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Malzahn v. Nicklen

United States District Court, W.D. Texas, El Paso Division

May 14, 2018

DEAN FREDRICK MALZAHN, Reg. No. 47223-298, Petitioner,
v.
S. NICKLIN, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          KATHLEEN CARDONE UNITED STATES DISTRICT JUDGE

         Dean Fredrick Malzahn is a federal prisoner at the La Tuna Federal Correctional Institution in Anthony, Texas, with a projected release date of August 12, 2019.[1] He petitions the Court under 28 U.S.C. § 2241 to intervene in his behalf and order Respondent S. Nicklin to grant him “additional time in the halfway house for a fighting chance at being a productive member of society.” Pet'r's Pet. at 2, ECF No. 1. After reviewing Malzahn's petition, the Court finds it appears from its face that his claims are unexhausted and, in the alternative, that he is not entitled to § 2241 relief. Accordingly, the Court will dismiss Malzahn's petition. 28 U.S.C. § 2243 (2012).

         FILING FEE

         Malzahn failed to pay the $5.00 filing fee or submit an application to proceed in forma pauperis. The Court will, however, permit Malzahn to proceed without prepaying costs or fees because time is of the essence.

         APPLICABLE LAW

         A writ of habeas corpus under 28 U.S.C. § 2241 provides the proper procedural vehicle in which to raise an attack on “the manner in which a sentence is executed.” Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). However, “[h]abeas corpus relief is extraordinary and ‘is reserved for transgressions of constitutional rights and for a narrow range of injuries that . . . if condoned, result in a complete miscarriage of justice.'” Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). To prevail, a habeas corpus petitioner must show that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c) (2012). A court must order a respondent to show cause why a petition pursuant to § 2241 should not be granted “unless it appears from the [petition] that the [petitioner] or person detained is not entitled thereto.” 28 U.S.C. § 2243 (2012).

         ANALYSIS

         A. Exhaustion

         An initial issue a court must address when screening a § 2241 petition is whether the petitioner has exhausted his administrative remedies. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per curiam). A petitioner seeking habeas relief must first exhaust all administrative remedies which might provide appropriate relief. Id.; Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993).

         The Bureau of Prisons (“BOP”) has established a multi-tiered administrative remedy program “to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a). First, the inmate must present his particular complaint to the prison staff and attempt to resolve the issue in an informal manner. Id. § 542.13(a). If the complaint cannot be resolved informally, the inmate must file a formal written administrative remedy request on a BP-9 form with the prison warden. Id. § 542.14. The warden has twenty days to respond, which may be extended by an additional twenty days. Id. § 542.18. Any adverse decision by the warden must be appealed to the appropriate regional director by filing a BP-10 form. Id. § 542.15(a). The regional director has thirty days to issue a response, which may be extended by an additional thirty days. The final step in the administrative review process is an appeal to the Office of General Counsel on a BP-11 form. Id. The General Counsel has forty days to issue a response. Id. § 542.18. If an inmate does not receive a response within the time allotted for a reply, he may consider the absence of a response a denial at that level and proceed to the next level. Id. An inmate may seek relief in federal court only after he has exhausted all levels of the administrative review process. See Lundy v. Osborn, 555 F.2d 534, 535 (5th Cir. 1977) (“Only after such remedies are exhausted will the court entertain the application for relief in an appropriate case.”).

         “Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Fuller, 11 F.3d at 62 (internal citations omitted). Exceptions may be made only in “extraordinary circumstances, ” which the petitioner bears the burden to establish. Id.

         Malzahn claims he discussed his placement in a halfway house with his counselor. Pet'r's Pet. at 2. He further claims he submitted a formal written administrative remedy request on a BP-9 form to his warden, but he is still waiting for a response. Id. He fails to identify any extraordinary circumstances which would establish the futility of exhaustion in his case.

         The Court accordingly finds that Malzahn has not exhausted and dismissal is warranted on that basis alone. See Rivkin v. Tamez, 351 Fed.Appx. 876, 877-78 (5th Cir. 2009) (per curiam) (affirming dismissal of prisoner's § 2241 petition arguing violation of the Second Chance Act for failure to exhaust administrative remedies). But even if Malzahn had exhausted, he would still not be entitled to § 2241 relief.

         B. Authority of the Bureau of ...


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