Magwood, Earl v. Keyes

Filing 4

ORDER dismissing #1 Petition for Writ of Habeas Corpus without prejudice for failure to exhaust administrative remedies. Signed by District Judge James D. Peterson on 11/14/2023. (lam),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

EARL C. MAGWOOD,
Petitioner,
v.

OPINION and ORDER
23-cv-665-jdp

FCI WARDEN KEYES,
Respondent.

Earl C. Magwood, appearing pro se, is incarcerated at the Federal Correctional
Institution in Oxford, Wisconsin. Magwood has filed a petition for writ of habeas corpus under
28 U.S.C. § 2241, seeking an order directing the Bureau of Prisons to apply 145 days of First
Step Act time credits that would entitle him to earlier placement in prerelease custody or
supervised release. But Magwood concedes that he has not exhausted his administrative
remedies for his request, so I will deny his petition without prejudice.
Courts generally require a prisoner to exhaust the BOP’s administrative remedies before
bringing a § 2241 action. See Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004);
Anderson v. Miller, 772 F.2d 375, 376–77 (7th Cir. 1985). To start the process, the prisoner
must file an informal complaint with BOP staff. 28 C.F.R. § 542.13(a). If the prisoner cannot
informally resolve his complaint, he must file an administrative remedy request on a BP-9 form
within 20 days after the incident at issue. 28 C.F.R. § 542.14(a). If the prisoner is unsatisfied
with the warden’s response, he may submit an appeal on a BP-10 form to the Regional Director
within 20 days. 28 C.F.R. § 542.15(a). If the prisoner is unsatisfied with the Regional
Director’s response, he may submit an appeal on a BP-11 form to the Office of General Counsel
within 30 days. Id.

Magwood states that he filed a BP-9 form challenging the denial of his credits, but the
warden refuses to respond, which Magwood contends violates his due process rights because
the lack of response makes him unable to file an appeal. Magwood is incorrect about the
consequences of the warden’s failure to respond. When a prison official fails to respond to an
administrative request or appeal, the prisoner “may consider the absence of a response to be a
denial at that level.” See 28 C.F.R. § 542.18. So Magwood still has an opportunity to exhaust
the remaining levels of the administrative process by treating the warden’s non-response as a
denial of his request and filing an appeal.
I may excuse a failure to exhaust where: (1) requiring exhaustion would cause prejudice
because of the time required; (2) the agency cannot resolve the issue or grant the requested
relief; (3) exhaustion would be futile because the agency is biased or has already determined
the issue; or (4) substantial constitutional questions are raised. Gonzalez v. O’Connell,
355 F.3d 1010, 1016 (7th Cir. 2004). These exceptions do not apply to Magwood. In
particular, his projected release date is September 28, 2024, so if he acts promptly, he should
be able to exhaust administrative remedies well before his projected release date.

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ORDER
IT IS ORDERED that:
1. Earl C. Magwood’s petition under 28 U.S.C. § 2241, Dkt. 1, is DISMISSED
without prejudice for failure to exhaust administrative remedies.
2. The clerk of court is directed to enter judgment and close this case.
Entered November 14, 2023.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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