Gonzalez and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 9th day of August,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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