United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges, United States Magistrate Judge
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].
carefully considered the parties' submissions and the
record in this case, the undersigned recommends that the
court grant Respondent's motion to dismiss.
Factual and Procedural Background
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.
Standard on Motion to Dismiss
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).
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.
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
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).
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 ...