UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

ELVIN DANIELS,

Petitioner, Case Number 09-11497-BC

Honorable Thomas L. Ludington

v.

CHRISTOPHER ZYCH,

Respondent.

_______________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL WITHOUT PREJUDICE

Petitioner Elvin Daniels is a federal inmate incarcerated at the Federal Correctional

Institution in Milan, Michigan (“FCI-Milan”). Petitioner was convicted in a proceeding before the

Honorable Victoria A. Roberts of conspiracy to possess with intent to distribute a controlled

substance in violation of 21 U.S.C. § 841(a). He was sentenced to forty months imprisonment. On

or about April 21, 2009, Petitioner filed a pro se habeas corpus petition pursuant to 28 U.S.C. §

2241, challenging his expulsion from a drug rehabilitation program offered by the Federal Bureau

of Prisons.

Generally, § 2241 provides an avenue for prisoners to challenge official action affecting

execution of a sentence, such as the computation of sentence credits or parole eligibility. See United

States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1999) (“[A]n attack upon the execution of a sentence

is properly cognizable in a 28 U.S.C. § 2241(a) habeas petition.”). A federal prisoner challenging

the administration of a prison’s residential drug abuse program may do so by filing a habeas petition

under 28 U.S.C. § 2241. See Sesi v. U.S. Bureau of Prisons, 238 F.3d 423 (table) (6th Cir. Dec. 7,

2000) (affirming district court’s treatment of a complaint challenging administration of a drug abuse

program as a § 2241 habeas corpus petition).

1:09-cv-11497-TLL-CEB Doc # 4 Filed 01/14/10 Pg 1 of 4 Pg ID 31
-2-

Upon the filing of a habeas corpus petition, the Court must promptly examine the petition

to determine “if it plainly appears from the face of the petition and any exhibits annexed to it that

the petitioner is not entitled to relief.” Rule 4, Rules Governing Section 2254 cases. See also Rule

1(b), Rules Governing Section 2254 Cases (allowing for application of rules to § 2241 petitions).

If the Court determines that the petitioner is not entitled to relief, the Court shall summarily dismiss

the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to

dismiss summarily any habeas petition that appears legally insufficient on its face.”).

A petitioner must exhaust administrative remedies before seeking federal habeas corpus

relief pursuant to 28 U.S.C. § 2241. Little v. Hopkins, 638 F.2d 953, 954 (6th Cir. 1981). See

also Watts v. Bogan, 50 F.3d 11 (table) (6th Cir. Mar. 14, 1995). The petitioner bears the burden

of establishing exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Caver v. Straub, 349 F.3d

340, 345 (6th Cir. 2003). Yet, “[a] prisoner’s failure to exhaust available . . . administrative

remedies may be excused where pursuing such remedies would be futile or unable to afford the

petitioner the relief he seeks.” Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2006).

As explained below, Petitioner has not exhausted his administrative remedies, nor has he

demonstrated that exhaustion would be futile. Thus, his petition will be dismissed without prejudice.

On May 15, 2008, Petitioner began to participate in the Residential Drug Abuse Program

(“RDAP”) at FCI-Milan. Upon successful completion of the RDAP, the Bureau of Prisons may

grant the inmate a reduction in his or her sentence of up to one year. See 18 U.S.C. § 3621(e)(1).

Petitioner asserts that he was expelled from the RDAP after completing approximately seventy-five

percent of the program. Petitioner contends that his expulsion was not motivated by his alleged

misconduct, but by his wife’s allegations that she was sexually harassed by a corrections officer

1:09-cv-11497-TLL-CEB Doc # 4 Filed 01/14/10 Pg 2 of 4 Pg ID 32
-3-

when she came to visit Petitioner. Petitioner admits that he has not exhausted his administrative

remedies, but asks the Court to excuse his failure because exhaustion would be futile. He contends

that the pending investigation of his wife’s claims of sexual harassment will prevent him from

receiving fair consideration of his claim.

Notably, an administrative remedy is available for Petitioner to challenge his removal from

the program under 28 C.F.R. §§ 542.10–542.16. First, a prisoner may submit a complaint to

institutional staff. If the problem is not resolved, 28 C.F.R. §§ 542.13(a) and (b) allow a prisoner

to file a formal request for an administrative remedy with the warden of the prison. Thereafter, a

prisoner may file an appeal to the Regional Director and General Counsel in the central office. 28

C.F.R. § 542.14. “An inmate has not fully exhausted his administrative remedies until he has

appealed through all three levels.” See Irwin v. Hawk, 40 F.3d 347, 349 n.2 (11th Cir. 1994).

Petitioner provides only a conclusory assumption that his complaint could not be fairly resolved

through the administrative appeals process because of the ongoing sexual harassment investigation.

This conclusory assumption is insufficient for the Court to conclude that exhaustion would be futile.

Accordingly, it is ORDERED that the petition for writ of habeas corpus [Dkt. # 1] is

DISMISSED WITHOUT PREJUDICE.

It is further ORDERED that Petitioner’s emergency motion for expedited hearing and

interim relief [Dkt. # 2] is DENIED AS MOOT.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: January 14, 2010

1:09-cv-11497-TLL-CEB Doc # 4 Filed 01/14/10 Pg 3 of 4 Pg ID 33
-4-

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on January 14, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS

1:09-cv-11497-TLL-CEB Doc # 4 Filed 01/14/10 Pg 4 of 4 Pg ID 34