IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SEAN PATRICK GJERDE,

Case No. 3:14-cv-01291-JE

Petitioner,

v.

MARION FEATHER,

FINDINGS AND RECOMMENDATION

Respondent.

Douglas M. Bragg

Millard & Bragg, P.C.

419 Fifth Street

Oregon City, Oregon 97045

Attorney for Petitioner

Ellen F. Rosenblum, Attorney General

Natalie K. Wight, Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem, Oregon 97310

Attorneys for Respondent

 1 - FINDINGS AND RECOMMENDATION

Case 3:14-cv-01291-JE Document 8 Filed 12/16/14 Page 1 of 6
JELDERKS, Magistrate Judge.

Petitioner brings this habeas corpus case pursuant to 28

U.S.C. § 2241 challenging the Bureau of Prisons’ (“BOP’s”) decision

not to release him to a Residential Reentry Center (“RRC”) until

December 4, 2014. For the reasons that follow, the Petition for

Writ of Habeas Corpus (#1) should be dismissed.

BACKGROUND

Petitioner is a federal inmate serving a 30-month sentence for

conspiracy to commit mail fraud and making false statements in

mortgage applications. His projected release is June 1, 2015, and

the BOP scheduled his transfer to a RRC for December 4, 2014, which

is 180 days prior to his release date.

Petitioner learned of his scheduled RRC placement on March 14,

2014. Petition (#2), p. 3. He did not immediately seek

administrative relief, and instead waited more than five months

before filing this habeas corpus action on August 19, 2014 alleging

that the BOP’s method of determining an inmate’s time to be spent

in a RRC should not be correlated with the length of his sentence. 

He asserts that the BOP has a policy whereby individuals with

lengthier sentences enjoy longer placements in RRC’s such that the

policy violates the Equal Protection Clause. He also claims that

Program statement 5531.02 is unlawful. He asks the court to

invalidate this policy and require the BOP to expedite his transfer

to a RRC.

 2 - FINDINGS AND RECOMMENDATION

Case 3:14-cv-01291-JE Document 8 Filed 12/16/14 Page 2 of 6
On September 9, 2014, three weeks after filing this habeas

corpus case, petitioner elected to avail himself of his

administrative remedies. He began by filing a BP-9 administrative

remedy request with the Warden, but this request was summarily

rejected the same day solely for procedural reasons. BOP

regulations required petitioner to first attempt an informal

resolution and submit a BP-8 form signed by his Unit Manager. 

Because petitioner had not first attempted to resolve his issue

informally, the BOP rejected his grievance. Declaration and

Certification of Records by Margaret Kallunki, pp. 2-3.

Five days later, on September 19, 2014, petitioner filed a new

request for administrative remedy, but on September 24, 2014, he

withdrew that request claiming that he had successfully resolved

the matter informally. Id at 3. Despite representing to the BOP

that his matter had been resolved, petitioner did not seek to

dismiss this case, which is now under advisement.

DISCUSSION

It is well settled that federal prisoners must exhaust their

federal administrative remedies prior to filing a habeas corpus

petition. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); 

see also Fendler v. United States Parole Com'n, 774 F.2d 975, 979

(9th Cir. 1985). While the exhaustion requirement is not

jurisdictional, its importance is well established. Brown v.

Rison, 895 F.2d 533, 535 (9th Cir. 1990). 

 3 - FINDINGS AND RECOMMENDATION

Case 3:14-cv-01291-JE Document 8 Filed 12/16/14 Page 3 of 6
 Requiring a petitioner to exhaust his administrative remedies

aids "judicial review by allowing the appropriate development of a

factual record in an expert forum." Ruviwat v. Smith, 701 F.2d

844, 845 (9th Cir. 1983). Use of available administrative remedies

conserves "the court's time because of the possibility that the

relief applied for may be granted at the administrative level." 

Id. Moreover, it allows "the administrative agency an opportunity

to correct errors occurring in the course of administrative

proceedings." Id.; United Farm Workers v. Arizona Agric. Employ.

Relations 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." Id (citation omitted); see also

Ward v. Chavez, 678 F.3d 1042 (9th Cir 2012) (exhaustion waived

where request for administrative remedy initially denied based upon

official BOP policy and further appeal would have “unquestionably”

been denied based upon the same policy).

In this case, petitioner does not allege, nor does the record

show, that the BOP rejected his request for administrative relief

based upon a policy precluding such claims. Instead, he alleges

that exhaustion of his administrative remedies would have been

futile because, by the time he filed this habeas corpus case, he

did not have enough time to move through the administrative remedy

 4 - FINDINGS AND RECOMMENDATION

Case 3:14-cv-01291-JE Document 8 Filed 12/16/14 Page 4 of 6
process to achieve the relief he sought. But it was petitioner who

waited more than five months from the time he learned of the BOP’s

RRC placement decision to file this action without ever first

attempting to avail himself of the administrative review process. 

These facts do not render the administrative relief process futile.

In addition, the BOP did not deny petitioner’s initial BP-9

based upon an official BOP policy precluding the merits of his

claim. Instead, petitioner did not follow the BOP’s clearly

established protocol for advancing his administrative appeal. An

inmate cannot defeat the exhaustion requirement by making his

request for administrative relief procedurally deficient such that

the BOP will not consider its merits.

Moreover, when petitioner later refiled his request for

administrative relief, he voluntarily withdrew that request five

days later and specifically informed the BOP that the matter had

been resolved through his efforts at informal resolution. This in

no way establishes that the administrative review process was

futile, and does not justify excusing petitioner from the

exhaustion requirement altogether. Accordingly, the Petition for

Writ of Habeas Corpus should be dismissed without prejudice based

upon petitioner’s failure to exhaust his administrative remedies.1

1

 Although not necessary to the disposition of this case,

even if the court were to exempt petitioner from the exhaustion

requirement, the Ninth Circuit previously upheld the BOP’s RRC

placement policies in Sacora v. Thomas, 628 F.3d 1059 (9th Cir.

2010). In addition, the BOP’s decision as to the exact timing of

 5 - FINDINGS AND RECOMMENDATION

Case 3:14-cv-01291-JE Document 8 Filed 12/16/14 Page 5 of 6
See Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011)

(dismissal for failure to exhaust should be without prejudice).

RECOMMENDATION

For the reasons identified above, the Petition for Writ of

Habeas Corpus (#1) should be dismissed, and a judgment should be

entered dismissing this case without prejudice.

SCHEDULING ORDER

This Findings and Recommendation will be referred to a

district judge. Objections, if any, are due within 17 days. If no

objections are filed, then the Findings and Recommendation will go

under advisement on that date.

If objections are filed, then a response is due within 14 days

after being served with a copy of the objections. When the response

is due or filed, whichever date is earlier, the Findings and

Recommendation will go under advisement.

DATED this 16th day of December, 2014.

 /s/ JOHN JELDERKS 

John Jelderks

United States Magistrate Judge

petitioner’s transfer to a RRC would likely constitute an

individualized determination concerning his placement and, as

such, is not reviewable by this court. Reeb v. Thomas, 636 F.3d

1224, 1227 (9th Cir. 2011). Moreover, petitioner does not appear

to state a valid equal protection claim where he does not allege

that the BOP treated him differently than similarly situated

prisoners.

 6 - FINDINGS AND RECOMMENDATION

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