Acosta Loja v. Perry et al

Filing 15

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Loja's 1 Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Acosta Loja in forma pauperis status on appeal. Any party seeking to 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 10/3/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 9/19/2017. (csr)

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

HUGO RAMIRO ACOSTA LOJA,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-34

v.
WARDEN T. JOHNS,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Hugo Ramiro Acosta Loja (“Acosta Loja”), who is currently housed 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 that the Court DISMISS without prejudice Acosta
Loja’s Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Acosta Loja in
forma pauperis status on appeal.
BACKGROUND
Acosta Loja is currently serving a 120-month federal sentence for possession of heroin
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). (Doc. 12-1,
p. 7.) He has a home detention eligibility date of July 3, 2019, and a projected release date of
January 3, 2020. (Id.) On May 22, 2016, prison officials issued an incident report against
Acosta Loja for alleged violations of the Bureau of Prisons’ (“BOP”) discipline regulations.
(Doc. 1-1, p. 5.) At the discipline hearing, Acosta Loja admitted to possession of a hazardous
tool, namely a cell phone. (Id.) As a result, Acosta Loja was sanctioned with, among other

things, loss of 41 days’ good conduct time and forfeiture of 90 days’ non-vested good conduct
time. (Id.)
On March 30, 2017, Acosta Loja filed this Petition contesting the loss of his good
conduct time. (Doc. 1.) Acosta Loja maintains that the BOP improperly penalized him by
sanctioning both his good conduct time and his non-vested good conduct time. (Id. at pp. 6, 8.)
Respondent argues that the sanctions were appropriate because they comport with BOP policy,
and Petitioner received appropriate process during the disciplinary proceedings. (Doc. 12, pp. 6–
10.) However, Respondent asserts that the Court should not review the relative merits of Acosta
Loja’s Petition because he has not exhausted his available administrative remedies concerning
his good time credit sanctions. (Id.)
DISCUSSION
I.

Whether Acosta Loja 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
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

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U.S. 199, 216 (2007).

However, the normal pleading rules still apply, and dismissal is

appropriate when an affirmative defense appears on the face of a complaint—making it clear that
a prisoner cannot state a claim for relief. Id. at 214–15. Thus, when a party admits in his
complaint or petition that he has not exhausted the grievance process, dismissal is warranted.
See Okpala v. Drew, 248 F. App’x 72 (11th Cir. 2007); Cole v. Ellis, No. 5:10-CV-00316-RSGRJ, 2010 WL 5564632, at *3 (N.D. Fla. Dec. 28, 2010); Rashid v. Liberty Cty. Jail, CV410092, 2010 WL 3239241, at *1 n.1 (S.D. Ga. May 3, 2010) (“Nothing in Jones . . . forbids the
Court from dismissing a complaint pursuant to [42 U.S.C.] § 1997e(a) if it is clear from the face
of the complaint that the prisoner has not exhausted all administrative remedies available to
him.”).
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). 1

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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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The United States 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 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 [Prison Litigation Reform Act],
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

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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.
C.

Analysis of Acosta Loja’s’s Efforts at Exhaustion

In his Petition, Acosta Loja avers that he filed a grievance to appeal his loss of good
conduct time. (Doc. 1, p. 2.) However, he indicates “N/A” when asked by the 28 U.S.C. § 2241
Form Petition whether he appealed the denial of his grievance. (Id. at pp. 3–4.) Respondent
asserts that Acosta Loja did not, in fact, complete all steps within the grievance process. (Doc.
12, pp. 5–6.) Acosta Loja did not file a Reply. Because it is unclear whether Acosta Loja did in
fact exhaust all administrative remedies, the Court will proceed to the second Turner step and
make specific factual findings pertinent to the exhaustion question.

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Inmates at D. Ray James attempting to exhaust administrative remedies for disciplinary
matters must first file a BP-10 form with the Regional Director. 2 (Doc. 12-1, p. 3.) If the
Regional Director denies the appeal, the inmate may then file a final appeal with the National
Inmate Appeals Administrator in the Central Office of the BOP by submitting a BP-11 form.
(Id.) The evidence before the Court reveals that Acosta Loja did not complete the administrative
remedy process. (Id. at pp. 3, 11.) Acosta Loja’s administrative remedy records indicate only
two BP-10 forms filed with the BOP—one for the loss of good time credits contested in his
Petition and one for “lost property when placed in SHU.” (Id. at p. 11.) Acosta Loja does not
have any BP-11 filings on record, much less the one needed to contest his good time credits.
Acosta Loja did not file a Reply to refute the materials and arguments provided by Respondent.
Thus, under the second Turner step, the Court finds that Respondent’s account of
Plaintiff’s exhaustion to be the more reliable account. Acosta Loja did not complete a final
appeal to challenge the loss of his good time credits. In fact, Acosta Loja’s Petition appears to
corroborate this finding. Although Acosta Loja did not affirmatively check “No” when asked
whether he had appealed the Regional Director’s decision, he did proceed to write “N/A” in
answer to every subsequent question asking him whether he appealed. (Doc. 1, pp. 2–4.)
Therefore, it is apparent that Acosta Loja failed to properly exhaust his available
administrative remedies prior to filing this Petition. Consequently, the Court should DISMISS
Acosta Loja’s Petition.

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The Court cannot determine whether an inmate at D. Ray James must also file a grievance at the local
level with the Warden. Respondent does not include this information in either their briefing or the
affidavit provided by the Administrative Remedy Clerk. In fact, Respondent failed to provide any
supplemental materials documenting the grievance policy and procedures at either the local or BOP level.

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II.

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

Acosta Loja 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 Acosta Loja’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 in forma pauperis status on appeal.

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CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS without prejudice
Acosta Loja’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 Acosta Loja 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.

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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon Acosta Loja and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of September,
2017.

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

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