*

The Honorable Peter C. Economus, Senior United States District Judge for the Northern District

of Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0020p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JAMES D. LUEDTKE,

Petitioner-Appellant,

v.

DAVID BERKEBILE,

Respondent-Appellee.

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No. 12-5656

Appeal from the United States District Court

for the Eastern District of Kentucky at Pikeville.

No. 7:12-cv-00044—Karen K. Caldwell, District Judge.

Decided and Filed: January 16, 2013 

Before: SUTTON and DONALD, Circuit Judges; ECONOMUS, District Judge.*

_________________

COUNSEL

ON BRIEF: James Luedtke, Inez, Kentucky, pro se.

_________________

OPINION

_________________

SUTTON, Circuit Judge. James Luedtke, a pro se federal prisoner, appeals the

district court’s judgment dismissing without prejudice his petition for a writ of habeas

corpus under 28 U.S.C. § 2241. We affirm the district court’s decision on his first three

claims, vacate it on his fourth claim and remand for further proceedings.

On May 7, 2012, Luedtke filed a § 2241 petition in the United States District

Court for the Eastern District of Kentucky, alleging that prison officials (1) violated his

1
No. 12-5656 Luedtke v. Berkebile Page 2

Thirteenth Amendment rights by refusing to pay him the wages he earned in his prison

job, (2) failed to require all inmates to work, (3) discriminated against white inmates in

favor of black inmates and “illegal aliens from Mexico,” and (4) improperly placed him

on refusal status for the Inmate Financial Responsibility Program. Luedtke sought

injunctive relief and asked the court to appoint him counsel. The district court dismissed

Luedtke’s petition under its screening authority before the government filed a response.

See 28 U.S.C. § 2243.

The district court properly dismissed without prejudice Luedtke’s first three

claims because § 2241 is not the proper vehicle for a prisoner to challenge conditions of

confinement. See Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (holding that the

district court should dismiss the § 2241 claim without prejudice so the state petitioner

could re-file as a § 1983 claim); Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir.

2004) (construing conditions-of-confinement claims as properly brought in a civil action

under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 408 U.S. 388

(1971)). The district court was also right to conclude that Luedtke’s fourth claim is

cognizable under § 2241 as a challenge to the execution of a portion of his sentence. See

United States v. Coleman, 229 F.3d 1154, 1154 (6th Cir. 2000) (unpublished table

decision). The district court erred, however, in dismissing the fourth claim as

unexhausted, at least at the screening stage.

Federal prisoners, it is true, must exhaust their administrative remedies before

they may file a § 2241 petition. Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 231

(6th Cir. 2006). But exhaustion is an affirmative defense, both generally, see Wright v.

Universal Maritime Serv. Corp., 525 U.S. 70, 75 (1998), and in the context of prisoner

lawsuits, see Jones v. Bock, 549 U.S. 199, 216–17 (2007). Even under the Prison

Litigation Reform Act, an inmate’s § 1983 claim “may not be dismissed at the screening

stage for failure to plead or attach exhibits with proof of exhaustion.” Grinter v. Knight,

532 F.3d 567, 578 (6th Cir. 2008). The same holds true for a federal prisoner’s § 2241

petition. See George v. Longley, 463 F. App’x 136, 139–40 (3d Cir. 2012); see also
No. 12-5656 Luedtke v. Berkebile Page 3

Fazzini, 473 F.3d at 233–35 (treating exhaustion under § 2241 identically to exhaustion

under the PLRA).

For these reasons, we vacate the district court’s dismissal of Luedtke’s fourth

claim, affirm the remainder of the district court’s judgment and remand for further

proceedings. We also deny Luedtke’s motion for appointment of counsel.