United States District Court, S.D. West Virginia
KENITHA L. FERGUSON, Plaintiff,
JENNIFER SAAD, Acting Warden, Defendant.
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE.
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
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.
action arises out the petitioner's pro se petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. §
2241. 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).
Failure to Exhaust
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).
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
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”).
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.
Application of 18 U.S.C. §§ ...