(HC) Clark v. Rios, Jr., No. 1:2009cv00817 - Document 16 (E.D. Cal. 2010)
Court Description: ORDER GRANTING Respondent's Motion to Dismiss 13 and Dismissing the Action without Prejudice; ORDER Directing the Clerk to enter Judgment and Close the Case, signed by Magistrate Judge Sheila K. Oberto on 05/10/2010. CASE CLOSED (Martin, S)
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(HC) Clark v. Rios, Jr. Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 TYRONE M. CLARK, 11 Petitioner, 12 v. 13 H. A. RIOS, JR., Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—00817-SKO-HC ORDER GRANTING RESPONDENT’S MOTION TO DISMISS (DOC. 13) AND DISMISSING THE ACTION WITHOUT PREJUDICE ORDER DIRECTING THE CLERK TO ENTER JUDGMENT AND CLOSE THE CASE 16 17 Petitioner is a federal prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 19 Pursuant to the parties’ consent,1 the matter has been referred 20 to the Magistrate Judge for all proceedings, including the entry 21 of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. 22 P. 73(b), and Local Rule 73-301. 23 Respondent’s motion to dismiss the action. Pending before the Court is 24 I. Procedural Summary 25 On May 8, 2009, Petitioner filed a petition for writ of 26 27 28 1 Petitioner filed a signed, written consent form on June 12, 2009; Respondent Warden Hector A. Rios filed a written consent form signed by his authorized representative on October 13, 2009. 1 Dockets.Justia.com 1 habeas corpus in which he challenged the execution of his 2 sentence pursuant to 28 U.S.C. § 2241. 3 alleged that the Bureau of Prisons (BOP) denied his request of 4 February 26, 2009, for a transfer to a residential reentry center 5 (RRC) because Petitioner was not yet serving the last six (6) 6 months, or last ten (10) percent, of his sentence. 7 alleged that the denial was improper because it conflicted with 8 18 U.S.C. § 3621, which permitted transfer at any point in a 9 prisoner’s sentence. (Pet. p. 1.)2 Petitioner Petitioner He also alleged that it was invalid under 10 standards of review set forth in the Administrative Procedure Act 11 (APA) that require consideration of the relevant factors set 12 forth in § 3621(b) in the exercise of discretion to determine 13 placement of a prisoner. 14 (Pet. pp. 1-5.)3 Petitioner relies on the decision in Rodriguez v. Smith, 541 15 F.3d 1180 (9th Cir. 2008), in which the court determined that 16 regulations of the BOP (28 C.F.R. §§ 570.20 and 570.21) that 17 purported categorically to exclude consideration of prisoners for 18 placement in RRC’s for more than the last six (6) months of their 19 sentences were contrary to the Congressional intent expressed in 20 18 U.S.C. § 3621(b), which provided for individualized 21 consideration of transfer and exercise of administrative 22 23 24 25 26 27 28 2 References to pages of filed documents are to the page numbers that are automatically assigned by the Court’s electronic filing system and appear in the upper right-hand corner of the pages of filed documents. 3 Petitioner alleged that the BOP’s action conflicted with the Second Chance Act and then sought consideration of a transfer “without reference to the Second Chance Act.” (Pet pp. 4-5.) Because these references are not sufficiently specific to identify any precise statutory provision and are essentially inconsistent, the Court agrees with Respondent (mot. pp. 2-3, n. 1) that the petition will be liberally construed to be seeking an order compelling the BOP to consider Petitioner for a routine transfer to a RRC with consideration of the factors set forth in 18 U.S.C. § 3621. 2 1 discretion based on specified factors. 2 affirmed the district court’s grant of a writ of habeas corpus 3 ordering the BOP promptly to consider the prisoner for transfer 4 to an RRC with reference to the factors specified in § 3621(b). 5 541 F.3d at 1189. 6 Petitioner here. The Court in Rodriguez This is essentially the relief sought by (Pet p. 5.) 7 In response to the petition, Respondent served by mail on 8 Petitioner and filed on December 15, 2009, a motion to dismiss 9 the action. Petitioner did not file an opposition to the motion. 10 Respondent seeks dismissal of the petition for lack of standing 11 and absence of a liberty interest; mootness; inapplicability of 12 the APA; and Petitioner’s failure to exhaust administrative 13 remedies. 14 II. Factual Background 15 Petitioner is serving a sentence of one hundred and ten 16 (110) months imposed in the Western District of Michigan on 17 February 22, 2005, for being a felon in possession of a firearm 18 (18 U.S.C. § 922(g)), and twelve months for possession of cocaine 19 base (21 U.S.C. § 844). His projected release date is July 13, 20 2012. (Decl. Orozco, ¶ 3, doc. 13-2, pp. 26-29.) 