Menifee v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Carlon Melogro Menifee
v. 	Case No. 17-cv-346-JL
Warden, Federal Correctional
Institution, Berlin, New Hampshire
REPORT AND RECOMMENDATION
Carlon Melogro Menifee, formerly an inmate at the Federal
Correctional Institution, Berlin, New Hampshire, has filed a
petition for a writ of habeas corpus (Doc. No. 1) pursuant to 28
U.S.C. § 2241. 	Before the court is respondent’s dispositive
motion (Doc. No. 9), which the court converted into a motion for
summary judgment, see May 14, 2018 Order (Doc. No. 13).
Respondent’s motion (Doc. No. 9) contends that the § 2241
petition should be dismissed without prejudice as petitioner has
not exhausted his administrative remedies before the Federal
Bureau of Prisons (“BOP”).
Discussion
I. 	Standard
The standard applied in evaluating respondent’s motion is
set forth in Fed. R. Civ. P. 56: “[s]ummary judgment is
appropriate when the record shows that there is no genuine
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dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” 	Walker v. President & Fellows of
Harvard Coll., 840 F.3d 57, 61 (1st Cir. 2016) (citations and
internal quotation marks omitted). 	The evidence is “viewed in
the light most favorable to the nonmoving party . . . and all
reasonable inferences must be taken in that party’s favor.”
Harris v. Scarcelli (In re Oak Knoll Assocs., L.P.), 835 F.3d
24, 29 (1st Cir. 2016).
II. 	Exhaustion Requirement
The motion for summary judgment at issue (Doc. No. 9),
asserting petitioner’s failure to exhaust his BOP remedies,
relies on the Declaration of Cheryl Magnusson (Doc. No. 9-1)
(“Magnusson Declaration”). 	The Magnusson Declaration
demonstrates that petitioner has not exhausted any of the
available BOP remedies on his sentence calculation claim.
Petitioner does not dispute that fact. 	Rather, he argues that
exhaustion is not a prerequisite to his litigating a claim here
challenging the calculation of his sentence.
“Federal prisoners are ordinarily required to exhaust
available administrative remedies before seeking relief under
§ 2241.” 	Clark v. Allenwood, 665 F. App’x 136, 137 (3d Cir.
2016) (per curiam).
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Before appealing his sentence calculation, [petitioner]
must first seek administrative review through the BOP’s
Administrative Remedy Program. 	Once [petitioner] “has
exhausted his administrative remedies, he may file a pro se
petition for habeas relief under 28 U.S.C. § 2241,
challenging the BOP’s computation of his sentence.”
United States v. Rodriguez-Falcon, 710 F. App’x 242, 243 (5th
Cir. 2018) (per curiam) (citation omitted). 	A petitioner’s
failure to exhaust his BOP remedies deprives BOP of the
opportunity to resolve the errors, if any, in the calculation of
his sentence and to create a record for its decision. 	Clark,
665 F. App’x at 138. 	Because of the lack of exhaustion of BOP
remedies here, this court lacks access to information that may
be required to evaluate petitioner’s claims.
As it is undisputed that petitioner has not exhausted his
BOP remedies, the district judge should grant respondent’s
motion (Doc. No. 9). 	The § 2241 petition should thus be
dismissed without prejudice, so that petitioner may refile his
§ 2241 petition in a court with jurisdiction over his claims,1
after he exhausts his BOP remedies.
Any objection to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
1The BOP Inmate Locator indicates that petitioner has been
transferred to USP Lee, which is in the Western District of
Virginia.
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Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 22, 2018
cc: 	Carlon Melogro Menifee, pro se
Seth R. Aframe, Esq.
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