THOMPSON v. ZICKEFOOSE
Filing
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OPINION. Signed by Judge Jerome B. Simandle on 12/22/2011. (TH, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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WARDEN DONNA ZICKEFOOSE,
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Respondent.
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GIFFORD THOMPSON,
Civil Action No. 11-4202 (JBS)
O P I N I O N
APPEARANCES:
GIFFORD THOMPSON, Petitioner Pro Se
#18189-0160
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
SIMANDLE, District Judge
Petitioner Gifford Thompson, a federal prisoner currently
confined at the Federal Correctional Institution Fort Dix in Fort
Dix, New Jersey (“FCI Fort Dix”), submitted a petition for a writ
of habeas corpus, pursuant to 28 U.S.C. § 2241,1 on or about July
1
Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.
* * *
(c) The writ of habeas corpus shall not extend to a
prisoner unless-... (3) He is in custody in violation
of the Constitution or laws or treaties of the United
States ....
22, 2011, challenging a prison disciplinary finding that resulted
in the loss of good conduct time.
In particular, Petitioner asks
that the prohibited act Code 108 violation be changed to a lesser
Code 305 violation.
The named respondent (hereinafter, the
“Government”) is Donna Zickefoose, Warden at FCI Fort Dix, where
Petitioner was confined at the time he filed this petition.
Because it appears from a review of the submissions that
Petitioner did not attempt to exhaust his administrative remedies
before filing this petition, the petition will be dismissed
without prejudice accordingly.
BACKGROUND
Petitioner alleges that on April 8, 2011 he received an
incident report for a Code 108 violation, namely a cell phone
charge.
On April 25, 2011, Petitioner appeared before the
Disciplinary Hearing Officer (“DHO”) for a hearing o the
incident.
The DHO found Petitioner to have committed the
prohibited act Code 108.
Petitioner argues here that the
violation should have been charged as a Code 305 violation.
It
is plain from the face of the petition that Petitioner did not
exhaust his administrative remedies before bringing this action.
DISCUSSION
A.
Standard of Review
United States Code Title 28, Section 2243 provides in
relevant part:
A court, justice or judge entertaining an
application for a writ of habeas corpus shall forthwith
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award the writ or issue an order directing the
respondent to show cause why the writ should not be
granted, unless it appears from the application that the
applicant or person detained is not entitled thereto.
The Court recognizes that a pro se pleading is held to less
stringent standards than more formal pleadings drafted by
attorneys.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v.
Kerner, 404 U.S. 519, 520 (1972).
Thus, a pro se habeas petition
should be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.
Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989).
Because
Petitioner is proceeding pro se in his application for habeas
relief, the Court will accord his petition the liberal
construction intended for pro se litigants.
B.
Exhaustion of Administrative Remedies
As an initial matter, this Court notes that Petitioner did
not fully exhaust his administrative remedies before filing this
habeas petition.
Although 28 U.S.C. § 2241 contains no statutory
exhaustion requirement, a federal prisoner ordinarily may not
bring a petition for writ of habeas corpus under 28 U.S.C. §
2241, challenging the execution of his sentence, until he has
exhausted all available administrative remedies.2
2
See, e.g.,
To exhaust administrative remedies before the Federal
Bureau of Prisons, a federal inmate seeking review of an aspect
of his confinement must first seek to resolve the dispute
informally. See 28 C.F.R. § 542.13. If the inmate does not
receive a favorable termination, he may submit a formal written
Administrative Remedy Request for response by the warden of the
facility. See 28 C.F.R. § 542.14. If the inmate is not
satisfied with the warden’s response, he may appeal the warden’s
3
Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v.
United States Parole Comm’n, 648 F.2d 196, 199 (3d Cir. 1981);
Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973).
The
exhaustion doctrine promotes a number of goals:
(1) allowing the appropriate agency to develop a
factual record and apply its expertise facilitates
judicial review; (2) permitting agencies to grant the
relief requested conserves judicial resources; and (3)
providing agencies the opportunity to correct their own
errors fosters administrative autonomy.
Goldberg v. Beeler, 82 F. Supp.2d 302, 309 (D.N.J. 1999), aff’d,
248 F.3d 1130 (3d Cir. 2000).
See also Moscato v. Federal Bureau
of Prisons, 98 F.3d 757, 761 (3d Cir. 1996).
Nevertheless,
exhaustion of administrative remedies is not required where
exhaustion would not promote these goals.
See, e.g., Gambino v.
Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required
where petitioner demonstrates futility); Lyons v. U.S. Marshals,
840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where
it “would be futile, if the actions of the agency clearly and
unambiguously violate statutory or constitutional rights, or if
the administrative procedure is clearly shown to be inadequate to
prevent irreparable harm”); Carling v. Peters, 2000 WL 1022959,
decision to the Regional Director within 20 days of the date of
the decision. If he is not satisfied with the Regional
Director’s response, he may submit an appeal of the Regional
Director’s decision to the Central Office within 30 days of the
date of the decision. See C.F.R. § 542.15. If these 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.
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*2 (E.D. Pa. 2000) (exhaustion not required where delay would
subject petitioner to “irreparable injury”).
In Snisky v. Pugh, the petitioner did not deny his failure
to exhaust; however, the Court excused exhaustion because the
petitioner was scheduled to be released, and his claim was
clearly without merit.
See 974 F. Supp. 817, 819 (M.D. Pa.
1997), rev’d on other grounds, 159 F.3d 1353 (3d Cir. 1998).
The
court recognized that exhaustion could be excused where it would
be futile.
See id.
In Snisky, the court found that the BOP
“unequivocally” would deny the petitioner’s relief, and he would
return to the district court after the denial.
Thus, the court
addressed the claims on the merits.
Likewise, in Ferrante v. Bureau of Prisons, the court found
that if the petitioner’s claim were meritorious, he would be
released to a halfway house relatively soon; therefore,
dismissing the petition for lack of exhaustion would be futile.
See 990 F. Supp. 367, 370 (D.N.J. 1998)(citing Snisky, 974 F.
Supp. at 819-20).
Further, the court held that the petitioner’s
claim was clearly without merit, so that the exhaustion issue
need not be reached.
See id.
See also Fraley v. Bureau of
Prisons, 1 F.3d 924, 925 (9th Cir. 1993)(stating that exhaustion
was not required because it was futile, as Regional Director
would “almost certainly” have denied request, and term of
imprisonment was completed).
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Here, Petitioner has not alleged any facts that would permit
this Court to find that exhaustion of administrative remedies
would have been futile or that exhaustion would have subjected
him to “irreparable injury.”
Petitioner has not indicated an
imminent release date that would make full exhaustion in this
case futile.
In fact, it is plain from the face of the petition
that Petitioner has not attempted to exhaust his administrative
remedies.
In a letter received by the Court on September 12,
2011 (Docket entry no. 2), Petitioner informed the Court that he
was having difficulties pursuing his administrative remedies, but
he does not explain how he is being hindered from pursuing
administrative relief.
Rather, he simply states that on August
3, 2011, court forms, such as an form application for indigent
status relative to this matter, were allegedly confiscated from
him and withheld.
There is no mention that Petitioner has
followed the administrative remedy process before filing this
petition.
Therefore, this Petition will be dismissed without prejudice
for failure to exhaust administrative remedies.
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IV.
CONCLUSION
For the reasons set forth above, this Petition for habeas
relief under 28 U.S.C. § 2241 will be dismissed without prejudice
for failure to exhaust administrative remedies.
An appropriate
order follows.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
Dated:
December 22, 2011
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