Hamilton v. Holt

Filing 11

REPORT AND RECOMMENDATIONS recommending that 9 MOTION to Dismiss for Lack of Jurisdiction be GRANTED and accordingly, that this action 1 Petition be DISMISSED WITHOUT PREJUDICE because Hamilton has failed to exhaust administrative remedies available to him within the BOP and because this court lacks jurisdiction over the respondent Warden Objections to R&R due by 1/8/2010 Signed by Magistrate Judge C Michael Hill on 12/22/09. (crt,Davis, C)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA B R I A N JAMES HAMILTON V ER SU S WARDEN RONNIE R. HOLT * * * C I V I L NO. 6:09cv1698 J U D G E DOHERTY M A G I S T R A T E JUDGE HILL

R E P O R T AND RECOMMENDATION In accordance with the standing order of this court, this matter was referred to the u n d e rs ig n e d Magistrate Judge for review, report, and recommendation. For the reasons which follow, the undersigned recommends that the government's M o tio n to Dismiss [rec. doc. 9] be GRANTED, and accordingly, that this action be D I S M I S S E D WITHOUT PREJUDICE because Hamilton has failed to exhaust a d m in is tra tiv e remedies available to him within the BOP and because this court lacks jurisdiction over the respondent Warden. S T A T E M E N T OF CLAIM B e f o re the Court is the government's Motion to Dismiss filed in response to the P e titio n for Writ of Habeas Corpus filed on September 28, 2009 by pro se petitioner, B ria n James Hamilton ("Hamilton"), pursuant to 28 U.S.C. § 2241. [rec. doc. 9]. Hamilton is currently incarcerated at the Federal Correctional Institution in Beaumont, T e x a s. However, at the time the petition was filed, Hamilton was incarcerated at the U n ite d States Penitentiary Canaan, located in Waymart, Pennsylvania. Hamilton names U S P Canaan Warden Ronnie R. Holt as the sole respondent.

In his petition, Hamilton asserts that he has been denied credit for time served f ro m March 30, 2006 until September 15, 2006, after he was removed from state custody w h ile awaiting his federal sentencing. Although Hamilton asserts in his petition that he h as exhausted his sentencing computation claim through the administrative procedure a p p lic a b le to Bureau of Prison inmates, submitting copies of his Request for A d m in is tra tiv e Remedy filed with the Warden of USP Canaan and Regional A d m in is tra tiv e Remedy Appeal filed with the Regional Director, the respondent has filed c o m p e te n t evidence which reveals that Hamilton has not fully and properly exhausted the a d m in is tra tiv e remedy procedure, by failing to file a Central Office Administrative R e m e d y Appeal with the General Counsel, before filing the instant action. [rec. doc. 9-3, D e c la ra tio n of Mike Flagor Paralegal Specialist, United States Department of Justice, F e d e ra l Bureau of Prisons; rec. doc. 8]. The respondent has further filed competent evidence that Hamilton has never been inca rce rate d within the jurisdiction of the United States District Court for the Western D is tric t of Louisiana since the filing of this action, and more specifically, that he was not in c a rc e ra te d within this Court's jurisdiction on the date the petition was filed or anytime th e re a f te r. [Id.]. Hamilton has not filed Opposition to the instant Motion.

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LAW AND ANALYSIS E x h a u s tio n of Administrative Remedies In the administration of federal prisoners, primary responsibility for supervision is d e leg a ted by statute to the Bureau of Prisons under the direction of the Attorney General. 1 8 U.S.C. § § 4001 and 4042. The Bureau of Prisons has promulgated rules and regulations through which an inmate may seek formal review of a complaint regarding any aspect of his imprisonment. See 28 C.F.R. §542.10 et seq. Such review entails a three level process. The first step requires that relief be sought from the Warden of the institution on the BOP approved form (BP-9). 28 C.F.R. § 542.14. The second step requires submission of an appeal, on the BOP approved form (BP-10), to the Regional Director for the region where the inmate is located. 28 C.F.R. § 542.15. The third and final step in the administrative process requires the inmate to appeal, on the BOP approved form (BP-11), to the General Counsel at the Central Office located in Washington, D.C. 28 C.F.R. § 542.15 ("Appeal to the General Counsel is the final administrative appeal."); see also Shah v. Quinlin, 901 F.2d 1241, 1243 (5th Cir. 1990) (outlining the administrative procedure). The United States Court of Appeals, Fifth Circuit, has held that a petitioner s e e k in g habeas corpus relief under 28 U.S.C. § 2241 is required to fully exhaust his a d m in is tra tiv e remedies prior to filing suit in federal court. Rourke v. Thompson, 11 F.3d 4 7 (5th Cir. 1993); Poer v. Miles, 263 F.3d 162 (5th Cir. 2001) (unpublished); Thomason v. Guzik, 226 F.3d 642 (5th Cir. 2000) (unpublished); Day v. Seanez, 24 F.3d 238 (5th Cir. 1994) (unpublished); United States v. Dowling, 962 F.2d 390, 393 (5th Cir.1992) (exhaustion of administrative remedies is prerequisite to judicial review of credit for time spent in presentence

