Opinion
5:22-cv-01505-JFW-MAA
11-13-2023
SACOREY CLARK, Petitioner, v. MS. MCKINNEY, et al., Respondents.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE MARIA A. AUDERO, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I. INTRODUCTION
On August 24, 2022, Petitioner Sacorey Clark (“Petitioner”) filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 2241 (“Petition”). (Pet., ECF No. 1.) On June 9, 2023, Respondent Ms. McKinney (“Respondent”) filed a Motion to Dismiss the Petition on the basis that (1) it challenges Petitioner's conviction and therefore should be dismissed for lack of jurisdiction as an unauthorized second or successive motion pursuant to 28 U.S.C. § 2255 (“Section 2255”), (2) Petitioner failed to exhaust his administrative remedies with respect to Grounds Two through Eight of the Petition, and (3) Grounds Five through Seven of the Petition are not cognizable or moot (“Motion”). (ECF No. 14.) The Motion was accompanied by the Declaration of Yolanda Sanchez, a Paralegal Specialist employed by the Federal Bureau of Prisons (“BOP”) (“Sanchez Declaration”), with four attached exhibits. (Sanchez Decl., ECF No. 14-1.) On September 25, 2023, Petitioner filed an Opposition to the Motion (“Opposition”). (Opp'n, ECF No. 26.) Thus, this matter is ready for decision. As discussed below, the Court recommends that the Motion be GRANTED.
II. BACKGROUND
A. Underlying Criminal Proceedings
On May 9, 2018, following a jury trial in the United States District Court for the Eastern District of Missouri, Petitioner was convicted of felon possession of a firearm (18 U.S.C. § 922(g)(1)) by an armed career criminal (18 U.S.C. § 924(e)(1), Armed Career Criminal Act (“ACCA”)), and sentenced to a term of 180 months in federal prison and three years of supervised release. (Pet. 42; Sanchez Decl. 2.) See also J. in Criminal Case, United States v. Clark, No. 4:16-cr-00107-JAR (E.D. Mo. May 9, 2018), ECF No. 222. On August 16, 2021, Petitioner filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 in the sentencing court (“Section 2255 Motion”). See Clark v. United States, No. 4:21-cv-00127-JAR (E.D. Mo. Aug. 16, 2021), ECF No. 25. On December 15, 2021, the sentencing court denied the Section 2255 Motion on the merits. Clark, No. 4:21-cv-00127-JAR (E.D. Mo. Dec. 15, 2021), ECF No. 36. On December 12, 2022, the Eighth Circuit of the United States Court of Appeals denied a certificate of appealability for Petitioner's Section 2255 Motion. See J., Clark v. United States, No. 22-2907 (8th Cir. Dec. 12, 2022), Dkt. No. 75 (considering Petitioner's notice of appeal to be an application for certificate of appealability, denying the application for certificate of appealability and dismissing appeal). Petitioner's projected release date is April 10, 2029, assuming he receives all remaining good time credit. (Sanchez Decl. 2; Ex. A, Sanchez Decl. 8.)
Pinpoint citations in this Report and Recommendation refer to the page numbers appearing in the ECF-generated headers of the parties' filings.
The Court takes judicial notice of Petitioner's prior proceedings in the United States District Court for the Eastern District of Missouri and in the Eighth Circuit Court of Appeals. See Fed.R.Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); Harris v. Cty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court may take judicial notice of “documents on file in federal or state courts”).
