United States District Court, E.D. Kentucky, Southern Division
SONTAY T. SMOTHERMAN, Petitioner,
H. JOYNER, Warden, Respondent.
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, UNITED STATES DISTRICT JUDGE
2013, a jury convicted Sontay T. Smotherman on drug
trafficking and firearm charges, and the trial court
sentenced him to 10 years in federal prison. See United
States v. Smotherman, No. 2:12-cr-055 at Rs. 209, 240
(S.D. Ohio 2013). Smotherman is now an inmate at the United
States Penitentiary - Big Sandy in Inez, Kentucky. Proceeding
without a lawyer, Smotherman filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1].
claims in his petition that, starting on March 21, 2019, he
asked multiple prison officials to allow him to participate
in the Bureau of Prisons' (BOP's) Residential Drug
Abuse Program (RDAP). [R. 1-1 at 2]. Indeed, Smotherman
attaches to his petition three emails that he sent to prison
officials making this request-one to the prison's
Psychology Services Department on March 21, 2019 [R. 1-2],
one to an Executive Assistant within the prison on April 19,
2019 [R. 1-3], and one to the Warden on April 22, 2019 [R.
1-4]. Smotherman claims that he also tried to hand a printed
copy of his request to an unnamed prison official on April
22, 2019, but that official would neither accept nor read his
request and, instead, walked away. [R. 1-1 at 2]. Therefore,
one week later, Smotherman drafted his habeas petition and
filed it with this Court. Ultimately, Smotherman suggests
that prison officials are violating 18 U.S.C. § 3621 by
not immediately determining whether he is eligible for the
RDAP. [R. 1-1 at 2-3]. Smotherman's petition is now
before this Court on initial review pursuant to 28 U.S.C.
§ 2243. See Alexander v. Northern Bureau of
Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011).
Court will deny Smotherman's petition without prejudice
because is apparent from the face of his petition that he has
not yet fully exhausted his administrative remedies, as
required. See Fazzini v. Ne. Ohio Corr. Ctr., 473
F.3d 229, 231 (6th Cir. 2006) (recognizing that a federal
prisoner must exhaust his administrative remedies before
filing a habeas petition under § 2241). Under the law,
there is a multi-tiered administrative grievance process
within the BOP. If a matter cannot be resolved informally,
the prisoner must file an Administrative Remedy Request Form
(BP-9 Form) with the Warden, who has 20 days to respond.
See 28 U.S.C. §§ 542.14(a) and 542.18. If
the prisoner is not satisfied with the Warden's response,
he may use a BP-10 Form to appeal to the applicable Regional
Director, who has 30 days to respond. See 28 U.S.C.
§§ 542.15 and 542.18. If the prisoner is not
satisfied with the Regional Director's response, he may
use a BP-11 Form to appeal to the General Counsel, who has 40
days to respond. See 28 U.S.C. §§ 542.15
Smotherman makes it clear that he has not yet fully exhausted
his administrative remedies. While Smotherman recently tried
to resolve this matter informally, he only contacted the
Warden about the RDAP on April 22, 2019, just one week before
he signed his petition in this case. Thus, the Warden's
time period to respond has not yet expired; in fact, as of
the date of this Opinion, the Warden still has time to
respond to Smotherman's administrative
request.In this situation, where a petitioner's
failure to exhaust is apparent from the face of the pleading
itself, sua sponte dismissal is appropriate. See John
Kenney v. J. Ormond, No. 17-5889 (6th Cir. May 7, 2018)
(affirming this Court's decision denying a § 2241
petition for failure to exhaust).
while this Court will only deny Smotherman's present
petition without prejudice, meaning that he can later file a
new habeas petition regarding this matter, Smotherman's
best bet is to fully pursue his remedies within the BOP.
After all, it is the BOP that has the authority to determine
a prisoner's place of imprisonment, including but not
limited to his participation in the RDAP. See Mann v.
Snyder-Norris, No. 0:16-cv-088-HRW at R. 11 at 4-5 (E.D.
Ky. 2017) (emphasizing this point when denying a
prisoner's similar § 2241 petition on the merits).
it is ORDERED that:
Smotherman's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 [R. 1] is
DENIED without prejudice.
pending motions are DENIED as moot.
action is STRICKEN from the Court's
corresponding Judgment will be entered this date.
 This is true even if Smotherman did
try to hand a printed copy of his request to another prison
official who refused to accept or read it, as Smotherman