United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
Dannv
C. Reeves United States District Judge.
On
December 20, 2016, federal inmate Vivek Shah filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
for the purpose of challenging a prison disciplinary
conviction.[1] [Record No. 1] Documents attached to the
petition showed that Shah appealed the conviction to the
Bureau of Prisons' Mid-Atlantic Regional Office on August
15, 2016. After he was denied relief on October 26, 2016,
Shah appealed to the BOP's Central Office on November 1,
2016. [Record No. 1-2 at 2-4, 16-17]
On
December 23, 2016, the Court noted that, by regulation,
Shah's appeal “is considered filed on the date it
is logged into the Administrative Remedy Index as
received.” The same regulation provides the Central
Office with forty calendar days to decide an appeal, which
may be extended by twenty days if additional time is needed
to properly respond. 28 C.F.R. § 542.18. While the
regulation also permits an inmate to treat the absence of a
timely response to an appeal as a denial, Shah filed this
action forty-nine days after he mailed his Central Office
appeal, before the sixty days to which the Central Office is
entitled to respond had expired. As a result, Court noted
that Shah's petition was premature, and invited him to
provide an explanation why his petition should nonetheless be
considered on the merits. [Record No. 5]
Shah
has filed a response which contains factual and legal
arguments. He indicates that he has been unable to confirm
that the Central Office received his appeal despite numerous
checks in November. Shah expresses concern that his mailing
label may have been “fried” by the X-ray or Gamma
scanners used to screen mail. [Record No. 8 at 1-3] Shah also
argues that he timely submitted his appeal to the Central
Office and that any failure by that office to receive it and
respond to his claims is not attributable to him. Therefore,
Shah contends that his administrative remedies should be
deemed exhausted. [Record No. 8 at 4-10]
These
arguments all miss the mark: the documents Shah filed with
his petition show or strongly suggest that his appeal to the
Central Office was timely filed. But they also establish that
he did not give the Central Office sufficient time respond to
his grievance before filing his petition (assuming that it
was received).
Shah
also includes a grab-bag of legal theories to excuse his
failure to exhaust administrative remedies. He makes a
passing argument that, because his constitutional challenge
to the disciplinary offense cannot be remedied through the
grievance process, exhaustion is not required. [Record No. 8
at 11] That argument is without merit. Porter v.
Nussle, 534 U.S. 516 (2002). Shah is correct that a
court may not deny a habeas petition upon initial screening
merely because the petitioner “fail[ed] to plead or
attach exhibits with proof of exhaustion” to his
petition. Luedtke v. Berkebile, 704 F.3d 465 (6th
Cir. 2013). However, the defect in Shah's petition is not
what it fails to plead (i.e., the only question at
issue in Luedtke), but what the petition and its
exhibits plainly and affirmatively show: that he had yet to
fully exhaust his administrative remedies before he filed
suit on December 20, 2016.
The
case law is clear and uniform that where such a defect is
apparent from the pleading itself, it may be dismissed
without prejudice upon initial review. See Jones v.
Bock, 549 U.S. 199, 214-15 (2007) (district court can
dismiss complaint sua sponte when it is apparent
from the face of the complaint that claim is barred by
affirmative defense); Carbe v. Lappin, 492 F.3d 325,
328 (5th Cir. 2007) (where complaint made clear that prisoner
failed to exhaust administrative remedies, district court may
dismiss it sua sponte for failure to state a claim);
Fletcher v. Myers, No. 5:11-141-KKC (E.D. Ky. May
17, 2012), aff'd, No. 12-5630 (6th Cir. Jan. 4,
2013) (“Because Fletcher's failure to exhaust, or
to attempt to exhaust, administrative remedies is apparent
from the face of his complaint, the district court properly
dismissed Fletcher's complaint on that basis.”);
Smith v. Lief, No. 10-08-JMH, 2010 WL 411134, at *4
(E.D. Ky. Jan. 27, 2010); Gunn v. Ky. Dept. of
Corrections, No. 5:07CV-P103-R, 2008 WL 2002259, at *4
(W.D. Ky. May 7, 2008); Deruyscher v. Michigan Dept. of
Corrections Health, No. 06-15260-BC, 2007 WL 1452929, at
*3 (E.D. Mich. May 17, 2007).
Because
Shah filed his petition before giving the BOP's Central
Office sufficient time to respond, the Court will deny it as
prematurely filed. This denial is without prejudice to
Shah's right to file a new petition, and does not reach:
(i) the merits of the petitioner's claims, or (ii) the
question of whether, after the Central Office's sixty-day
response window passed, Shah should be deemed to have
exhausted his administrative remedies in light of the Central
Office's failure to receive the Form BP-231 Shah
indicates he mailed on November 2, 2016.
Accordingly,
it is hereby
ORDERED
that Shah's petition for a writ of habeas corpus [Record
No. 1] is DENIED and this action is DISMISSED, without
prejudice.
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Notes:
[1] Shah's petition was docketed on
December 22, 2016, but a prisoner's pleading is
presumptively deemed filed on the day he signs it. Brand
v. Motley, 52 ...