21 Petitioner was incarcerated in the United States 22 Penitentiary in Atwater, California (USP Atwater) from February 23 7, 2007, through May 21, 2009. 24 Federal Correctional Institution at Herlong (FCI Herlong), a 25 medium security facility, where he is presently designated. 26 (Decl. and cert. of records by Jesse Gonzalez, Executive 27 Assistant/Litigation Coordinator, Atwater, California, doc. 13-2, 28 pp. 2-3.) He was then transferred to the 3 1 With respect to Petitioner’s claim concerning the failure of 2 the BOP to afford him the consideration mandated by § 3621, 3 Petitioner filed a request for administrative remedy on or about 4 March 17, 2009, concerning a transfer to a RRC for successful 5 reintegration. 6 11.) 7 factors identified in 18 U.S.C. § 3621(b) would be considered at 8 a later date at a pre-release review, and denying the request. 9 (Id. p. 12.) (Gonzalez decl. ¶ 4, att. 1, doc. 13-2, pp. 10- The warden responded on April 1, 2009, explaining that the Petitioner sought review by the western regional 10 director, who construed Petitioner’s request as one seeking a 11 routine transfer to a RRC (as distinct from a pre-release 12 transfer) and remanded the matter to the warden to address the 13 request. 14 dissatisfied with the response, he could appeal to the office of 15 the general counsel at a specified address within thirty (30) 16 calendar days. (Id. p. 18.) 17 regional director’s decision to remand the matter to the warden 18 to address the request as one for a routine transfer. 19 Gonzalez, ¶ 4.) 20 (Id. pp. 13-18.) Petitioner was advised that if he was Petitioner did not appeal the (Decl. On June 1, 2009, the warden reconsidered Petitioner’s 21 request for a routine transfer to a RRC. 22 the requested relief. 23 compelling re-entry needs, although Petitioner had prepared for 24 release financially, had completed the release preparation 25 program, had maintained clear institutional conduct since May 26 2008, and had been transferred to a medium security institution. 27 Petitioner was again advised of his right to appeal that decision 28 and did not appeal. The warden again denied The warden found no extraordinary or (Id.; doc. 13-2 p. 19.) 4 Although Petitioner 1 was transferred to FCI Herlong on May 21, 2009, he remained 2 incarcerated in facilities with the western region of the BOP, 3 and thus the pertinent database would have reflected all 4 administrative grievances filed by Petitioner while incarcerated. 5 (Id. at ¶ 5.) 6 pertinent database revealed that Petitioner had not filed any 7 requests for transfer since arriving at FCI Herlong. 8 Orozco, ¶ 5.) 9 The case manager at FCI Herlong stated that the (Decl. In addition, the pertinent records contain no indication 10 that Plaintiff requested a transfer at the team meeting held on 11 February 5, 2009, at USP Atwater. 12 Subsequently, BOP staff determined that Plaintiff’s security 13 level could be changed from high to medium, and on April 1, 2009, 14 the institution itself requested a transfer for Plaintiff, 15 resulting in his transfer beginning May 28, 2009. 16 2009, a program review of Petitioner’s case was held, but 17 Petitioner did not request a transfer at that time despite the 18 discussion of later evaluation for RRC placement. (Decl. Orozco, ¶ 4.) (Id.) In June (Id. ¶ 5.) 19 III. Motion to Dismiss 20 Title 28 U.S.C. § 2241 provides that writs of habeas corpus 21 may be granted by a district court within its jurisdiction only 22 to a prisoner whose custody is within enumerated categories, 23 including but not limited to custody under the authority of the 24 United States or custody in violation of the constitution, laws, 25 or treaties of the United States. 26 (3). 27 28 28 U.S.C. § 2241(a), (c)(1), A district court must award a writ of habeas corpus or issue an order to show cause why it should not be granted unless it 5 1 appears from the application that the applicant is not entitled 2 thereto. 28 U.S.C. § 2243. 3 2254 Cases (Rule 4) is applicable to proceedings brought pursuant 4 to § 2241. 5 Rule 4 permits the filing of “an answer, motion, or other 6 response,” and thus authorizes the filing of a motion in lieu of 7 an answer in response to a petition. 8 1976 Adoption and 2004 Amendments. 9 flexibility and discretion initially to forego an answer in the Rule 4 of the Rules Governing Section Rule 1(b) of the Rules Governing Section 2254 Cases. Advisory Committee Notes, This gives the Court the 10 interest of screening out frivolous applications and eliminating 11 the burden that would be placed on a respondent by ordering an 12 unnecessary answer. 