B. Section 2241 Court Proceedings
On August 24, 2022, Petitioner filed the Petition, which alleges eight grounds for relief. (Pet. 8-12.) In Ground One, Petitioner alleges his sentence was imposed in violation of the ten-year maximum sentence provided under 18 U.S.C. § 924(a)(2) and in violation of the Eighth Amendment.(Pet. 8-9.) In Grounds Two through Seven, Petitioner challenges “individual officer actions” and various incident reports for exceeding or not complying with 28 C.F.R. §§ 541, 542, and 551 and requests-in addition to relief pursuant to Section 2241-the correction of records, including good time credits and custody classification scores, and dismissal and expungement of the incident reports. (See id. at 9-12.) The specific incident reports and disciplinary actions Petitioner challenges are as follows:
Specifically, Petitioner asserts that his fifteen-year sentence pursuant to the ACCA is unlawful because he lacked the three violent felony convictions required to be sentenced under the ACCA. (Pet. 8-9.) Petitioner alleges that one of the three convictions forming the basis for his sentencing under the ACCA-a conviction for second-degree assault (MO. REV. STAT. §565.060.1 (“Section 565.060.1”)-has a mens rea of recklessness and therefore, under Borden v. United States, 141 S.Ct. 1817 (2021) (“Borden”), does not qualify as a violent felony under the ACCA. (Id. at 9.)
a. Ground Two challenges incident report number 3433363 charging Petitioner with a violation of Prohibited Act Code 111A (introduction of drugs/alcohol) in September 2020 and the resulting disciplinary action of the loss of 41 days of good time credits (“GCTs”)and 30 days of disciplinary segregation. (Pet. 9, 20-22; Mot. 9-10; Sanchez Decl. 3.)
Respondent uses the term “Good Time Credits” and Petitioner uses the term “good time” to reference good conduct time (or “GCT”) credit. See 28 C.F.R. § 523.20 (using the term “good conduct time” and referencing it as “GCT.”)
b. Ground Three challenges incident report number 3415941 charging Petitioner with a violation of Prohibited Act Code 208 (interfering with security devices) in July 2020 and the resulting disciplinary action of the loss of 27 days of GCT. (Pet. 10, 23; Mot. 10; Sanchez Decl. 3.)
c. Ground Four challenges incident report number 3527341 charging Petitioner with a violation of Prohibited Act Code 208 (interfering with security devices) in July 2021 and the resulting disciplinary action of the loss of 27 days of GCT. (Pet. 10, 24-25; Mot. 10; Sanchez Decl. 3-4.)
d. Ground Five challenges incident report number 3581415 charging Petitioner with a violation of Prohibited Act Codes 307 (refusing to obey an order), 312 (being insolent to staff member), 317 (failing to follow safety regulations), and 404 (using abusive or obscene language) in December 2021 and the resulting disciplinary action of the loss of commissary, phone, email, and visitation privileges for 15 days. (Pet. 10-11, 25-29; Mot. 10-11; Sanchez Decl. 4.)
e. Ground Six challenges incident report numbers 3651027 and 3651029 charging Petitioner with a violation of Prohibited Acts Codes 307 (refusing to obey an order) and 312 (being insolent to staff member), respectively, in July 2022 and the resulting disciplinary action of the loss of phone and commissary privileges for 45 days. (Pet. 11, 30-33; Mot. 11; Sanchez Decl. 4.)
f. Ground Seven challenges incident report number 3653847 charging Petitioner with a violation of Prohibited Act Code 307 (refusing to obey an order) and the resulting disciplinary action of the loss of visitation and commissary privileges for three months. (Pet. 11, 34-36; Mot. 11; Sanchez Decl. 5.)
Finally, Ground Eight challenges Petitioner's confinement in the “SHU”and lack of access to legal items. (Pet. 12, 36-41.)
Petitioner does not clarify the meaning of the term “SHU,” but the Court understands it to reference the “Special Housing Unit.” See 28 C.F.R. § 541.21 (using the term “Special Housing Units and referencing it as “SHU.”)
On June 9, 2023, Respondent filed the instant Motion. (Mot.) After receiving an extension of time to oppose the Motion (ECF No. 17), on September 25, 2023, Petitioner filed his Opposition. (Opp'n.)
