Benjamin Schwarz v. Erwin Meinberg ( 2012 )

FILED
NOT FOR PUBLICATION MAY 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BENJAMIN SCHWARZ, No. 11-56114
Petitioner - Appellant, D.C. No. 5:10-cv-01728-MMM
v.
MEMORANDUM *
ERWIN MEINBERG, Acting Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Federal prisoner Benjamin Schwarz appeals pro se from the district court’s
judgment dismissing his 28 U.S.C. § 2241 habeas petition. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Schwarz’s habeas petition challenges the Bureau of Prisons’ refusal, on the
basis of his Canadian nationality, to designate him to serve his sentence in a prison
camp. He further asserts that unsanitary toilet conditions at his prison facility
violate the Eighth Amendment. We need not resolve whether the district court
properly dismissed the petition without prejudice on the basis that the claims
should have been brought in an action under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In either case, Schwarz was
required to exhaust his administrative remedies before proceeding with his claims
in federal court. See Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir. 1991)
(Bivens action); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (per
curiam) (§ 2241 petition). Schwarz has not exhausted his administrative remedies
with respect to his camp designation claim because he failed to complete his final
administrative appeal to the General Counsel, see 28 C.F.R. § 542.15(a), and has
not exhausted his remedies for his toilet conditions claim because he failed to
proceed beyond the informal staff resolution stage, see id. § 542.13(a). We
therefore affirm the district court’s dismissal of Schwarz’s petition without
prejudice. See Manta v. Chertoff, 518 F.3d 1134, 1146 (9th Cir. 2008) (appellate
court may affirm on any ground supported by the record).
Schwarz further contends that the district court erred by permitting
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respondent to file a motion to dismiss his petition rather than an answer, and by
permitting a time limit exceeding the limits specified in 28 U.S.C. § 2243. This
contention fails. See Rule 4 of the Rules Governing § 2254 Cases (Rule 4) (unless
a habeas petition is summarily dismissed, “the judge must order the respondent to
file an answer, motion, or other response within a fixed time”); White v. Lewis, 874
F.2d 599, 602 (9th Cir. 1989) (Rule 4 permits the filing of a motion to dismiss a
habeas petition); Clutchette v. Rushen, 770 F.2d 1469, 1474-75 (9th Cir. 1985)
(Rule 4 contains no fixed time requirement and gives district courts discretion to
set appropriate deadlines for responses to habeas petitions).
Schwarz’s requests for attorney’s fees, costs, sanctions, and the initiation of
disciplinary proceedings against respondent’s counsel are denied.
AFFIRMED.
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