Opinion
CIV-21-1159-R
12-29-2021
JESSE MANQUAN YARCLAY, Petitioner, v. JOSEPH MICIELI, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner Jesse Manquan Yarclay, a federal prisoner appearing pro se, purportedly brings this action under 28 U.S.C. § 2241, seeking reinstatement to a residential drug abuse program (RDAP) that, if completed, could have resulted in his transfer to a halfway house. United States District Judge David L. Russell has referred this action for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
Mr. Yarclay has filed a motion (ECF No. 5) that will be construed as a motion to supplement his initial pleading. The Court GRANTS Mr. Yarclay's motion to supplement and has considered the additional legal argument contained therein.
Based on Mr. Yarclay's failure to exhaust administrative remedies, this action should be DISMISSED without prejudice for failure to state a claim upon which relief may be granted.
I, BACKGROUND
Mr. Yarclay is currently in the custody of the Bureau of Prisons (BOP) serving a term of imprisonment. According to his Petition, he was participating in the RDAP at FCI- El Reno. Documents attached to his petition demonstrate he had completed the first two phases of the program. (ECF No. 1-2). According to Mr. Yarclay, he would have been released to a halfway house on December 8, 2021, had he completed the program.
But Mr. Yarclay was expelled from the program, an expulsion he claims was arbitrary and retaliatory, violating his due process and equal protection rights. He states his expulsion occurred one day after his mother complained by email to the regional office of the BOP about an offensive statement made by one of the RDAP leaders. (ECF No. 1:6; 1-1). According to Mr. Yarclay, other inmates have been allowed to complete the RDAP even after disciplinary complaints have been lodged against them.
II. ANALYSIS
“In this circuit, a prisoner who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinement, must do so through an application for habeas corpus. In contrast, a prisoner who challenges the conditions of his confinement must do so through a civil rights action.” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (citation omitted). In this case, Petitioner's challenge to his expulsion from the RDAP program and his contention that he should have been transferred to a halfway house are best categorized as challenges to the conditions of his confinement. “[A] request by a federal prisoner for a change in the place of confinement is properly construed as a challenge to the conditions of confinement and, thus, must be brought pursuant to [Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)].” Id. (quotations omitted); see also McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997) (explaining that § 2241 actions are not used to challenge prison conditions).
Regardless of the classification of Petitioner's claims, however, exhaustion of administrative remedies is required before an inmate can bring either type of action in federal court. Failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a) will result in dismissal of a Bivens case. Booth v. Churner, 532 U.S. 731, 741, (2001). The statute provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). See also Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (noting that before filing a § 2241 petition, federal prisoners must exhaust their administrative remedies).
To exhaust administrative remedies, an inmate must first attempt to resolve his complaints informally, and if that fails, he must submit a formal request for an administrative remedy to the institution. Id. at 1204. If that attempt also fails, he may file a regional appeal, and then a national appeal. Id. (citing 28 C.F.R. § 542.15(a)). Inmates are excused from exhausting their administrative remedies only if they can show exhaustion would have been futile. Id. at 1203.
A district court can sua sponte dismiss actions based on failure to exhaust administrative remedies in the “rare cases” in which “it is clear from the face of the complaint that the prisoner has not exhausted his administrative remedies.” Lax v. Corizon Med. Staff, 766 Fed.Appx. 626, 628 (10th Cir. 2019) (quoting Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)).
Here, Mr. Yarclay acknowledges that he is still in the process of exhausting his administrative remedies. (ECF No. 1:3). He asks that the exhaustion requirement be excused in his case because the projected date for his transfer to a halfway house has passed. In the supplement to his initial pleading, Mr. Yarclay cites cases standing for the proposition that federal courts may proceed to the merits of a case before the inmate has exhausted his administrative remedies if the inmate's interest in resolution of the case outweighs the interest of the government. But there is no precedent for excusing completion of the exhaustion requirement based on the expiration of a petitioner's projected release to a halfway house. See Reyes v. Ledezma, No. CIV-09-83-M, 2009 WL 1362606, at *3 (W.D. Okla. May 14, 2009) (expiration of Petitioner's projected early release date does not excuse him from exhausting administrative remedies). Thus, this Court finds the interests of the government in full exhaustion of administrative remedies outweighs Mr. Yarclay's interest in premature consideration of his claim. Because it is apparent from the face of his pleading that Mr. Yarclay has failed to exhaust his administrative remedies, it is recommended that this action be dismissed without prejudice for failure to state a claim upon which relief may be granted.
III. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the reasons discussed in this Report and Recommendation, Mr. Yarclay's motion to supplement his pleading (ECF No. 5) is GRANTED. The Court recommends Mr. Yarclay's action be sua sponte DISMISSED without prejudice for failure to state a claim upon which relief may be granted. Mr. Yarclay is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by January 18, 2022. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
IV. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.