NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

:

GIFFORD THOMPSON, :

: Civil Action No. 11-4202 (JBS)

Petitioner, :

:

v. : O P I N I O N

 :

WARDEN DONNA ZICKEFOOSE, :

:

Respondent. :

________________________________:

APPEARANCES:

GIFFORD THOMPSON, Petitioner Pro Se

#18189-0160

FCI Fort Dix

P.O. Box 2000

Fort Dix, New Jersey 08640

SIMANDLE, District Judge

Petitioner Gifford Thompson, a federal prisoner currently

confined at the Federal Correctional Institution Fort Dix in Fort

Dix, New Jersey (“FCI Fort Dix”), submitted a petition for a writ

of habeas corpus, pursuant to 28 U.S.C. § 2241, on or about July 1

 Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions. 

* * *

(c) The writ of habeas corpus shall not extend to a

prisoner unless-... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States .... 

Case 1:11-cv-04202-JBS Document 5 Filed 12/22/11 Page 1 of 7 PageID: 19
22, 2011, challenging a prison disciplinary finding that resulted

in the loss of good conduct time. In particular, Petitioner asks

that the prohibited act Code 108 violation be changed to a lesser

Code 305 violation. The named respondent (hereinafter, the

“Government”) is Donna Zickefoose, Warden at FCI Fort Dix, where

Petitioner was confined at the time he filed this petition. 

Because it appears from a review of the submissions that

Petitioner did not attempt to exhaust his administrative remedies

before filing this petition, the petition will be dismissed

without prejudice accordingly.

BACKGROUND

Petitioner alleges that on April 8, 2011 he received an

incident report for a Code 108 violation, namely a cell phone

charge. On April 25, 2011, Petitioner appeared before the

Disciplinary Hearing Officer (“DHO”) for a hearing o the

incident. The DHO found Petitioner to have committed the

prohibited act Code 108. Petitioner argues here that the

violation should have been charged as a Code 305 violation. It

is plain from the face of the petition that Petitioner did not

exhaust his administrative remedies before bringing this action.

DISCUSSION

A. Standard of Review

United States Code Title 28, Section 2243 provides in

relevant part:

A court, justice or judge entertaining an 

application for a writ of habeas corpus shall forthwith

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award the writ or issue an order directing the

respondent to show cause why the writ should not be

granted, unless it appears from the application that the 

applicant or person detained is not entitled thereto.

The Court recognizes that a pro se pleading is held to less

stringent standards than more formal pleadings drafted by

attorneys. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v.

Kerner, 404 U.S. 519, 520 (1972). Thus, a pro se habeas petition

should be construed liberally and with a measure of tolerance. 

See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.

Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989). Because

Petitioner is proceeding pro se in his application for habeas

relief, the Court will accord his petition the liberal

construction intended for pro se litigants.

B. Exhaustion of Administrative Remedies

As an initial matter, this Court notes that Petitioner did

not fully exhaust his administrative remedies before filing this

habeas petition. Although 28 U.S.C. § 2241 contains no statutory

exhaustion requirement, a federal prisoner ordinarily may not

bring a petition for writ of habeas corpus under 28 U.S.C. §

2241, challenging the execution of his sentence, until he has

exhausted all available administrative remedies. See, e.g., 2

 To exhaust administrative remedies before the Federal 2

Bureau of Prisons, a federal inmate seeking review of an aspect

of his confinement must first seek to resolve the dispute

informally. See 28 C.F.R. § 542.13. If the inmate does not

receive a favorable termination, he may submit a formal written

Administrative Remedy Request for response by the warden of the

facility. See 28 C.F.R. § 542.14. If the inmate is not

satisfied with the warden’s response, he may appeal the warden’s

3

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Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v.

United States Parole Comm’n, 648 F.2d 196, 199 (3d Cir. 1981);

Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973). The

exhaustion doctrine promotes a number of goals:

(1) allowing the appropriate agency to develop a

factual record and apply its expertise facilitates

judicial review; (2) permitting agencies to grant the

relief requested conserves judicial resources; and (3)

providing agencies the opportunity to correct their own

errors fosters administrative autonomy.