III. DISCUSSION
A. Ground One Should Be Dismissed for Lack of Jurisdiction.
Respondent argues that Ground One should be dismissed because it attacks Petitioner's underlying conviction and sentence, and such a challenge should be adjudicated pursuant to Section 2255 and not the instant Petition brought pursuant to Section 2241. (Mot. 14-16.) Respondent continues that, because Petitioner has already brought an unsuccessful Section 2255 motion, Ground One constitutes an impermissible second or successive Section 2255 motion. (Id. at 17.) In Petitioner's Opposition, he reiterates the argument he raised in the Petition that his sentence under the ACCA is unlawful. (Opp'n 2-3.) He contends that his prior conviction for second-degree assault under Section 565.060.1 does not qualify as a violent felony under the ACCA in light of Borden's holding that a crime with a mens rea of recklessness does not qualify as a violent felony under the ACCA. (Id.) He continues that he is actually innocent of his sentence, and therefore Section 2241 is the proper vehicle in which to raise this claim. (Id. at 5.)
1. Legal Standard
“Generally, motions to contest the legality of a sentence must be filed under [Section] 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to [Section] 2241 in the custodial court.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam) (citing Doganiere v. United States, 914 F.2d 165, 16970 (9th Cir. 1990)). Section 2255 provides in relevant part:
(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
(e) An application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, who would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. §2255.
“The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citations omitted). “There is an exception, however, set forth in [Section] 2255: A federal prisoner may file a habeas petition under [Section] 2241 to challenge the legality of a sentence when the prisoner's remedy under [Section] 2255 is ‘inadequate or ineffective to test the legality of his detention.'” Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008) (quoting 28 U.S.C. § 2255(e)); see Jones v. Hendrix, 143 S.Ct. 1857, 1863 (2023) (“Jones”). “We refer to this section of [Section] 2255 as the ‘saving[] clause,' or the ‘escape hatch.'” Harrison, 519 F.3d at 956 (citing Hernandez, 204 F.3d at 865); Jones, 143 S.Ct. at 1864. Until recently, the circuits were split on what limited circumstances would allow a petitioner to resort to a Section 2241 petition pursuant to the saving clause when the petitioner's claims would otherwise be barred under the Section 2255(h) limitations on second or successive Section 2255 motions. See Jones, 143 S.Ct. at 1864 (explaining circuit split). In the Ninth Circuit, Section 2255 constituted an inadequate or ineffective remedy, such that a petitioner could proceed under Section 2241, when the petitioner (1) made a claim of actual innocence, and (2) had not had an unobstructed procedural shot at presenting that claim. See Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012).
The Supreme Court recently resolved the circuit split in Jones, holding that a federal prisoner may not resort to challenging his conviction or sentence through a Section 2241 petition unless “unusual circumstances make it impossible or impracticable to seek relief in the sentencing court[,]” such as where the sentencing court no longer exists. Jones, 143 S.Ct. 1868. Otherwise, Section 2255(h) limits second or successive Section 2255 motions unless a panel of the appropriate court of appeals certifies that “they rely on either ‘newly discovered evidence,' . . . or ‘a new rule of constitutional law ....” Id. at 1863 (quoting Section 2255(h)(1) and Section 2255(h)(2), respectively). The inability of a prisoner to satisfy the conditions for a second or successive Section 2255 motion “does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all.” Id. at 1869. Following Jones, petitioners may not seek Section 2241 habeas relief, pursuant to the saving clause, except in those limited instances where bringing a Section 2255 motion in the sentencing court is “impossible or impracticable.” Id. at 1868; see also Rarey v. Unknown Gutierrez, No. CV-22-00350-TUC-SHR (JR), 2023 U.S. Dist. LEXIS 126064, at *9-10 (D. Ariz. July 19, 2023) (dismissing Section 2241 petition challenging conviction because under Jones, the petitioner was precluded from using the saving clause to bring his claims); Thomas v. Warden, No. 23-3028 (KMW), 2023 U.S. Dist. LEXIS 121696, at *4 (D. N.J. July 14, 2023) (dismissing Section 2241 petition as a second or successive Section 2255 motion because the saving clause was unavailable after Jones and the petitioner failed to establish that the requirements for authorization of a second or successive Section 2255 motion were met); Bentley v. Jameson, No. 3:23-00882023, U.S. Dist. LEXIS 119328, at *7 (M.D. Pa. July 11, 2023) (dismissing Section 2241 petition as an unauthorized or successive Section 2255 motion because after Jones, petitioner could not “challenge his sentence with a [Section] 2241 petition unless it fit[] within the parameters of [Section] 2255(h)) (citing Jones, 143 S.Ct. at 1864).
