NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
WINIFRED JIAU, Petitioner - Appellant,
v. KAIRE POOLE, PsyD and RANDY L. TEWS, Warden, Respondents - Appellees. No. 13-15378
D.C. No. 3:12-cv-04193-SI
MEMORANDUM *

WINIFRED JIAU, Plaintiff - Appellant,
v. KAIRE POOLE; RANDY L. TEWS, Warden, Defendants- Appellees. No. 13-15489
D.C. No. 3:13-cv-00248-WHA

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding William Alsup, District Judge, Presiding 

# FILED
JAN 15 2015 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.Argued and Submitted December 8, 2014 San Francisco, California Before: RAWLINSON and MURGUIA, Circuit Judges, and NAVARRO, Chief District Judge. ** Petitioner Winifred Jiau appeals the sua sponte dismissals of her two cases by the district court. Jiau’s 28 U.S.C. § 2241 habeas petition and her action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), both allege constitu tional violations in connection with her expulsion from the Residential Drug Abuse Treatment Program (“RDAP”). Therefore, thes e cases were consolidated on appeal. We review de
novo. Close v. Thomas , 653 F.3d 970, 973 (9th Cir. 2011); Adams v. Johnson , 355 F.3d 1179, 1183 (9th Cir. 2004). We affirm the dismissal of Jiau’s habeas petition and vacate and remand the dismissal of her Bivensaction. The district court sua sponte dismissed Jiau’s habeas petition without prejudice citing her failure to exhaust her administrative remedies prior to filing her action. Though exhaustion of administrative remedies is not a jurisdictional prerequisite for habeas petitions, courts generally “require, as a prudential matter, that habeas petitioners exhaust availabl e judicial and administrative remedies

** The Honorable Gloria M. Navarro, Chief District Judge for the U.S. District Court for the District of Nevada, sitting by designation. 2before seeking [such] relief.” Castro-Cortez v. INS , 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales , 548 U.S. 30 (2006). Accordingly, because Jiau ha d failed to exhaust her administrative remedies at the time she filed her petition, the district court correctly dismissed her habeas action. Leonardo v. Crawford , 646 F.3d 1157, 1160 (9th Cir. 2011); Martinez v. Roberts , 804 F.2d 570, 571 (9th Cir. 1986). The district court sua sponte dismissed Jiau’s Bivensaction citing that by seeking readmission into RDAP, her claims necessarily implicated the duration of her confinement and success on those claims would entitle her to an earlier release; therefore, under Skinner v. Switzer , 131 S. Ct. 1289 (2011), those claims could only be raised in a habeas petition. In Skinner , the Supreme Court held that habeas is the exclusive remedy for a prisoner w ho seeks immediate or speedier release from confinement, but it limited this exclusivity only to actions where success on the claims would “necessarily spell speedier release.” Skinner , 131 S. Ct. at 1293 (citing Wilkinson v. Dotson , 544 U.S. 74 81–82 (2005)). Accordingly, implicit in the district court’s order is a finding that readmission into RDAP would “necessarily spell speedier release” for Jiau. The language in the applicable statut e, however, indicates that successful completion of RDAP does not necessarily result in a reduced sentence, but rather 3that the Bureau of Prisons (“BOP”) retains discretion over whether to grant a sentence reduction to a prisoner who completes the program. See 18 U.S.C. § 3621(e)(2)(B) (“The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program maybe reduced by the Bureau of Prisons . . . .”) (emphasis a dded). Moreover, the discretion provided to the BOP under the statute to decide whether to grant a sentence reduction, even after a prisoner successfully completes RDAP, has been explicitly recognized by both the Supreme Court and this Court. Lopez v. Davis , 531 U.S. 230, 241 (2001) (“When an eligible prisoner successfu lly completes drug treatment, the Bureau thus has the authority, but not the duty, . . . to reduce his term of imprisonment.”); Cort v. Crabtree , 113 F.3d 1081, 1085 (9th Cir. 1997) (“[E]ven when a statutorily eligible prisoner successfully completes th e treatment program, the Bureau retains discretion under the statute to grant or deny a sentence reduction.”). Therefore, even if success in Jiau’s Bivensaction would lead to her reinstatement into RDAP, that reinstatement, and her presumed su ccessful completion of the program, would still not “necessarily” result in a sent ence reduction and speedier release. Accordingly, the district court’s dismissal of Jiau’s Bivens action is vacated and remanded.

4Appeal No. 13-15378 is AFFIRMED . Appeal No. 13-0248 is VACATED and REMANDED . Each party shall bear its costs on appeal.

5