United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 filed by Petitioner,
Bernard Adjei ("Adjei"), a Federal Bureau of
Prisons ("BOP") inmate, incarcerated in the
Schuylkill Federal Correctional Institution, Minersville,
Pennsylvania. (Doc. 1). For the reasons set forth below, the
petition will be dismissed without prejudice, for
Petitioner's failure to exhaust administrative remedies.
Adjei, has a projected release date of August 10, 2021, via
good conduct time release. (Doc. 6-2, Sentence Monitoring
15, 2019, Petitioner filed the instant petition for writ of
habeas corpus, in which he alleges that the BOP erred in its
decision that his previous robbery offense precludes him from
receiving a sentence reduction of up to twelve months after
completing the Residential Drug Abuse Program (RDAP). (Doc.
1). As relief, Adjei requests that the BOP's decision be
overturned so that he will be eligible for a sentence
reduction upon successful completion of RDAP. Id.
search of the BOP's administrative remedy database
reveals that during his current sentence in BOP custody,
Petitioner has filed two administrative remedies, and while
both concerned entry into the RDAP, neither Concerned
Petitioner's request for a sentence reduction and neither
remedy was exhausted. (See Doc. 6-2 at 9,
Administrative Remedy Generalized Retrieval).
3, 2019, Adjei filed Administrative Remedy Number 980000-R1,
requesting to participate in the RDAP program, Id.
This remedy was rejected on June 6, 2019 for filing at the
wrong level. Id. On July 3, 2019, Adjei filed
Administrative Remedy Number 983155-F1 also concerning RDAP.
Id. This remedy was rejected on that same date
because Adjei did not first attempt informal resolution by
submitting his request through his counselor or other
authorized person prior to filing a formal administrative
remedy request. Id. Neither of these remedies
pertained to a request for sentence reduction. Id.
Adjei did not appeal either response or further pursue either
of these administrative remedies. Id. Adjei has not
filed any other remedies while in BOP custody, regarding any
subject matter. Id.
the absence of a statutory exhaustion requirement attached to
§ 2241, courts have consistently required a petitioner
to exhaust administrative remedies prior to bringing a habeas
claim under § 2241. Callwood v. Enos, 230 F.3d
627, 634 (3d Cir. 2000); Moscato v. Federal Bureau of
Prisons, 98 F.3d 757, 760 (3d Cir. 1996). Exhaustion is
required "for three reasons: (1) allowing the
appropriate agency to develop a factual record and apply its
expertise facilitates judicial review; (2) permitting
agencies to grant the relief requested conserves judicial
resources; and (3) providing agencies the opportunity to
correct their own errors fosters administrative
autonomy." Moscato, 98 F.3d at 761-62 (citing
Bradshaw v. Carlson, 682 F.2d 1050, 1052
(3rd Cir.1981) Nevertheless exhaustion of
administrative remedies is not required where exhaustion
would not promote these goals. See, e.g., Gambino v.
Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not
required where petitioner demonstrates futility); Lyons
v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988)
(exhaustion may be excused where it "would be futile, if
the actions of the agency clearly and unambiguously violate
statutory or constitutional rights, or if the administrative
procedure is clearly shown to be inadequate to prevent
irreparable harm"); Carling v. Peters, No.
00-2958, 2000 WL 1022959, at *2 (E. D. Pa. July 10, 2000)
(exhaustion not required where delay would subject petitioner
to "irreparable injury"). The exhaustion
requirement has been applied to claims regarding a
prisoner's eligibility to receive a sentence reduction
under the RDAP in 18 U.S.C. § 3621. See Campbell v.
Yost, No. 07-0168, 2008 WL 2316556, at *2 (W.D. Pa. June
4, 2008) (citing Beckley v. Miner, 125
Fed.Appx. 385, 389 (3d Cir. 2005); Rosenfeld v.
Samuels, No. 07-2907, 2008 WL 819630, at*1(D.N.J. Mar.
general, the BOP's Administrative Remedy Program is a
multi-tier process that is available to inmates confined in
institutions operated by the BOP for "review of an issue
which relates to any aspect of their confinement." 28
C.F.R. §§ 542.10-542.19. The inmate first must
attempt to informally resolve his issue with the
institutional staff. 28 C.F.R. § 542.13(a). If informal
resolution fails or is waived, the inmate then may submit a
formal Administrative Remedy Request on the appropriate BP-9
form within twenty calendar days following the date on which
the basis for the request occurred. 28 C.F.R. §
542.14(a). If the inmate is not satisfied with the
warden's response to his Administrative Remedy Request,
he may Submit an appeal on the BP-10 form to the appropriate
regional Director within twenty calendar days of the date the
warden signed the response. 28 C.F.R. § 542.15(a). If
dissatisfied with the Regional Director's response, a
Central Office Appeal may then be filed with the BOP's
Office of General Counsel. 28 C.F.R. § 542.15(a). This
is the inmate's final available administrative appeal.
matter sub judice, Adjei admits that he did not exhaust his
administrative remedies, arguing that he "will have
completed RDAP before the appellate process is
complete." (Doc. 1 at 8).
Suarez-Sanchez v. Lane, No. 4:18-CV-1431, 2019 WL
1645231, slip op at *1, (M.D. Pa. Mar 5, 2019) (Rep.
& Recom.), the petitioner was dissatisfied with the
BOP's decision that, due to a previous conviction of a
violent offense, he was ineligible for a sentence reduction
after he completed RDAP. Just as in the instant case, the
petitioner failed to properly exhaust his administrative
remedies claiming it to be a waste of time. Id. at
*2. "Courts in the Middle District of Pennsylvania have
consistently held that 'exhaustion of administrative
remedies is not rendered futile simply because a prisoner
anticipates he will be unsuccessful in his administrative
appeals...'" Id. at *3 (citing Ross v.
Martinez, No. 4:09-CV-1770, 2009 WL 4573686, slip
op at *3 (M.D. Pa. Dec 1, 2009) (quoting Malvestuto
v. Martinez, No. 1:09-CV-1339, 2009 WL 2876883, slip op
at *3 (M.D. Pa. Sept 1, 2009) (copies attached).
Judge Carlson stated:
Simply put, with respect to his complaints in this petition,
the petitioner is an inmate who has failed to fully exhaust
his remedies and now fails to provide cause and prejudice
that could excuse this earlier procedural default. ...