A district court must summarily dismiss a Section 2241 petition or Section 2255 motion “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts; accord Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. If a district court concludes that a habeas petition is an unauthorized second or successive Section 2255 motion, the court must dismiss the petition for lack of jurisdiction. See United States v. Lopez, 577 F.3d 1053, 1061 (9th Cir. 2009) (“If the petitioner does not first obtain [the circuit court's] authorization, the district court lacks jurisdiction to consider the second or successive application.” (citing Burton v. Stewart, 549 U.S. 147, 152-53 (2007))).
2. Analysis
Ground One does not challenge “the manner, location, or conditions of a sentence's execution,” which is the usual domain of a Section 2241 habeas petition. Harrison, 519 F.3d at 956. Rather, Petitioner challenges the legality of his sentence pursuant to the ACCA in light of the holding in Borden. (See Pet. 8-9; Opp'n 2-3.) Because Petitioner challenges the legality of his sentence, a Section 2255 motion is the proper vehicle to bring his claims. See Boumediene v. Bush, 553 U.S. 723, 774-75 (2008) (“[Section 2255] replaced traditional habeas corpus for federal prisoners (at least in the first instance) with a process that allowed the prisoner to file a motion with the sentencing court on the ground that his sentence was, inter alia, imposed in violation of the Constitution or laws of the United States.” (citation and quotation marks omitted)); see also 28 U.S.C. § 2255(a) (providing Section 2255 motion as means by which to challenge that a “court was without jurisdiction to impose [a] sentence”).
However, Petitioner previously attacked his judgment and sentence through a Section 2255 Motion. See Clark, No. 4:21-cv-00127-JAR (E.D. Mo. Dec. 15, 2021), ECF No. 25. He appealed the denial of his Section 2255 Motion, but such appeal was dismissed by the Eighth Circuit on December 12, 2022. Clark v. United States, No. 22-2907 (8th Cir. 2022), Dkt. No. 75. Petitioner does not contend, and the Court's independent search of the Eighth Circuit's public website for cases bearing Petitioner's name does not indicate, that Petitioner sought or obtained leave from the Eighth Circuit to file the instant Petition. And, as explained above, the Supreme Court has foreclosed the use of the saving clause to bring Petitioner's claims pursuant to a Section 2241 petition. See Jones, 143 S.Ct. 1869; see also Rarey, 2023 U.S. Dist. 126064, at *9-10; Warden, 2023 U.S. Dist. LEXIS 121696, at *4. Thus, the district court lacks jurisdiction to entertain Ground One of the Petition. See Lopez, 577 F.3d at 1061.
B. Grounds Two Through Eight Should Be Dismissed For Petitioner's Failure to Exhaust His Administrative Remedies.
Respondent argues Grounds Two through Eight of the Petition should be dismissed because Petitioner failed to exhaust these claims through the administrative remedy process afforded by the BOP. (Mot. 8, 17-20.) In support of this contention, Respondent includes as Exhibit D the Administrative Remedy Generalized Retrieval Report, which is a synopsis of all administrative remedy submissions filed by Petitioner as an inmate. (Sanchez Decl. 6; Ex. D, Sanchez Decl. 21-32.) Petitioner asserts that he “was prevented from” exhausting his administrative remedies (Pet. 24), was not given the requisite forms to exhaust administrative remedies (id. at 28, 32), and that there is an ongoing practice to prevent Petitioner from exhausting administrative remedies (id. at 43). In Petitioner's Opposition, he argues that he need not exhaust remedies if they are not available. (Opp'n 4.)
