Bailey v. Tucker
MEMORANDUM OPINION AND ORDER pursuant to the petitioner's 1 application for habeas corpus relief, which the court treats as a request pursuant to 28 U.S.C. § 2241; adopting and incorporating the 29 Proposed Findings and Recommenda tion, except that the case is dismissed with prejudice in light of petitioner's 2/1/2012 release; the additional recommendation respecting revival of the 20-day administrative appeal period also need not be adopted in light of the changed circumstances surrounding petitioner's custody status; directing that this action is dismissed with prejudice. Signed by Judge John T. Copenhaver, Jr. on 4/20/2012. (cc: petitioner; attys; United States Magistrate Judge) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 2:11-0798
STEPHEN C. TUCKER, Administrator,
South Central Regional Jail,
MEMORANDUM OPINION AND ORDER
Pending is petitioner’s application for habeas corpus
relief, filed October 26, 2011, which the court treats as a
request pursuant to 28 U.S.C. § 2241.
This action was previously referred to the Honorable
Mary E. Stanley, United States Magistrate Judge, for submission
to the court of her Proposed Findings and Recommendation (“PF&R”)
for disposition pursuant to 28 U.S.C. § 636.
The petition is fully described by the magistrate judge
in her PF&R.
On January 13, 2012, the magistrate judge entered
her PF&R recommending a number of findings culminating in
dismissal of the petition without prejudice for failure to
exhaust administrative remedies.
On January 30, 2012, petitioner objected.
date, he was incarcerated at FCC Coleman in Coleman, Florida.
February 1, 2012, he was released from custody.
He asserts that
(1) he did not, as alleged by respondent, receive postdeprivation notice of the sanctions imposed respecting the first
incident, in violation of Bureau of Prisons’ (“BOP”) regulations,
(2) he did not receive a hearing prior to the imposition of
sanctions respecting the second incident, and (3) he need not
exhaust his administrative remedies inasmuch as it “would deny .
. . [him] any recourse if he was to win because he is already at
the end of an illegal sentence.”
(Objecs. at 3).
Inasmuch as petitioner has now been released from
custody, his section 2241 petition is moot.
See Inmates v.
Owens, 561 F.2d 560, 562 (4th Cir. 1977) (stating “[T]he inmates
who sought declaratory and injunctive relief relating to the five
conditions of confinement complained of were no longer subjected
to the alleged treatment once they were released.
we hold that their claims for injunctive relief are moot.”);
see also Brian R. Means, Federal Habeas Manual § 1:72 (2011)
(“Generally, claims involving adverse prison administrative
actions, regardless of their possible merits, become moot once
the prisoner is no longer subject to the challenged
action.”)(citing Owens and, additionally, Incumaa v. Ozmint, 507
F.3d 281, 286-87 (4th Cir. 2007); McAlpine v. Thompson, 187 F.3d
1213, 1216-18 (10th Cir. 1999); Scott v. District of Columbia,
139 F.3d 940, 941 (D.C. Cir. 1998); Dilley v. Gunn, 64 F.3d 1365,
1368 (9th Cir. 1995)).
Were that not the case, petitioner’s challenges could
have, and as the magistrate judge suggests should have, been
addressed through the administrative appeal process.
has not sought to avail himself of that process either prior to
or following receipt of notice of the sanctions imposed.
failure to exhaust would have resulted in the dismissal of his
claims without prejudice.1
There is yet another infirmity that need not be addressed
at length in light of the mootness analysis and the failure to
exhaust. Petitioner is no longer incarcerated in this district.
Section 2241 provides, in pertinent part, as follows: “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.” 28 U.S.C. § 2241(a) (emphasis added).
The underscored language has led courts to conclude that “[t]he
rule governing jurisdiction [under section 2241] naturally
follows from the ‘immediate custodian rule’: a district court
properly exercises jurisdiction over a habeas petition whenever
it has jurisdiction over the petitioner's custodian.” United
States v. Poole, 531 F.3d 263, 271 (4th Cir. 2008) (citing Braden
v. 30th Judicial Circuit Court, 410 U.S. 484, 495 (1973)); Larry
W. Yackle, Postconviction Remedies § 4:12 (Elec. ed. 2010)
(stating that “jurisdiction under section 2241 lies not only in
the district where the petitioner is physically located, but also
in the district where ‘a custodian responsible for the
confinement is present.’”) (quoted authority omitted); Brian R.
Means, Federal Habeas Manual § 1:101 (Elec ed. 2010) (“A § 2241
Based upon a de novo review, and having found the
objections meritless, the court adopts and incorporates herein
the magistrate judge’s PF&R, except that the case is dismissed
with prejudice in light of petitioner’s February 1, 2012,
The additional recommendation respecting revival of the
20-day administrative appeal period also need not be adopted in
light of the changed circumstances surrounding petitioner’s
The court, accordingly, ORDERS that this action be, and
it hereby is, dismissed with prejudice.
The Clerk is directed to forward copies of this written
opinion and order to the petitioner, all counsel of record, and
the United States Magistrate Judge.
DATED: April 20, 2012
John T. Copenhaver, Jr.
United States District Judge
habeas petitioner seeking to challenge his present physical
custody within the United States must file the petition in the
district of confinement.”). The aim in situations of this type
is to permit resolution of the controversy in the district of
incarceration. See United States v. Little, 392 F.3d 671, 680
(4th Cir. 2004).
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