(HC) Davis v. Lejeune, No. 1:2021cv01783 - Document 5 (E.D. Cal. 2021)

Court Description: ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus signed by Magistrate Judge Jennifer L. Thurston on 12/202021. Referred to Judge Unassigned; Objections to F&R due within Twenty-One Days. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY DAVIS, Petitioner, 12 v. 13 14 MICHEL LEJEUNE, Respondent. 15 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:21-cv-01783-JLT (HC) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE] On December 17, 2021, Petitioner filed the instant petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2241. (Doc. 1.) Petitioner is in the custody of the Bureau of Prisons at FCI Mendota. 20 Petitioner challenges his 17-month detainment in the special housing unit. The petition is unexhausted. 21 Therefore, the Court will recommend the petition be DISMISSED without prejudice. 22 23 24 DISCUSSION I. Exhaustion Before filing a petition for writ of habeas corpus, a federal prisoner challenging any 25 circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. Roberts, 804 26 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984); 27 Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that federal prisoners exhaust 28 administrative remedies before filing a habeas corpus petition was judicially created; it is not a 1 1 statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Thus, “because exhaustion 2 is not required by statute, it is not jurisdictional.” Id. If Petitioner has not properly exhausted his 3 claims, the district court, in its discretion, may either “excuse the faulty exhaustion and reach the 4 merits or require the petitioner to exhaust his administrative remedies before proceeding in court.” 5 The first step in seeking administrative remedies is a request for informal resolution. 28 C.F.R. 6 § 542.13. When informal resolution procedures fail to achieve sufficient results, the BOP makes 7 available to inmates a formal three-level administrative remedy process: (1) a Request for 8 Administrative Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a 9 Regional Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the geographic 10 region in which the inmate’s institution is located; and (3) a Central Office Administrative Remedy 11 Appeal (“BP-11”) filed with the Office of General Counsel. 28 C.F.R. § 542.10 et seq. 12 According to the petition, there was an incident report written on May 6, 2020 related to the 13 administrative detention. (See Doc. 1 at 8.) Petitioner does not provide any additional information 14 regarding administrative remedies he has sought, including a BP-9 “Request for Administrative 15 Remedy,” a BP-10 “Regional Administrative Remedy Appeal,” or a BP-11 “Central Office 16 Administrative Remedy Appeal.” Therefore, the claims have not been administratively exhausted. 17 Although the exhaustion requirement is subject to waiver in § 2241 cases “it is not lightly to be 18 disregarded.” Murillo v. Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (citation omitted). A “key 19 consideration” in exercising such discretion is whether “relaxation of the requirement would 20 encourage the deliberate bypass of the administrative scheme[.]” Laing v. Ashcroft, 370 F.3d 994, 21 1000 (9th Cir. 2004) (internal quotation marks omitted). In this case, it is clear that Petitioner has 22 deliberately bypassed the administrative review process. Such action should not be condoned. The 23 Court finds the petition should be dismissed for lack of exhaustion. 24 25 26 27 28 RECOMMENDATION Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be DISMISSED without prejudice for failure to exhaust administrative remedies. These Findings and Recommendations are submitted to the United States District Court Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 2 1 Local Rules of Practice for the United States District Court, Eastern District of California. Within 2 twenty-one days after being served with a copy, Petitioner may file written objections with the Court. 3 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 4 Recommendations.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 5 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive 6 the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 8 9 10 IT IS SO ORDERED. Dated: December 20, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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