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detention); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.1994) (§ 2241 challenge to parole c o m m iss io n determination); See also United States v. Wilson, 503 U.S. 329, 335, 112 S .C t. 1351, 1355 (1992) citing 28 C.F.R. § 542.10-542.16 ("Federal regulations have a f f o rd e d federal prisoners administrative review of the computation of their credits and p ris o n e rs have been able to seek judicial review of these computations after exhausting th e ir administrative remedies."). In Rourke the court stated: [ T ]h is court has determined that a § 2241 petitioner "must first exhaust his a d m in i str a tiv e remedies through the Bureau of Prisons." United States v. Gabor, 9 0 5 F.2d 76, 78 n. 2 (5th Cir. 1990); see also Lundy v. Osborn, 555 F.2d 534, 5345 3 5 (5th Cir. 1977) ("[G]rievances of prisoners concerning prison administration s h o u ld be presented to the Bureau [of Prisons] through the available administrative c h a n n els . Only after such remedies are exhausted will the court entertain the ap p lica tio n for relief in an appropriate case."). M o re o v e r, the exhaustion doctrine requires that a petitioner first pursue all p re sc rib e d administrative remedies which might provide appropriate relief before seeking re lie f from the federal courts. Day v. Seanez, 24 F.3d 238 at n.1 citing Smith v. T h o m p s o n , 937 F.2d 217, 219 (5th Cir.1991) (internal quotation and citation omitted); H e rr e ra -V illa to r o v. Driver, 269 Fed.Appx. 372, 373 (5 th Cir. 2008) (unpublished) citing W o o d fo r d v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386-87, 165 L.Ed.2d 368 (2006) (a f f irm in g dismissal for failure to exhaust because the petitioner did not complete the f in a l step of the administrative process provided by the Federal Bureau of Prisons, appeal to the Central Office); Irwin v. Hawk, 40 F.3d 347, 349 fn. 2 (11 th Cir. 1994) ("An inmate h a s not fully exhausted his administrative remedies until he has appealed through all three

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lev e ls." ); See also Woodford v. Ngo, 548 U.S. 81, 85 (2006) (noting that "[p]risoners must n o w exhaust all `available' remedies . . . [and that] exhaustion of available administrative rem ed ies is required for any suit challenging prison conditions, not just for suits under § 1 9 8 3 ." ). In the present case, the record reveals that petitioner has failed to fully exhaust a d m in is tra tiv e procedures prior to filing suit. The documents filed by petitioner do not in c lu d e a copy of any appeal to the General Counsel. To the contrary, petitioner has s u b m itte d only copies of his grievance to the Warden and his appeal to the Regional D ire c to r. [rec. doc. 8]. Moreover, the government has demonstrated that petitioner failed to appeal to the General Counsel at the Central Office located in Washington, D.C., as r e q u ir e d before proceeding herein. The Declaration of Mike Flagor, Paralegal Specialist f o r the United States Department of Justice, Federal Bureau of Prisons, establishes that H a m ilto n did not properly and fully complete the administrative process, as he did not file a n appeal to the General Counsel. [rec. doc. 9-3]. Accordingly, this action should be d i sm is s e d without prejudice on grounds that plaintiff has failed to fully exhaust a d m in is tra tiv e remedies available to him within the BOP. Jurisdiction Moreover, even if Hamilton had fully and properly exhausted administrative re m e d ies , this court does not have jurisdiction to entertain petitioner's challenge to his s e n te n c e computation by the Bureau of Prisons. The only proper respondent to a habeas

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p e titio n is the immediate custodian of the petitioner, who possesses the power to produce th e petitioner before the court. Rumsfeld v. Padilla, 542 U.S. 426, 434-435, 124 S.Ct. 2 7 1 1 (2004) (citations omitted). Thus, to entertain a § 2241 habeas petition, the district c o u rt must, upon the filing of the petition, have jurisdiction over the prisoner and his c u s to d ia n . Rumsfeld, 542 U.S. at 442-443; Gabor, 905 F.2d at 78 citing Blau v. United S ta te s, 566 F.2d 526, 527 (5th Cir.1978), and McClure v. Hopper, 577 F.2d 938, 939-40 (5 th Cir.1978), cert. denied, 439 U.S. 1077, 99 S.Ct. 854, 59 L.Ed.2d 45 (1979). Accordingly, "[w]henever a § 2241 habeas petitioner seeks to challenge his present p h ys ic a l custody within the United States, he should name his warden as respondent and f ile the petition in the district of confinement." Rumsfeld, 542 U.S. at 447. Hamilton filed the instant § 2241 petition on September 28, 2009, while he was in c a rc e ra ted in a Pennsylvania federal penitentiary, USP Canaan, where Warden Ronnie R . Holt served as his immediate custodian. [rec. doc. 9-3]. Since the filing of this p e titio n , Hamilton has been transferred to a Texas federal correctional institution, FCI B e a u m o n t, after having spent four days while in transit in an Oklahoma federal facility, F T C Oklahoma City. [See Id.]. Indeed, since the filing of this petition, Hamilton has n e v e r been incarcerated within the Western District of Louisiana. [See Id.]. Therefore, th e Western District of Louisiana lacks jurisdiction over both petitioner and his im m e d ia te custodian to afford Hamilton the relief he requests. Gabor and Rumsfeld, s u p r a . Accordingly, this action should be dismissed without prejudice on grounds that

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this court lacks jurisdiction over the respondent Warden. U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties a g g rie v e d by this recommendation have fourteen (14) business days from service of this re p o rt and recommendation to file specific, written objections with the Clerk of Court. A p a rty may respond to another party's objections within fourteen (14) days after being s e rv e d with a copy of any objections or responses to the district judge at the time of filing. Failure to file written objections to the proposed factual findings and/or the p r o p o se d legal conclusions reflected in this Report and Recommendation within fo u r te e n (14) days following the date of its service, or within the time frame a u t h o r iz e d by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either th e factual findings or the legal conclusions accepted by the District Court, except u p o n grounds of plain error. See, Douglass v. United Services Automobile A s s o c ia tio n , 79 F.3d 1415 (5th 1996). T H U S DONE AND SIGNED in Chambers at Lafayette, Louisiana, December 22, 2009.