Goldberg v. Beeler, 82 F. Supp.2d 302, 309 (D.N.J. 1999), aff’d,

248 F.3d 1130 (3d Cir. 2000). See also Moscato v. Federal Bureau

of Prisons, 98 F.3d 757, 761 (3d Cir. 1996). Nevertheless,

exhaustion of administrative remedies is not required where

exhaustion would not promote these goals. See, e.g., Gambino v.

Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required

where petitioner demonstrates futility); Lyons v. U.S. Marshals,

840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where

it “would be futile, if the actions of the agency clearly and

unambiguously violate statutory or constitutional rights, or if

the administrative procedure is clearly shown to be inadequate to

prevent irreparable harm”); Carling v. Peters, 2000 WL 1022959,

decision to the Regional Director within 20 days of the date of

the decision. If he is not satisfied with the Regional

Director’s response, he may submit an appeal of the Regional

Director’s decision to the Central Office within 30 days of the

date of the decision. See C.F.R. § 542.15. If these responses

are not received by the inmate within the time allotted for

reply, “the inmate may consider the absence of a response to be a

denial at that level.” 28 C.F.R. § 542.18.

4

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*2 (E.D. Pa. 2000) (exhaustion not required where delay would

subject petitioner to “irreparable injury”).

In Snisky v. Pugh, the petitioner did not deny his failure

to exhaust; however, the Court excused exhaustion because the

petitioner was scheduled to be released, and his claim was

clearly without merit. See 974 F. Supp. 817, 819 (M.D. Pa.

1997), rev’d on other grounds, 159 F.3d 1353 (3d Cir. 1998). The

court recognized that exhaustion could be excused where it would

be futile. See id. In Snisky, the court found that the BOP

“unequivocally” would deny the petitioner’s relief, and he would

return to the district court after the denial. Thus, the court

addressed the claims on the merits.

Likewise, in Ferrante v. Bureau of Prisons, the court found

that if the petitioner’s claim were meritorious, he would be

released to a halfway house relatively soon; therefore,

dismissing the petition for lack of exhaustion would be futile. 

See 990 F. Supp. 367, 370 (D.N.J. 1998)(citing Snisky, 974 F.

Supp. at 819-20). Further, the court held that the petitioner’s

claim was clearly without merit, so that the exhaustion issue

need not be reached. See id. See also Fraley v. Bureau of

Prisons, 1 F.3d 924, 925 (9th Cir. 1993)(stating that exhaustion

was not required because it was futile, as Regional Director

would “almost certainly” have denied request, and term of

imprisonment was completed).

5

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Here, Petitioner has not alleged any facts that would permit

this Court to find that exhaustion of administrative remedies

would have been futile or that exhaustion would have subjected

him to “irreparable injury.” Petitioner has not indicated an

imminent release date that would make full exhaustion in this

case futile. In fact, it is plain from the face of the petition

that Petitioner has not attempted to exhaust his administrative

remedies. In a letter received by the Court on September 12,

2011 (Docket entry no. 2), Petitioner informed the Court that he

was having difficulties pursuing his administrative remedies, but

he does not explain how he is being hindered from pursuing

administrative relief. Rather, he simply states that on August

3, 2011, court forms, such as an form application for indigent

status relative to this matter, were allegedly confiscated from

him and withheld. There is no mention that Petitioner has

followed the administrative remedy process before filing this

petition. 

Therefore, this Petition will be dismissed without prejudice

for failure to exhaust administrative remedies.

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IV. CONCLUSION

For the reasons set forth above, this Petition for habeas

relief under 28 U.S.C. § 2241 will be dismissed without prejudice

for failure to exhaust administrative remedies. An appropriate

order follows.

s/ Jerome B. Simandle 

JEROME B. SIMANDLE

United States District Judge

Dated: December 22, 2011

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