(HC) Rockett v. White ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES ROCKETT, Case No. 1:21-cv-00766-NONE-HBK 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION AS UNEXHAUSTED 13 v. AND MOOT 14 WARDEN WHITE, OBJECTIONS DUE WITHIN TWENTY-ONE DAYS 15 Respondent. (Doc. No. 1) 16 17 Petitioner James Rockett, a federal prisoner, initiated this action by filing a pro se petition 18 for writ of habeas corpus under 28 U.S.C. § 2241 on May 10, 2021. (Doc. No. 1, “Petition”). 19 Petitioner challenges the loss of his good time credits stemming from a November 2020 20 disciplinary action (1074087-R1). (Id. at 2). On June 4, 2021, the Court ordered Petitioner to 21 show cause why the Petition should not be dismissed as unexhausted and moot. (Doc. No. 9). 22 On June 14, 2021, Petitioner responded to the order to show cause. (Doc. No. 12). Petitioner 23 attaches a copy of the Discipline Hearing Officer Report (DHO Report: 3453242) related to the 24 subject disciplinary action. (Id. at 5-9). 25 Although the Petition states four claims for relief, each centers on one central argument: 26 the Bureau of Prisons violated Petitioner’s due process rights when it did not provide Petitioner 27 with a copy of his Discipline Hearing Officer Report finding him guilty of assault in a timely 28 manner, thereby causing Petitioner to lose his opportunity to timely appeal the disciplinary 1 hearing decision. (See generally Doc. No. 1). After being provided with notice of the charges 2 and hearing, and provided an opportunity to present witnesses and evidence, Petitioner was found 3 guilty of assault and was sanctioned to a loss of 27 days of good conduct time on December 9, 4 2020. (Doc. No. 12 at 5-9). On February 10, 2021, Petitioner submitted a regional administrative 5 remedy appeal (1074082-R1), appealing his finding of guilt for the November 2020 assault. 6 (Doc. 1 at 9). This appeal was received by the Western Regional Office on March 24, 2021. (Id.). 7 That same day, the Western Regional Office rejected Petitioner’s appeal as untimely and directed 8 Petitioner to provide staff verification that the untimeliness of Petitioner’s appeal was not his 9 fault. (Id.). On May 3, 2021, the unit manager at Petitioner’s prison issued a memorandum 10 stating that the Petitioner was provided with a copy of his appeal form on that same day. (Id. at 11 12). The memorandum states that “[s]hould [Petitioner] decide to move forward in the 12 Administrative Remedy Process, please consider [May 3, 2021] as the date used to establish a 13 new deadline.” (Id.). 14 In his response to the Court’s order to show cause, Petitioner attaches as an exhibit a new 15 memorandum dated May 21, 2021 which states that Petitioner was provided with a copy of the 16 Disciplinary Hearing Report on that same day. (Doc. No. 12 at 4). The memorandum states that 17 “[s]hould [Petitioner] decide to move forward in the Decision Appeal Process, please consider 18 [May 21, 2021] as the date used to establish a new deadline.” (Id.). 19 The Court interprets the May 21, 2021 memorandum as a second extension of time to 20 submit an appeal of his disciplinary sanction, thereby rendering his appeal process ongoing. 21 Accordingly, Petitioner again has not demonstrated that he has exhausted his administrative 22 remedies, as required. See Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (“Federal 23 prisoners are required to exhaust their federal administrative remedies prior to bringing a petition 24 for a writ of habeas corpus in federal court.”). 25 Petitioner argues that he will be subject to irreparable harm if the Court requires him to 26 exhaust his administrative remedies. (See Doc. No. 12 at 1-3). Petitioner states that without the 27 sanction of 27 days loss of good conduct credit, Petitioner’s release date would be on or about 28 1 July 16, 2021. (Id. at 2). Petitioner suggests that because the administrative appeal process will 2 not conclude before July 16, 2021, he is foreclosed the possibility of release on that date. (Id.). 3 The Court finds that Petitioner’s situation does not warrant this Court’s intervention. 4 Petitioner has been granted a second extension of his deadline to appeal the disciplinary hearing 5 decision and he must exhaust his administrative remedies prior to seeking relief in this Court. See 6 Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (“Federal prisoners are required to exhaust 7 their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in 8 federal court.”). Petitioner’s argument that his release is imminent does not excuse him from 9 satisfying the exhaustion requirement. Roux v. California Dep’t of Corr., No. 3:98-CV-794 CAL, 10 1998 WL 34366587 at *1 (N.D. Cal. March 31, 1998). Even if the Court were to excuse 11 Petitioner’s failure to exhaust, the Court would first give Respondent the opportunity to respond 12 to the petition before making any ruling on the merits of Petitioner’s claim. See R. Governing 13 2254 Petitions in the U.S. District Courts 4 (“If the petition is not dismissed, the judge must order 14 the respondent to file an answer, motion, or other response within a fixed time, or to take other 15 action the judge may order.”). Such briefing and a decision on the merits from this Court would 16 not be concluded before July 16, 2021. Moreover, because Petitioner has been given a chance to 17 file a timely appeal, his stated claim that he did not receive due process when he was prevented 18 from filing a timely appeal is now moot. 19 Accordingly, it is RECOMMENDED that the Petition (Doc. No. 1) be dismissed as 20 unexhausted and moot. 21 NOTICE TO PARTIES 22 These findings and recommendations will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 24 (21) days after being served with these findings and recommendations, a party may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendations.” Parties are advised that failure to file objections within the 27 28 1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. pated: June 16, 2021 Mihaw. Th fareh Zack 6 HELENA M. BARCH-KUCHTA 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28