Gaines v. Samuels
MEMORANDUM AND ORDER ENTERED: Petitioner's motion 2 to proceed in forma pauperis is denied and he is granted thirty (30) days in which to submit the fee of $5.00 to the court. Within the same thirty-day period, petitioner is required to submit his petition upon court-approved forms and to show cause why this action should not be dismissed for failure to exhaust administrative remedies and failure to state a claim entitling him to relief. Signed by Senior District Judge Richard D. Rogers on 2/14/2013. (Mailed to pro se party Calvin Bernis Gaines by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CALVIN BERNIS GAINES,
Charles E. Samuels, Warden,
MEMORANDUM AND ORDER
This petition for writ of habeas corpus was filed pro se
pursuant to 28 U.S.C. § 2241 by an inmate of the United States
Penitentiary, Leavenworth, Kansas.
Mr. Gaines was convicted of
drug trafficking and is serving a 43-month sentence imposed by
the United States District Court for the Eastern District of
Petitioner claims that the Bureau of Prisons (BOP) should be
required to review inmates for placement in a Residential Reentry Center (RRC) earlier than the current policy allows and
placement to 6 months.
He seeks a court order requiring the BOP
earlier and more favorably.
Having considered the petition, the
court finds as follows.
MOTION TO PROCEED IN FORMA PAUPERIS
Petitioner has filed a Motion to Proceed in forma pauperis.
Having considered the motion, the court finds that it must be
denied because his current balance indicates he has funds to pay
the $5 fee.
Accordingly, petitioner is required to submit the
If he fails to comply within the time allotted, this
action may be dismissed without further notice.
PETITION IS NOT ON FORMS
Local court rule requires that habeas corpus applications
utilized the forms.
Instead, he has filed a very lengthy and
general legal memorandum that presents few facts regarding his
He is required to submit his application upon
allotted, this action may be dismissed without further notice.
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
available administrative remedies is a prerequisite to a federal
prison inmate seeking judicial review of administrative action
U.S.C. § 2241.
See Williams v. O=Brien, 792 F.2d 986, 987 (10th
Cir. 1986); see also Martinez v. Roberts, 804 F.2d 570, 571 (9th
Cir. 1986); McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir.
2004)(citing Carmona v. U.S. Bureau of Prisons, 243 F.3d 629,
634 (2nd Cir. 2001); Little v. Hopkins, 638 F.2d 953, 953-54 (6th
Administrative exhaustion is generally required
for three valid reasons: (1) to allow the agency to develop a
judicial review; (2) to permit the agency to grant the relief
provide the agency the opportunity to correct its own errors,
which “fosters administrative autonomy.”
See Moscato v. Federal
BOP, 98 F.3d 757, 761-62 (3rd Cir. 1996).
In order to have fully
exhausted, petitioner must have raised claims on administrative
appeal1 that are identical to those he now presents in this
federal habeas corpus petition.
It plainly appears from petitioner’s arguments and exhibits
that he has not fully exhausted administrative remedies.
is true whether petitioner’s claim is that his application for
RRC placement was considered too late to allow exhaustion of
administrative and judicial remedies or that he was improperly
The BOP provides a three-level Administrative Remedy Program for
inmates to obtain “review of an issue which relates to any aspect of their
confinement.” 28 C.F.R. § 542.10. First, an inmate must attempt informally
to resolve the issue with institutional staff.
28 C.F.R. § 542.13(a).
the concern is not informally resolved, an inmate may file an appeal to the
Warden. 28 C.F.R. § 542.14. Next, an inmate may appeal an adverse decision
to the Regional Director.
28 C.F.R. § 542.15(a).
Finally, the inmate may
appeal to the BOP’s Central Office. Id. No administrative remedy appeal is
considered fully and finally exhausted until it has been denied by the
Central Office. Id. If responses are not received by the inmate within the
time allotted for reply, “the inmate may consider the absence of a response
to be a denial at that level.” 28 C.F.R. § 542.18.
denied RRC placement for the full 12 months.
Mr. Gaines does
not allege facts or provide exhibits showing that he filed a BP8, BP-9, BP-10, and a BP-11 challenging the decision as to the
placement decision relative to the review process.
prerequisite, including “a narrow futility exception,” which the
Tenth Circuit Court of Appeals has “recognized in the context of
petitions brought under 28 U.S.C. § 2254;” and “other circuits
have recognized in the context of petitions brought under
See Ciocchetti v. Wiley, 2009 WL 4918253 (10th Cir. Dec.
22, 2009, unpublished)2(citing see Fairchild v. Workman, 579 F.3d
1134, 1155 (10th Cir. 2009); see e.g., Fazzini v. Northeast Ohio
Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2006)).
“apply only in ‘extraordinary circumstances,’ and [petitioner]
bears the burden of demonstrating the futility of administrative
Petitioner argues that exhaustion should be excused in his
process, and it would be futile based upon BOP Director Harley
This unpublished case is cited for its reasoning only, and not as
Lappin’s statement in 2008 not to expect the Second Change Act
to result in a substantial move to RRC facilities.
of these arguments, he alleges that were he required to pursue
twelve months” or “inside the twelve months before his release
take as long as 140 to 220 days.
that requiring full exhaustion would
deprive him of time in an RRC.
However, this, in and of itself,
is not such an extraordinary circumstance as to warrant waiver
of the exhaustion requirement.
The Supreme Court has required
that even those inmates who may be entitled to immediate release
exhaust their administrative remedies.
Faced with the argument
deprive a . . . prisoner of the speedy review of his grievance
which is so often essential to any effective redress,”
“exhaustion of . . . remedies takes
time” but concluded “there is no reason to assume that . . .
Preiser v. Rodriguez, 411 U.S. 475, 494-95 (1973).
simply because a prisoner anticipates he will not obtain relief
on administrative appeal before the final year of his sentence.
The twelve-month mark in the Second Chance Act is an express
statutory maximum, and not a mandated minimum.
See 18 U.S.C.
Petitioner’s arguments to the contrary are not
has not met his burden of showing
Accordingly, the court finds this §
FAILURE TO STATE CLAIM FOR RELIEF UNDER § 2241
The court also finds that Mr. Gaines has failed to state
facts to support a claim for relief under § 2241.
28 U.S.C. §
shall not extend to a prisoner unless . . . he is in custody in
violation of the Constitution or laws or treaties of the United
States . . . .”
Petitioner asks the court to order the BOP to
consider his application for placement “in good faith” and “on
an individualized basis using the five factors” in 18 U.S.C. §
3621(b) and to take into account the language of 18 U.S.C. §
3624(c)(6)(C), which he claims grant[s] him the maximum amount
alleges no facts to demonstrate that proper consideration of
requisite statutory provisions was not provided in determining
whatsoever regarding the RRC placement decision in his case, and
does not even allege that a decision has been rendered.
Petitioner is given thirty (30) days in which to show cause
why this action should not be dismissed for failure to exhaust
and for failure to state a claim under § 2241.
IT IS THEREFORE ORDERED that petitioner’s Motion to Proceed
in forma pauperis (Doc. 2) is denied, and he is granted thirty
(30) days in which to submit the fee of $5.00 to the court.
period petitioner is required to submit his petition upon courtapproved forms and to show cause why this action should not be
failure to state a claim entitling him to relief.
The clerk is directed to send § 2241 forms to petitioner.
IT IS SO ORDERED.
This 14th day of February, 2013, at Topeka, Kansas.
s/RICHARD D. ROGERS
United States District Judge
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