Cartwright v. Outlaw , 293 F. App'x 324 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 19, 2008
No. 07-40803
Summary Calendar Charles R. Fulbruge III
Clerk
PURVIS RAY CARTWRIGHT
Petitioner-Appellant
v.
T C OUTLAW, Warden
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05-CV-797
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Purvis Ray Cartwright, federal inmate # 59478-079, appeals the dismissal
without prejudice of his 28 U.S.C. § 2241 petition for failure to exhaust
administrative remedies. Cartwright challenged a prison disciplinary hearing
and the resulting loss of good time credit. This court reviews a district court’s
dismissal of a § 2241 petition for failure to exhaust administrative remedies for
an abuse of discretion. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-40803
Cartwright first argues that he did exhaust his administrative remedies.
However, Cartwright’s appeal to National Inmate Appeals Administrator,
despite the Regional Director’s order for a rehearing, did not exhaust his
administrative remedies. If an “agency has offered to reexamine its decision it
should be permitted to do so.” Smith v. Thompson, 937 F.2d 217, 219 (5th Cir.
1991). Cartwright’s administrative appeals following the rehearing also do not
show exhaustion because the rehearing and subsequent administrative appeals
all occurred after he had filed his § 2241 petition. See Fuller, 11 F.3d at 62.
Cartwright also argues that exhaustion should be excused because the
extensive delay in scheduling the rehearing suggests that exhaustion would be
futile and because the administrative process was biased against him.
Exceptions to the exhaustion requirement arise when “available administrative
remedies either are unavailable or wholly inappropriate to the relief sought, or
where the attempt to exhaust such remedies would itself be a patently futile
course of action.” Fuller, 11 F.3d at 62 (internal quotation marks and citation
omitted). These exceptions “apply only in extraordinary circumstances,” and the
petitioner bears the burden of establishing that administrative review would be
futile. Id. The fact that Cartwright did successfully appeal to the Regional
Director following his first hearing demonstrates that the review process was not
“unavailable,” “inappropriate,” or “patently futile.” See id.
The judgment of the district court is AFFIRMED.
2