13 Rule 4 confers upon the Court broad discretion to take “other 14 action the judge may order,” including authorizing a respondent 15 to make a motion to dismiss based upon information furnished by 16 respondent, which may show that a petitioner’s claims suffer a 17 procedural or jurisdictional infirmity, such as res judicata, 18 failure to exhaust state remedies, or absence of custody. 19 4, Advisory Committee Notes, 1976 Adoption. 20 Advisory Committee Notes, 1976 Adoption. Rule The Supreme Court has characterized as erroneous the view 21 that a Rule 12(b)(6) motion is appropriate in a habeas corpus 22 proceeding. 23 434 U.S. 257, 269 n. 14 (1978). 24 language of Rule 4, it has been held in this circuit that motions 25 to dismiss are appropriate in cases that proceed pursuant to 28 26 U.S.C. § 2254 and present various procedural issues. 27 v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (a motion to dismiss 28 for failure to raise any issue of federal law, which was based on See, Browder v. Director, Ill. Dept. of Corrections, However, in light of the broad 6 O’Bremski 1 the insufficiency of the facts as alleged in the petition to 2 justify relief as a matter of law, was evaluated under Rule 4); 3 White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (procedural 4 default in state court was appropriately the subject of a 5 motion); Hillery v. Pulley, 533 F.Supp. 1189, 1194 n. 12 6 (E.D.Cal. 1982) (after the trial court had determined that 7 summary dismissal was unwarranted, a motion to dismiss for 8 failure to exhaust state remedies was appropriately considered 9 after receipt of evidence pursuant to Rule 7(a) to clarify 10 whether or not the possible defect, not apparent on the face of 11 the petition, might preclude a hearing on the merits). 12 Here, the Respondent’s filing of the motion to dismiss, and 13 the Court’s consideration thereof, are appropriate. 14 motion to dismiss is based on lack of subject matter 15 jurisdiction, mootness, failure to exhaust administrative 16 remedies, and lack of standing. 17 limited jurisdiction with a continuing duty to determine its own 18 subject matter jurisdiction and to dismiss an action where it 19 appears that the Court lacks jurisdiction. 20 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n. 3 (9th Cir. 1982) 21 (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); 22 Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). 23 Although Petitioner proceeds pursuant to § 2241, Respondent’s 24 motion is similar in procedural posture to a motion to dismiss 25 for failure to exhaust state remedies or for state procedural 26 default in a proceeding undertaken pursuant to § 2254. The motion 27 before the Court is unopposed; the facts alleged in the petition 28 and reflected in the declarations supporting Respondent’s motion Respondent’s A federal court is a court of 7 Fed. R. Civ. P. 1 present no material factual disputes. 2 not yet filed a formal answer. Finally, Respondent has 3 The Court therefore exercises its discretion to review 4 Respondent’s motion pursuant to its authority under Rule 4. 5 IV. Subject Matter Jurisdiction 6 Respondent argues that Petitioner seeks nothing more than to 7 challenge the BOP’s exercise of discretion in identifying an 8 appropriate place of confinement for the Petitioner to serve his 9 sentence. Since the petition addresses nothing more than the 10 transfer of the site of Petitioner’s service of his sentence, the 11 petition involves only conditions of confinement and does not 12 implicate a liberty interest, the fact or duration of his 13 confinement, or a violation of the Constitution or laws of the 14 United States. 15 without subject matter jurisdiction over the controversy. 16 Thus, Respondent contends that this Court is Relief by way of a writ of habeas corpus extends to a 17 prisoner in custody under the authority of the United States who 18 shows that the custody violates the Constitution, laws, or 19 treaties of the United States. 20 a federal prisoner who challenges the validity or 21 constitutionality of his conviction must file a petition for writ 22 of habeas corpus pursuant to 28 U.S.C. § 2255, a federal prisoner 23 challenging the manner, location, or conditions of execution of a 24 sentence must bring a petition for writ of habeas corpus under 28 25 U.S.C. § 2241. 26 Cir. 2000). 28 U.S.C. § 2241(c)(3). Although Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th 27 In arguing that Petitioner is challenging not the fact or 28 duration of his confinement, but rather only the conditions of 8 1 his confinement, Respondent relies in part on Rodriguez v. Smith, 2 541 F.3d 1180, 1184-1186 (9th Cir. 2008), in which the court 3 characterized a RRC as a place of incarceration. 