United States District Court, D. Oregon
ORDER TO DISMISS
A. Hernandez, United States District Judge.
formerly a federal prisoner within the custody of the Bureau
of Prisons ("BOP"), brings this habeas corpus case
pursuant to 28 U.S.C. § 2241 challenging two
administrative sanctions that extended his release date by 7
4 days. On March 14, 2019, the Government filed a Motion to
Dismiss the Petition as moot on the basis that the BOP
released Petitioner from custody on February 1, 2019.
Petitioner counters that the case is not moot, moves for a
stay to allow him to exhaust his ongoing administrative
remedies, and represents that he will brief the merits of his
claims after the stay is lifted.
March 18, 2018, the BOP placed Petitioner at the Northwest
Regional Reentry Center (“NWRRC") . While housed
at that location, Petitioner obtained private health
insurance and, ultimately, a prescription for Suboxone.
Pre-release inmates housed in residential reentry centers are
not permitted to take Suboxone, and Petitioner ultimately
failed two successive urinalysis tests. As a result, staff
informed Petitioner of these adverse results, issued two
incident reports, and removed him from the NWRRC on October
October 24, 2018, Petitioner attempted to initiate
administrative review proceedings with the assistance of
counsel as to the first of his incident reports, but the BOP
rejected Petitioner's administrative BP-9 review request
on the basis that detainees must submit such forms
themselves. Accordingly, on November 2, 2018, Petitioner
cured this deficiency and filed his BP-9 requests for
administrative review as to both incidents.
Petitioner's BP-9s were pending, the BOP released
Petitioner from custody on February 1, 2019. On approximately
March 4, 2019, the BOP informed him that it had rejected both
of his BP-9 requests for administrative relief. Petitioner
had 30 days in which to file his BP-l0s. At the time he filed
his Motion to Stay in this case on March 19, 2019, he had not
yet filed his BP-l0s.
brings this federal habeas corpus case pursuant to 28 U.S.C.
§ 2241 wherein he argues that the administrative
sanctions were improper, thus the BOP held him in custody 74
days longer than it should have. He claims that this
additional time in custody had the corresponding effect of
initiating his supervised release 74 days after it should
Government moves to dismiss this case for mootness based upon
Petitioner's February 1 release. While the BOP released
Petitioner from custody more than two months ago, his period
of supervised release continues. If Petitioner is correct
that he was improperly sanctioned and held 74 days beyond his
lawful term of imprisonment such that his term of supervised
release should be reduced by 74 days, this case would not be
moot. See Mujahid v. Daniels, 413 F.3d 991
(9th Cir. 2005); Gunderson v. Hood, 268
F.3d 1149, 1153 (9th Cir. 2001); United States
v. Verdin, 243 F.3d 1174, 1178 (9th Cir.
2001). Accordingly, the Court declines to dismiss the
Petition for mootness.
problematic for Petitioner, however, is his lack of
administrative exhaustion. "In order to seek habeas
relief under section 2241 ... a petitioner must
first, 'as a prudential matter,'
exhaust his or her available administrative remedies."
Singh v. Napolitano, 649 F.3d 899, 900
(9th Cir. 2010) (per curiam) (bold added).
Requiring a petitioner to exhaust his administrative remedies
aids "judicial review by allowing the appropriate
development of a factual record in an expert forum."
Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983).
Use of available administrative remedies conserves "the
court's time because of the possibility that the relief
applied for may be granted at the administrative level."
Id. Moreover, it allows "the administrative
agency an opportunity to correct errors occurring in the
course of administrative proceedings." Id; United
Farm Workers v. Arizona Agric. Employ. Relations Bd.,
669 F.2d 1249, 1253 (9th Cir. 1982).
of administrative remedies is not required where the remedies
are inadequate, inefficacious, or futile, where pursuit of
them would irreparably injure the plaintiff, or where the
administrative proceedings themselves are void."
United Farm Workers, 669 F.2d at 1253 (citation
omitted); see also Fraley v. United States Bureau of
Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (exhaustion
waived where request for administrative remedy initially
denied by Community Corrections Office based upon official
B.O.P. policy and further appeal would almost certainly have
been denied based upon the same policy). Courts should not,
however, relax the exhaustion requirement where it
"would encourage the deliberate bypass of the
administrative scheme." Laing v. Ashcroft, 370
F.3d 994, 1000 (9th Cir. 2004) .
maintains an administrative review process for prisoners that
begins with an informal grievance, or BP-8. If an inmate does
not achieve satisfactory results from that informal process,
he may file a formal complaint with the warden using a BP-9
form. If the BP-9 is unsuccessful, the prisoner can file a
Regional Administrative Remedy Appeal (BP-10). Finally, if
the BP-10 does not afford Petitioner relief he finds to be
satisfactory, he can file a Central Office Administrative
Remedy Appeal (BP-11) . If the BOP denies relief on the
BP-11, the inmate has exhausted his administrative remedies
and may file for judicial relief.
case, Petitioner filed for habeas corpus relief seeking
expedited consideration on October 30, 2018. This was three
days before he filed his conforming BP-9
applications with the BOP. Even at the time he filed his
pending Motion to Stay on March 19, 2019, he had not yet
filed his BP-10. Petitioner acknowledges that he did not
complete his administrative remedies prior to filing this
case, but asks the Court to stay this action pending the
resolution of all levels of his administrative appeals.
district courts are permitted to stay a habeas petition
containing unexhausted claims, such a procedure is only
appropriate where a petitioner has "good cause" for
his failure to satisfy the exhaustion process. Rhines v.
Weber,544 U.S. 269, 278 (2005) . Petitioner argues that
he has good cause to warrant a stay because he is trying to
exhaust his claims during the pendency of this case, ...