Betancur v. Johns
| Decision Date | 26 October 2016 |
| Docket Number | CIVIL ACTION NO.: 5:15-cv-87 |
| Parties | OCTAVIO ALBERTO BETANCUR, Petitioner, v. WARDEN TRACY JOHNS, Respondent. |
| Court | U.S. District Court — Southern District of Georgia |
Petitioner Octavio Betancur ("Betancur"), who is currently incarcerated at D. Ray James Correctional Facility in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response, and Betancur filed a Reply. (Docs. 14, 17.) For the reasons which follow, I RECOMMEND the Court DISMISS Betancur's Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Betancur in forma pauperis status on appeal.
The Southern District of Texas convicted Betancur after he was found guilty of: engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848; conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(b)(1)(A). (Doc. 14-1, p. 12.) The Southern District of Texas originally sentenced Betancur to 360 months' imprisonment but later re-sentenced Betancur to 292 months' imprisonment after the applicable Sentencing Guidelines were lowered. (Id. & at p. 16.) Betancur has a projected release date of January 18, 2017. (Id. at p. 13.) On December 4, 1995, the Bureau of Immigration and Customs Enforcement lodged a detainer against Betancur. (Id. at p. 20.)
In his Petition, Betancur states he understands he is a deportable alien and is subject to deportation because he was convicted of an aggravated felony. (Doc. 1, p. 3.) However, Betancur alleges that he is entitled to a compassionate release from confinement at D. Ray James Correctional Facility ("D. Ray James"). However, he maintains that Respondent will not grant him such release since D. Ray James is a private prison which needs to make as much money as it can due to Betancur's continuing period of incarceration. (Id. at p. 4.) Betancur states Bureau of Prisons' policy regarding administrative remedies is biased and prejudicial against aliens, as this policy sets forth that the administrative remedy process is available only to those inmates in federal facilities. (Id. at p. 6.) Additionally, Betancur contends he and other aliens who have served more than ninety percent of their term of imprisonment with good conduct cannot participate in certain programs, whereas non-alien inmates who have only served sixty-five percent of their sentences can participate in these programs. (Id. at p. 7.)
Respondent states Betancur failed to exhaust his administrative remedies before filing his Petition. In the alternative, Respondent asserts Betancur's claims are without merit, and he does not set forth claims for relief pursuant to Section 2241. (Doc. 14, p. 3.) Respondent raises several reasons why Betancur's Petition should be dismissed, and the Court addresses these reasons in turn and as necessary.1
The Eleventh Circuit has held that a Section 2241 petitioner's failure to exhaust administrative remedies is not a jurisdictional defect. Santiago-Lugo v. Warden, 785 F.3d 467, 474 (11th Cir. 2015); see also Fleming v. Warden of FCI Tallahassee, 631 F. App'x 840, 842 (11th Cir. 2015) (). Nevertheless, the Eleventh Circuit has noted "that the exhaustion requirement is still a requirement and that courts cannot 'disregard a failure to exhaust . . . if the respondent properly asserts the defense.'" Id. (citing Santiago-Lugo, 785 F.3d at 475). Failure to exhaust administrative remedies is an affirmative defense, and inmates are not required to specially plead or demonstrate exhaustion in their complaint. Jones v. Bock, 549 U.S. 199, 216 (2007). Additionally, the Supreme Court recently Ross v. Blake, ___ U.S. ___, 2016 WL 3128839, at *5 (June 6, 2016).
The requirement that the exhaustion of remedies occur "first in an agency setting allows 'the agency [to] develop the necessary factual background upon which decisions should be based' and giv[es] 'the agency a chance to discover and correct its own errors.'" Green v. Sec'y for Dep't of Corr., 212 F. App'x 869, 871 (11th Cir. 2006) (). Furthermore, requiring exhaustion in the prison setting "eliminate[s] unwarranted federal-court interference with the administration of prisons" and allows "corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Woodford v. Ngo, 548 U.S. 81, 93 (2006).2
The Supreme Court has noted exhaustion must be "proper." Id. at 92. "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." Id. at 90-91. In other words, an institution's requirements define what is considered exhaustion. Jones, 549 U.S. at 218. It is not the role of the court to consider the adequacy or futility of the administrative remedies afforded to the inmate. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). The court's focus should be on what remedies are available and whether the inmate pursued these remedies prior to filing suit. Id.
Thus, under the law, prisoners must do more than simply initiate grievances; they must also appeal any denial of relief through all levels of review that comprise the agency's administrative grievance process. Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) () (quoting Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27, 2007) ().
"Even though a failure-to-exhaust defense is non-jurisdictional, it is like" a jurisdictional defense because such a determination "ordinarily does not deal with the merits" of a particular cause of action. Bryant, 530 F.3d at 1374 (internal punctuation and citation omitted). Further, a judge "may resolve factual questions" in instances where exhaustion of administrative remedies is a defense before the court. Id. In these instances, "it is proper for a judge to consider facts outside of the pleadings and to resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record." Id. at 1376.
In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit set forth a "two-step process" that lower courts must employ when examining the issue of exhaustion of administrative remedies.3 First, the court is to take the plaintiff's version of the facts regarding exhaustion as true. Id. at 1082. If, even under the plaintiff's version of the facts, the plaintiff has not exhausted, the complaint must be dismissed. Id. However, if the parties' conflicting facts leave a dispute as to whether plaintiff has exhausted, the court need not accept all of plaintiff's facts as true. Id. Rather, "the court then proceeds to make specific findings in order to resolve the disputed factual issues[.]" Id. "Once the court makes findings on the disputed issues of fact, it then decides whether under those findings the prisoner has exhausted his available administrative remedies." Id. at 1083. The Eleventh Circuit has held that a district court may consider materials outside of the pleadings and resolve factual disputes regarding exhaustion in conjunction with a Rule 12(b)(6) motion to dismiss so long as the factual disputes do not decide the merits of the case. See Bryant, 530 F.3d at 1376-77.
In his Petition, Betancur indicates that he attempted to pursue his administrative remedies. However, he contends that he could not proceed beyond the informal resolution stage because staff did not respond to his requests. (Doc. 17, p. 3.) Betancur states it is futile to try to pursue his administrative remedies, and the Court should waive the exhaustion requirement.4 (Id. at p. 4.) Thus, in an abundance of caution, the Court will proceed to the second Turner step and make specific factual findings pertinent to the exhaustion question.
Inmates at D. Ray James must exhaust administrative remedies, beginning their grievance process locally with the Warden by using the contractor's grievance procedures. (Doc. 14-1, p. 5.) This involves an attempt at informal resolution, which, if unsuccessful, is followed by a formal complaint via a Step 1 administrative remedy form within twenty (20) days of the informal resolution request. (Id. at p. 6.) An inmate may appeal the Step 1 administrative remedy to the Warden via a Step 2 administrative remedy form within five business days after the Step 1 response is returned. (Id. & at p. 57.) If the inmate is not satisfied with the resolution of the formal complaint, the inmate may appeal to the BOP's Administrator of the Privatization Management Branch, so long as the...
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