4 Respondent, Petitioner’s request for relief concerns nothing more 5 than a transfer of the place of confinement as distinct from any 6 phenomenon affecting the fact or duration of the confinement. 7 However, in Rodriguez v. Smith, the court affirmed the district 8 court’s grant of a writ of habeas corpus directing the BOP to 9 afford the petitioner individualized consideration as provided Thus, contends 10 for by statute. 11 subject matter jurisdiction was not expressly raised in 12 Rodriguez, Respondent’s jurisdictional assertion is fundamentally 13 inconsistent with the court’s decision in that case. 14 541 F.3d at 1189. Although the question of Respondent’s view of jurisdiction is not required by the 15 wording of the governing statute. 16 provide that the writ of habeas corpus extends to a prisoner who 17 “is in custody under or by color of” the authority of the United 18 states as well as to a prisoner who “is in custody in violation 19 of the Constitution or laws or treaties of the United States.” 20 Unlike § 2255(a), which limits potential applicants to prisoners 21 “claiming the right to be released,” § 2241 does not contain any 22 such exclusions or limitations. 23 instant case challenges the manner of execution of Petitioner’s 24 sentence as being in violation of a specific federal statute and 25 thus comes within the express terms of § 2241. 26 Sections 2241(c)(1) and (3) Petitioner’s claim in the The Court in Preiser v. Rodriguez, 411 U.S. 475 (1973) noted 27 that habeas relief was appropriate for federal prisoners who 28 claimed that a federal judge’s action was contrary to federal 9 1 statute and resulted in unlawful confinement in the wrong 2 institution. 3 involving a federal judge’s sentencing of a federal prisoner to 4 time in a state custodial institution in violation of a federal 5 statute that prohibited a sentence to imprisonment in a state 6 penitentiary unless the term was to exceed a year; and Humphrey 7 v. Cady, 405 U.S. 504 (1972), involving a state prisoner’s 8 challenge, based on unlawful commitment procedures as well as the 9 conditions of his confinement, to his commitment to a sexual 411 U.S. at 475 (citing In re Bonner, 151 U.S. 242, 10 deviate facility for a potentially indefinite period of time). 11 The present case does not involve the functions of the sentencing 12 court, a possibility of immediate release, or any shortening of 13 the duration of confinement; thus it may not lie within the 14 “core” of habeas corpus. 15 Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003). 16 However, the scope of habeas corpus has not been See, Preiser, 411 U.S. at 487-88; 17 definitively limited to only the central, core function. 18 Preiser, 411 U.S. at 499 (declining to describe federal habeas 19 corpus categorically as unavailable to challenge conditions of 20 confinement, and citing Johnson v. Avery, 393 U.S. 483 (1969) 21 [habeas corpus available to control prison conditions that 22 restricted access to federal habeas corpus relief]). 23 See, Further, in addition to the obvious example of Rodriguez v. 24 Smith, the Court notes that decisions in other cases in this 25 circuit have extended the reach of § 2241 to matters related to 26 the manner of execution of sentence that were alleged to violate 27 federal statutory or Constitutional provisions but did not 28 involve a direct or immediate effect on the fact or duration of 10 1 confinement. 2 549 (9th Cir. 1998) (permitting a federal prisoner to challenge 3 by way of § 2241 the BOP’s policies concerning collection of 4 court-ordered fines alleged to violate not only federal statutes 5 entrusting supervision of fine collection to the federal courts 6 but also the separation of powers provided for in Article III of 7 the Constitution); United States v. Lemoine, 546 F.3d 1042, 1046 8 (9th Cir. 2008) (entertaining and resolving on a petition 9 pursuant to § 2241 a prisoner’s challenge to the BOP’s See, Montano-Figueroa v. Crabtree, 162 F.3d 548, 10 requirement that a federal prisoner pay restitution at a higher 11 rate than ordered at sentencing pursuant to a federal statute). 12 Respondent relies on cases involving state prisoners in 13 which it was held that a prisoner has no constitutionally 14 protected liberty interest or expectation in confinement in any 15 particular facility, such as Meachum v. Fano, 427 U.S. 215, 223 16 (1976) (absent a provision of state law to the contrary, a 17 transfer of a state prisoner from a medium to a maximum security 18 prison did not implicate or infringe a liberty interest within 19 the meaning of the due process clause but rather was entrusted to 20 the discretion of prison administrators); Montayne v. Haymes, 427 21 U.S. 236, 242 (1976) (absent a state law to the contrary, a state 22 prisoner had no right to remain at any particular facility that 23 was protected by the due process clause); Olim v. Wakinekona, 456 24 U.S. 1005 (1983) (interstate prison transfer did not deprive a 25 prisoner of any interest protected by the due process clause, and 26 state law did not create a constitutionally protected liberty 27 interest). 