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Chestnut v. Mosley

United States District Court, D. South Carolina

May 2, 2018

Raymond Chestnut, #13465-171, Petitioner,
v.
Bonita Mosley, Warden, Respondent.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges, United States Magistrate Judge

         Raymond Chestnut (“Petitioner”) is a federal inmate housed at the Federal Correctional Institution in Edgefield, South Carolina, a facility of the federal Bureau of Prisons (“BOP”). He filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion to dismiss. [ECF No. 18]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 19]. Petitioner filed a timely response on March 29, 2018. [ECF No. 21].

         Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's motion to dismiss.

         I. Factual and Procedural Background

         Petitioner filed this § 2241 petition alleging he is being deprived of due process. [ECF Nos. 1 at 6; 1-2 at 8]. Petitioner claims a permanency planning/termination of parental rights hearing was scheduled for April 5, 2018, at 8:30 a.m. in the Horry County Family Court. Id. at 7. Petitioner contends he had a right to be physically present at the hearing, and argues his parental rights will likely be terminated if he does not appear. [ECF Nos. 1-2 at 8; 21 at 2]. Petitioner asks the court to order the BOP to transport him to Horry County so he can be present for the April 5, 2018, hearing. Id. at 9.

         II. Discussion

         A. Standard on Motion to Dismiss

         To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support” the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

         Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

         B. Analysis

         Respondent contends Petitioner did not file any administrative remedies related to his state court hearing, and therefore his petition is not ripe for judicial review. [ECF No. 18 at 5-6].[1]

         Petitioner is required to exhaust his administrative remedies within the BOP before submitting a § 2241 petition in this case. Although § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in 28 U.S.C. § 2241 matter); McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (“Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions.”). This requirement of exhaustion allows prison officials to develop a factual record and “an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). Exhaustion of administrative remedies may be excused under certain circumstances, such as by showing futility. United States v. Strickland, No. 7:98-CR-82-5-F(1), 2004 WL 3414644, at *1 (E.D. N.C. Aug. 9, 2004), aff'd, 126 Fed.Appx. 116, 117 (4th Cir. 2005).

         Petitioner concedes he did not exhaust his administrative remedies, but argues his failure to exhaust should be excused due to futility. [ECF No. 21 at 2]. Petitioner alleges he did not find out about the April 5, 2018 hearing until November 14, 2017. Id. Petitioner states he believed he did not have sufficient time to complete the administrative remedy process before his hearing took place and he therefore chose not to pursue his remedies. Id. Petitioner, however, did not even begin the administrative remedy process. Id. Accordingly, his belief that the BOP would not have timely ruled on his administrative remedies is unsupported and therefore insufficient to excuse his failure to exhaust. See Thetford Prop. IV Ltd. P'ship v. U.S. Dep't of Hous. & Urban Dev., 907 F.2d 445, 450 (4th Cir. 1990) (explaining that allowing a petitioner to avoid the administrative process based on a mere conclusory assertion “would allow the futility exception to swallow the exhaustion rule”); Yannucci v. Stansberry, Action No. 2:08CV561, 2009 WL 2421546, *3 (E.D. Va. Jul. 28, 2009) (finding that inmate's claim that “he ran out of time to complete the administrative exhaustion process prior to filing his petition is not a sufficient excuse for failing to exhaust his ...


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