1. Legal Standard
Courts generally require habeas petitioners to exhaust all available administrative remedies before seeking relief under Section 2241. See Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). The exhaustion requirement serves several purposes: (1) it “aid[s] judicial review by allowing the appropriate development of a factual record in an expert forum”; (2) it “conserve[s] the court's time because of the possibility that the relief applied for may be granted at the administrative level”; and (3) it “allow[s] the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings.” Ruviwat v. Smith, 702 F.2d 844, 845 (9th Cir. 1983). However, the exhaustion requirement is not a “jurisdictional prerequisite.” Ward, 678 F.3d at 1045 (citation omitted). A petitioner's failure to exhaust may be excused in some circumstances, particularly when pursuing administrative remedies would be futile. Id. (citation omitted); see also United Farm Workers v. Ariz. Agr. Emp. Rel. Bd., 669 F.2d 1249, 1253 (9th Cir. 1982) (“Exhaustion of administrative remedies is not required where the remedies are inadequate, inefficacious, or futile, where pursuit of them would irreparably injure the plaintiff, or where the administrative proceedings themselves are void.”) (citation omitted).
To exhaust administrative remedies with respect to claims asserted in a habeas petition, a petitioner is required to submit an “issue of concern” with the staff of the institution of confinement (on a “BP-8” form) seeking “informal resolution,” as required by 28 C.F.R. § 542.13(a), a formal request with the Warden (on a “BP-9” form), as required by 28 C.F.R. § 542.14(a), an appeal with the Regional Director (on a “BP-10” form), as required by 28 C.F.R. § 542.15(a), and an ultimate appeal with the Office of General Counsel (on a “BP-11” form), as required by 28 C.F.R. § 542.15(a). There are specific requirements for appeals to the Regional Director and to the Office of General Counsel, including the following: “An inmate shall complete the appropriate form with all requested identifying information and shall state the reasons for the Appeal in the space provided on the form. If more space is needed, the inmate may use up to one lettersize (8 ½” x 11”) continuation page.” 28 C.F.R. § 542.15(b)(3). The Regional Director has thirty days to respond to an appeal (unless extended in writing by 30 days); the lack of a response is considered a denial. 28 C.F.R. § 542.18. The Office of the General Counsel has forty days to respond to an appeal (unless extended in writing by twenty days); the absence of a response is considered a denial. Id.
An administrative remedy request or appeal may be rejected and returned to the inmate if it is “written in a manner that is obscene or abusive, or does not meet any other requirement of this part.” 28 C.F.R. § 542.17(a) (emphasis added). The “rejection” of an inmate's administrative remedy request or appeal based on procedural grounds is not the same as a “denial,” which is a decision on the merits. See Mangum v. Ives, No. CV 13-4276-MWF (RNB), 2013 U.S. Dist. LEXIS 152457, at *2 (C.D. Cal. Sept. 12, 2013), accepted, 2013 U.S. Dist. LEXIS 152411 (C.D. Cal. Oct. 23, 2013); 28 C.F.R. § 542.17(a). When an administrative remedy request or appeal is rejected, the request or appeal must be returned to the inmate with a written notice explaining the reason for the rejection. 28 C.F.R. § 542.17(b). If the defect on which the rejection is based is correctable, the notice must afford a reasonable time extension within which to correct the defect and resubmit the administrative remedy request or appeal. Id. If the inmate is not afforded an opportunity to correct the defect and resubmit the administrative remedy request or appeal, the inmate may appeal the rejection to the next level. 28 C.F.R. § 542.17(c). If the inmate does appeal the rejection, the next level “may affirm the rejection, may direct that the submission be accepted at the lower level (either upon the inmate's resubmission or direct return to that lower level), or may accept the submission for filing.” Id.