28 However, § 2241 and 2254 involve different sovereign 11 1 interests. 2 parameters of due process, but rather an express, affirmative, 3 and specific federal statute governing the execution of sentence. 4 The points asserted here by Petitioner on the merits have been 5 considered and determined by the appellate court of this circuit 6 and have been resolved in Petitioner’s favor in a proceeding 7 brought pursuant to § 2241. 8 9 Further, the present suit concerns not the vague Respondent points to cases from various district courts in California, including this Court, that come to differing results 10 with respect to the issue of subject matter jurisdiction 11 presented in this case. 12 straightforward. 13 the state of the authorities, and the uncertainty concerning the 14 scope of the habeas remedy in circumstances such as the present, 15 the Court concludes that Respondent’s view too narrowly defines 16 the range of cases subject to § 2241 and inflexibly treats two 17 categories of cases, namely, conditions suits and habeas actions 18 concerning the manner of execution of sentence, as necessarily 19 mutually exclusive phenomena. 20 Petitioner’s action is one to which habeas corpus may extend 21 because it concerns his custody under the authority of the United 22 States and an allegation that his custody is in violation of a 23 specific federal statute with respect to the execution of his 24 sentence. 25 (Mot. pp. 6-7.) The issue is not However, considering the statutes in question, The Court concludes that The Court thus concludes that it has subject matter 26 jurisdiction over the action, and Respondent’s motion to dismiss 27 for lack of subject matter jurisdiction will be denied. 28 /// 12 1 V. Personal Jurisdiction 2 Title 28 U.S.C. § 2241(a) provides that writs of habeas 3 corpus may be granted by the district courts “within their 4 respective jurisdictions.” 5 upon the prisoner, but upon the prisoner’s custodian. 6 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495 7 (1973). 8 under 28 U.S.C. § 2241 must file the petition in the judicial 9 district of the petitioner's custodian. A writ of habeas corpus operates not Braden v. A petitioner filing a petition for writ of habeas corpus Brown v. United States, 10 610 F.2d 672, 677 (9th Cir. 1990). 11 penitentiary where a prisoner is confined constitutes the 12 custodian who must be named in the petition, and the petition 13 must be filed in the district of confinement. 14 Padilla, 542 U.S. 426, 446-47 (2004). 15 custodian is in the territorial jurisdiction of the court at the 16 time the petition is filed; transfer of the petitioner thereafter 17 does not defeat personal jurisdiction that has once been properly 18 established. 19 overruled on other grounds in Braden v. 30th Judicial Circuit 20 Court of Kentucky, 410 U.S. at 193, citing Mitsuye Endo, 323 U.S. 21 283, 305 (1944); Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 22 1990). 23 The warden of the Id.; Rumsfeld v. It is sufficient if the Ahrens v. Clark, 335 U.S. 188, 193 (1948), Here, the declarations submitted by Respondent establish 24 that Petitioner was incarcerated within the district at the time 25 the petition was filed. Petitioner named Warden Hector A. Rios, 26 Jr., as the Respondent, and the evidence submitted by Respondent 27 reflects that H. A. Rios, Jr., was the warden at that time. (Doc. 28 13-2, pp. 12, 19.) 13 1 Accordingly, the Court concludes that it has jurisdiction 2 over the Respondent and that in considering the motion to dismiss 3 the petition, it acts within its jurisdiction within the meaning 4 of § 2241(a). 5 VI. Failure to Exhaust Administrative Remedies 6 Respondent argues that the petition should be dismissed 7 because Petitioner failed to exhaust his administrative remedies 8 before filing the petition. 9 Petitioner acknowledged the requirement of exhaustion of 10 administrative remedies (pet. pp. 5-6), but he did not allege 11 facts demonstrating that he exhausted his administrative remedies 12 before filing the petition. 13 should be excused where a petitioner might suffer irreparable 14 injury if required to exhaust, or where the administrative 15 remedies are ineffective or pursuit thereof futile. 16 argues that based on the BOP’s use of an invalidated policy, it 17 should be concluded that the remedy would have been futile or 18 ineffective. 