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Ferguson v. Saad

United States District Court, S.D. West Virginia

March 28, 2019

KENITHA L. FERGUSON, Plaintiff,
v.
JENNIFER SAAD, Acting Warden, Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID A. FABER SENIOR UNITED STATES DISTRICT JUDGE.

         By Standing Order, this action was referred to United States Magistrate Judge Omar J. Aboulhosn for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Aboulhosn submitted to the court his Findings and Recommendation (“PF&R”) on August 21, 2018, in which he recommended that the district court deny the petitioner's petition for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. § 2241 (ECF No. 1), deny petitioner's “Motion for Declaration in Support of Entry of Default” (ECF No. 17), deny “Motion to Request a Mandatory Injunction Under the Irreparable Doctrine for Harm” (ECF No. 20), and remove this matter from the court's docket.

         In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Aboulhosn's Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).

         I. Underlying Petition

         This action arises out the petitioner's pro se petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.[1] Pending before the court are the following: (1) Petitioner's Application for Writ of Habeas Corpus by a person in Federal Custody under 28 U.S.C. § 2241 (ECF No. 1); (2) Petitioner's “Motion for Declaration in Support of Entry of Default” (ECF No. 17); and (3) Petitioner's “Motion to Request Mandatory Injunction Under the Irreparable Doctrine for Harm” (ECF No. 20).

         II. Discussion [2]

         a. Failure to Exhaust

         The magistrate judge found that the petitioner is not excused from exhausting her administrative remedies based upon futility or irreparable harm. (ECF NO. 29, p. 14).

         In her objections, the petitioner argues that:

pursing the administrative remedies would have been futile in my situation because, inter alia, the average time for a full course of remedies to complete takes anywhere form [sic] 6-12 months. This meaning it provided no genuine opportunity for adequate relief in this case because I am seeking immediate release or transfer to Home Confinement.

(ECF NO. 32, p. 1). In her objections the petitioner concedes that she has not exhausted her administrative remedies. Id. The petitioner claims, however, that if she went through the administrative process her request would be futile. Id.

         Although 28 U.S.C. § 2241 does not specifically require exhaustion, courts have generally required exhaustion of available administrative remedies. Pelissero v. Thompson, 170 F.3d 442, 445 (4th Cir. 1999). It is recognized that exhaustion may be excused under certain circumstances, such as by showing futility or irreparable harm. District Courts have continuously found, however, that exhaustion should not be excused on the basis that an inmate believes that the length of the exhaustion process will prevent the inmate from receiving a full RRC placement. See Wright v. Warden, 2010 WL 1258181, * 1 (D. Md. Mar. 24, 2010)(slip copy)(finding that “[e]haustion of administrative remedies is not rendered futile simply because an inmate anticipates he will be unsuccessful in his administrative appeals before the 12-month pre-release mark”); see also Yannucci v. Stansberry, 2009 WL 2421546, * 3 (E.D. Va. Jul. 28, 2009)(slip copy)(finding that inmate's claim that “he ran out of time to complete the administrative exhaustion process prior to filing his petition is not a sufficient excuse for failing to exhaust his [RRC] claims”); and Garrison v. Stansberry, 2009 WL 1160115, * 3 (E.D. Va. Apr. 29, 2009)(slip copy)(explaining that granting review of RRC placement claims because of “time-sensitivity” would encourage the filing of similar petitions before the administrative remedy process has run its course, which would “both undermine the effectiveness of the administrative review process and burden the Court with superfluous claims”).

         The court agrees with the finding of the magistrate judge (ECF NO. 29) and finds that the petitioner is not excused from exhausting her administrative remedies. Therefore, the petitioner's Petition is dismissed on this basis.

         b. Application of 18 U.S.C. ยงยง ...


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