2. Analysis
The Court agrees with Respondent that Petitioner has not utilized the administrative remedy process sufficient to exhaust his administrative remedies prior to filing the Petition. Petitioner has utilized the administrative remedy process with respect to a variety of requests for administrative action, but not as to the claims in Grounds Two through Eight. (See Sanchez Decl. 6 (stating that Petitioner has submitted 22 administrative remedy requests since being in BOP custody, but only four requests relating to disciplinary action)). Petitioner did not complete the administrative remedy process with respect to any of the claims forming the basis for Grounds Two through Eight. (See id.; see generally Ex. D, Sanchez Decl. 21-32.)
Petitioner attaches several requests for administrative remedies as exhibits to the Petition. (Pet. 68-71, 73.) However, with the exception of one of the forms, a BP-9 related to incident report 3651027 (Ground Six), these requests seek access to medical care and telephones and do not otherwise reference any disciplinary action taken against Petitioner. (Id.) With respect to Ground Six, the Administrative Remedy Generalized Retrieval Report indicates that the request was denied and no further action by Petitioner was taken (Sanchez Decl. 32), and Petitioner does not indicate to the contrary (see generally Pet.; Opp'n). As a result, the evidence in the record leads the Court to conclude that Petitioner failed to exhaust his administrative remedies as to his claims underlying Grounds Two through Eight prior to filing the Petition. See Wesley v. Martin, No. 3:14CV416 HTW-LRA, 2017 U.S. Dist. LEXIS 63256, at *2 (S.D.Miss. Apr. 7, 2017) (“An inmate must utilize all four levels in the manner prescribed before exhaustion of remedies is completed.”), adopted, 2017 U.S. Dist. LEXIS 63243 (S.D.Miss. Apr. 26, 2017).
Moreover, Petitioner's documented use of the administrative remedy process for other complaints reveals that he is aware of the process and that utilizing it is not futile. Though Petitioner claims that Respondent has prevented him from exhausting his administrative remedies by not providing the appropriate forms, the evidence before the Court indicates that Petitioner has adeptly utilized the administrative remedy process for other complaints. See Banks v. Thompson, No. 1:21-CV-890, 2021 U.S. Dist. LEXIS 207617, at *7 (M.D. Pa. Oct. 27, 2021) (finding that exhaustion was not futile where, despite petitioner's claims that he was prevented from accessing the proper forms to exhaust his administrative remedies, the record showed that petitioner had submitted numerous complaints since being in custody). The record-the various complaints registered in the Administrative Remedy Generalized Retrieval Report-belies Petitioner's claim that Respondent has made the administrative remedy process unavailable to him. (See Ex D, Sanchez Decl. 21-32.)
Because there is no indication that the pursuit of administrative remedies would be futile, the Court does not waive the exhaustion requirement. See Ward, 678 F.3d at 1045-46 (finding that exhaustion would be futile when an official BOP policy required the denial of the petitioner's claims); Washington v. Hodges, No. 12-CV-854-NJR-DGW, 2021 U.S. Dist. LEXIS 211225, at *3 (S.D. Ill. Oct. 22, 2014) (finding that the failure to exhaust administrative remedies “cannot be excused because [the petitioner] failed to show that the grievance process was made unavailable to him”). Since Petitioner did not exhaust his administrative remedies, the Motion should be granted, and the Petition should be dismissed without prejudice.
Because the Court recommends that the Petition be dismissed for failure to exhaust administrative remedies, it is unnecessary to address Respondent's remaining arguments in the Motion.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court issue an Order: (1) accepting this Report and Recommendation; (2) granting the Motion to Dismiss the Petition; and (3) directing that Judgment be entered dismissing this action without prejudice.