United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATIONS
BRAMLETTE UNITED STATES DISTRICT JUDGE
cause is before the Court on the petition for Writ of Habeas
Corpus, filed under § 2241, the Report and
Recommendation (docket entry 13) of the
United States Magistrate Judge, Michael T. Parker, and
petitioner's Objection thereto. (docket entry 14). Having
carefully considered the petitioner's Objection and
conducted a de novo review of those portions of the
Report and Recommendation to which the petitioner has
objected in light of all applicable law, the Court finds that
the petitioner's case should be dismissed sua
sponte for petitioner's failure to exhaust his
administrative remedies with the Bureau of Prisons
(“BOP”) and demonstrate extraordinary
circumstances which would constitute an exception to the
August 25, 2017, Delagado filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241. He challenges the
Federal Bureau of Prisons' decision to house him at the
Adams County Correctional Center (“ACCC”), and
the Bureau's refusal to transfer him to a facility where
he can participate in a drug abuse program and a residential
reentry center because of a U.S. Immigration and Customs
Enforcement (“ICE”) detainer. (docket entry 1).
Despite never exhausting his administrative remedies with the
BOP (docket entry 11-2), the petitioner argues that it would
be futile to do so because of the ICE detainer. (docket entry
Petitioner's failure to exhaust all administrative
remedies as required by law.
a federal inmate can seek habeas relief pursuant to 28 U.S.C.
§ 2241, he must exhaust his administrative remedies
through the BOP. Rourke v. R.G. Thompson, 11 F.3d
47, 49 (5th Cir. 1993); Fuller v. Rich,
11 F.3d 61, 62 (5th Cir. 1994). Rosalind
Ellington, an Administrative Remedy Specialist in the Central
office for the BOP, states that the Adams County Correctional
Center (“ACCC”) has a multi-step administrative
process for resolving prisoner complaints. (docket entry
11-2). First, an inmate must submit a grievance to the
contracting authority, using the local grievance procedures
at ACCC. If the inmate is unsatisfied with the response, he
may then appeal to the BOP's Privatization Management
Branch, using the Administrative Remedy Form BP-230. Finally,
if the inmate is still unsatisfied with the response of the
Privatization Management Branch, then he may take a final
appeal to the BOP's Office of General Counsel, using the
Administrative Remedy Form BP-231.
states that the petitioner “has never filed any
administrative remedies with the BOP.” (docket entry
11-2). However, the petitioner argues that he exhausted his
administrative remedies by writing letters to the Federal
Bureau of Prisons Designation Center, citing correspondence
he had with the Warden of ACCC. (docket entry 14).
exhaustion of administrative remedies is necessary, ”
and is not satisfied by “filing an untimely or
otherwise procedurally defective grievance or appeal.”
Woodford v. Ngo, 548 U.S. 81, 83-84 (2006); See
also Herrera-Villatoro v. Driver, 269 Fed. App'x.
372 (5th Cir. 2008). The petitioner, Delagado, did
not comply with the BOP's administrative procedural
rules. “Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules
because no adjudicative system can function effectively
without imposing some orderly structure on the course of its
proceedings.” Woodford, 548 U.S. at 90-91;
See also Metrejean v. Upton, 2012 WL 3288678, at *3
(E.D. Tex. Mar. 27, 2012)(“Administrative remedies must
be fully exhausted in a procedurally correct manner.”);
Glaude v. Longley, 2012 WL 5335296, at *2 (S.D.Miss.
Oct. 1, 2012)(“an inmate cannot satisfy the exhaustion
requirement by filing an untimely or otherwise procedurally
defective administrative grievance or appeal”).
stated in Magistrate Judge Parker's Report and
Recommendation, “even if the petitioner's
correspondence with the Warden of ACC were considered a
grievance, [he] did not file an appeal with the BOP's
Privatization Management Branch, nor did he file an appeal
with the BOP's Office of General Counsel.” Thus,
the petitioner has failed to exhaust his available
administrative remedies as required by law.
Petitioner's Failure to Demonstrate Extraordinary
Circumstances for His Failure to Exhaust All
exhaustion requirement is not absolute; there are exceptions,
but these exceptions only apply in “extraordinary
circumstances.” Broderick v. Chapman, 364 Fed.
App'x 111, 112 (5thCir. 2010).
“Exceptions to the exhaustion requirement are
appropriate where the available administrative remedies
either are unavailable or wholly inappropriate to the relief
sought, or where the attempt to exhaust such remedies would
itself be a patently futile course of action.”
Fuller, 11 F.3d at 62 (quoting Hessbrook v.
Lennon, 777 F.2d 999, 1003 (5th Cir. 1985)).
The petitioner bears the burden of demonstrating the futility
of administrative review when seeking waiver of the
exhaustion requirement. Id.
petitioner argues that further requests for administrative
relief would have been futile. (docket entry 14). Magistrate
Judge Parker opines that this assertion is conclusory and
does not meet the burden of demonstrating that administrative
review would be patently futile. See Cole v. Upton,
2012 WL 928312, at *3 (E.D. Tex. Feb. 22, 2012); Brown v.
Young, 2009 WL 666945 at *3 (W.D. La. Feb. 3, 2009).
Until the petitioner actually goes through the procedurally
correct process for administrative remedies, the Court does
not know what the BOP will do with the petitioner's
claim. The BOP should have an opportunity to consider the
petitioner's claim, and consider possible relief, prior
to petitioner's pursuit of his claim in this Court.
See Buckley v. Pearsons, 2011 WL 3022539, at *1-2
(S.D.Miss. May 25, 2011); Champkungsing v. United
States, 2010 WL 3120044 (S.D.Miss. Aug. 4, 2010);
Braddy v. Fox, 2014 WL 3884251, at *2 (E.D. Tex.
Aug. 7, 2014). The Court should not intrude on the BOP's
internal administrative remedy process, as the
petitioner's assertion is insufficient to establish
“extraordinary circumstances.” See DCP Farms
v. Yeutter, 957 F.2d 1189 (5th Cir. 1992).
Report and Recommendation, Magistrate Judge Parker finds that
the Petition for Writ of habeas Corpus (docket entry
1) should be denied, and that this action should be
dismissed without prejudice for the petitioner's failure
to exhaust administrative remedies as required by law or
demonstrate extraordinary circumstances which would
constitute an exception to the exhaustion requirement.
THE COURT HEREBY ADOPTS the Report and Recommendation of
Magistrate Judge Parker as the findings and conclusions of
this Court and dismisses this matter without prejudice.
judgment shall be entered in accordance with Rule 58 of the