19 Instead, he asserted that exhaustion Petitioner (Pet. pp. 5-7.) As a “prudential matter,” federal prisoners are generally 20 required to exhaust available administrative remedies before 21 bringing a habeas petition pursuant to 28 U.S.C. § 2241. 22 v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004) (quoting Castro- 23 Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)); Martinez v. 24 Roberts, 804 F.2d 570, 571 (9th Cir. 1986). The exhaustion 25 requirement applicable to petitions brought pursuant to § 2241 is 26 judicially created and is not a statutory requirement; thus, a 27 failure to exhaust does not deprive a court of jurisdiction over 28 the controversy. Huang Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 14 1 1990), overruled on other grounds, Reno v. Koray, 515 U.S. 50, 2 54-55 (1995). 3 her claims, a district court in its discretion may either excuse 4 the faulty exhaustion and reach the merits, or require the 5 petitioner to exhaust the administrative remedies before 6 proceeding in court. 7 Exhaustion may be excused if the administrative remedy is 8 inadequate or ineffective, or if attempting to exhaust would be 9 futile or would cause irreparable injury. If a petitioner has not properly exhausted his or Brown v. Rison, 895 F.2d 533, 535. Fraley v. United 10 States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993); United 11 Farm Workers of America v. Arizona Agr. Emp. Rel. Bd., 669 F.2d 12 1249, 1253 (9th Cir. 1982). 13 Factors weighing in favor of requiring exhaustion include 14 whether 1) agency expertise makes agency consideration necessary 15 to generate a proper record and reach a proper decision; 2) 16 relaxation of the requirement would encourage the deliberate 17 bypass of the administrative scheme; and 3) administrative review 18 is likely to allow the agency to correct its own mistakes and to 19 preclude the need for judicial review. 20 Ashcroft, 335 F.3d 874, 880-81 (9th Cir. 2003) (citing Montes v. 21 Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)). 22 Noriega-Lopez v. Here, Petitioner makes only a bare allegation of futility. 23 The record shows without contradiction that Petitioner began the 24 process of exhausting his remedies but then failed to continue 25 the process. 26 supports an inference that completing the attempt to obtain 27 relief would have been futile; if anything, the evidence of 28 reconsideration by the prison authorities and ultimate transfer None of the evidence provided by Respondent 15 1 warrants a contrary inference. 2 of his administrative remedy does not appear to have been 3 necessary. 4 encourage deliberate bypass of the administrative scheme and may 5 tend to increase the likelihood of unnecessary judicial review. 6 This case is thus factually unlike the cases cited by Petitioner, 7 including Elwood v. Jeter, 386 F.3d 842, 843 n.1 (8th Cir. 2004) 8 (the government waived exhaustion and confirmed that an attempt 9 to exhaust would have been futile); Drew v. Menifee, 2005 WL Further, Petitioner’s abandonment Thus, to relax the requirement in this instance would 10 525449 (S.D.N.Y. Mar. 4, 2005) (the government raised no issue of 11 exhaustion); Pinto v. Menifee, 2004 WL 3019760, *3 (S.D.N.Y. Dec. 12 29, 2004) (BOP exhaustion not required where a directive of the 13 Department of Justice rendered futile any attempt to exhaust an 14 administrative remedy before the BOP); and Rodriguez v. Smith, 15 541 F.3d 1180 (9th Cir. 2008) (the court did not address 16 exhaustion of administrative remedies). 17 Accordingly, the Court finds that Petitioner failed to 18 exhaust his administrative remedies and concludes that his 19 failure to exhaust is not excused in this instance. 20 to dismiss will therefore be granted.4 21 exhaust administrative remedies is properly treated as a curable 22 defect, it should generally result in a dismissal without 23 prejudice. Cf., City of Oakland, Cal. v. Hotels.com LP, 572 F.3d 24 958, 962 (9th Cir. 2009). 25 VII. Disposition 26 Accordingly, it is ORDERED that: The motion Because the failure to 27 4 28 In light of the disposition of this motion, the Court does not reach Respondent’s contentions concerning the APA, mootness of the petition, or Petitioner’s inability to demonstrate any injury in fact necessary for standing. 16 1 1) Respondent’s motion to dismiss the action is GRANTED; 2 2) The petition for writ of habeas corpus is DISMISSED 3 WITHOUT PREJUDICE; and 4 5 3) The Clerk is DIRECTED to enter judgment and close the case. 6 7 IT IS SO ORDERED. 8 Dated: ie14hj May 10, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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