Deras Lopez v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jose Daniel Deras Lopez
v. 	Case No. 23-cv-552-LM-TSM
FCI Berlin, Warden
REPORT AND RECOMMENDATION
Petitioner Jose Daniel Deras Lopez, a federal prisoner presently housed at FCI Oxford and
proceeding pro se, filed this petition for habeas corpus relief under 28 U.S.C. § 2241 while he was
a prisoner at FCI Berlin. 	Deras Lopez asks the court to direct the respondent, the FCI Berlin
Warden, to apply credits he asserts he earned under the First Step Act, 18 U.S.C. § 3632(d)(4),
toward early release and transfer to a residential reentry center or home confinement. 	In his
petition, Deras Lopez argues that the Bureau of Prisons (“BOP”) wrongly refuses to apply his
credits toward early release or transfer based on an illegal “Notice and Order of Expedited
Removal.”
The Warden moves to dismiss on two bases, arguing (1) that the court lacks jurisdiction
over Deras Lopez’s petition because the BOP transferred him to another federal facility outside
the District of New Hampshire, and (2) that Deras Lopez failed to exhaust his administrative
remedies. 	Doc. no. 5. 	Deras Lopez did not file an objection.1 	For the following reasons, the
district judge should deny the Warden’s motion to dismiss.
1 A court may apply a local rule deeming a nonmovant’s failure to object to be a waiver of any
objection, if the dismissal would not offend equity and the local rule does not conflict with any
provision of the Federal Rules of Civil Procedure. See NEPSK, Inc. v. Town of Houlton, 283 F.3d
1, 7 (1st Cir. 2002). Although Deras Lopez failed to file any objection to the Warden’s motion to
dismiss, the court declines to apply LR 7.1(b) in this circumstance, in light of the petitioner’s pro
se and incarcerated status, the nature of the motion, the lack of any prior court order specifically
alerting this petitioner to the risk of dismissal if he did not object, and the petitioner’s filings and
payment of the filing fee in April and May 2024 indicating that he has not abandoned this case.
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BACKGROUND
In 2017, Deras Lopez was convicted in the Middle District of Florida for drug-trafficking
offenses and sentenced to 120-months imprisonment. See United States v. Deras Lopez, No. 17-
13848, 733 Fed. Appx. 520, 521-22 (11th Cir. May 25, 2018). In his § 2241 petition, Deras Lopez
alleges that he earned a total of 855 days of First Step Act credits, 365 of which should apply
toward early release and 490 of which should apply toward placement in a residential reentry
center or home confinement. BOP records indicate that Deras Lopez’s release date, without the
application 	of 	any 	FSA 	time 	credits, 	is 	October 	10, 	2025. 	BOP 	Inmate 	Locator,
https://www.bop.gov/inmateloc/ (last visited July 23, 2024).2 Deras Lopez alleges that with his
FSA credits he would have been placed in a residential reentry center in 2023.
When Deras Lopez filed his petition in December 2023, the BOP held him at FCI Berlin,
a federal prison located within the District of New Hampshire. 	In his motion to dismiss, the
Warden represented that, since that time, the BOP transferred Deras Lopez to the Oklahoma City
Federal Transfer Center. The BOP now holds Deras Lopez at FCI Oxford, a federal prison within
the Western District of Wisconsin. Id. Deras Lopez did not use the BOP’s administrative remedies
to seek application of earned First Step Act time credits to his sentence.
LEGAL STANDARD
The court addresses a motion to dismiss a petition under § 2241 using the same principles
as a motion to dismiss a civil complaint under Federal Rule of Civil Procedure 12(b)(6). 	Iler-
Reyes v. Warden, FCI Berlin, No. 23-cv-553-SM-AJ, 2024 WL 1773616, at *1, 2024 U.S. Dist.
LEXIS 76892 (D.N.H. Apr. 3, 2024) (citing Walsh v. Boncher, 652 F. Supp. 3d 161, 164 (D. Mass.
2 The information in the BOP Online Inmate Locator is self-authenticating and properly the subject
of judicial notice. See Fed. R. Evid. 201(b)(2); United States v. Rivera, 466 F. Supp. 3d 310, 313
(D. Conn. 2020).
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2023)), R&R adopted, 2024 WL 1770776, 2024 U.S. Dist. LEXIS 74280 (Apr. 24, 2024). Under
the Rule 12(b)(6) standard, the court must analyze whether a complaint contains enough “factual
matter” to show that the petitioner has a plausible entitlement to relief under the prevailing law.
See Burt v. Bd. of Tr. of Univ. of R.I., 84 F.4th 42, 50 (1st Cir. 2023). In evaluating whether the
petitioner pleaded a plausible entitlement to relief, the court must accept his factual allegations as
true, and it must draw all reasonable inferences in his favor. See id. (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). Generally, the court may consider only the facts alleged in the petition,
exhibits attached to it, and other materials that are fairly incorporated or are subject to judicial
notice such as matters of public record. Lowe v. Mills, 68 F.4th 706, 713-14 (1st Cir. 2023); see
Butler v. Balolia, 736 F.3d 609, 611 (1st Cir. 2013). Additionally, as a pro se litigant, Deras Lopez
is entitled to a liberal construction of his pleadings. 	See Erickson v. Pardus, 551 U.S. 89, 94
(2007).
Exhaustion of BOP remedies is an affirmative defense. 	“Where a court grants a Rule
12(b)(6) . . . motion based on an affirmative defense, the facts establishing that defense must: (1)
be ‘definitively ascertainable from the complaint and other allowable sources of information,’ and
(2) ‘suffice to establish the affirmative defense with certitude.’” Gray v. Evercore Restructuring
L.L.C., 544 F.3d 320, 324 (1st Cir. 2008) (citation omitted). “In other words, before a motion to
dismiss can be granted on the basis of an affirmative defense, the [petitioner] must ‘affirmatively
plead himself out of court’ by alleging ‘everything necessary to satisfy the affirmative defense.’”
Urena v. Travelers Cas. & Sur. Co. of Am., No. 22-cv-200-PB, 2024 DNH 006, 2024 WL 406563,
at *6, 2024 U.S. Dist. LEXIS 18343 (D.N.H. Feb. 2, 2024).
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DISCUSSION
The Warden argues that the court lacks jurisdiction over Deras Lopez’s petition because
he was transferred to a prison in another district and that Deras Lopez failed to exhaust his
administrative remedies. As noted, Deras Lopez did not file an objection.
I. 	Jurisdiction
The proper respondent in a petition for habeas corpus brought under 28 U.S.C. § 2241 is
the person who has immediate physical custody over the petitioner. See Rumsfeld v. Padilla, 542
U.S. 426, 435-36 (2004). And to issue a writ of habeas corpus, the court must “have jurisdiction
over the custodian.” Padilla, 542 U.S. at 442 (quoting Braden v. 30th Judicial Circuit Ct. of Ky.,
410 U.S. 484, 495 (1973)). 	In this case, the FCI Berlin Warden was Deras Lopez’s immediate
physical custodian when he filed the petition, but the BOP transferred Deras Lopez to another
federal facility, meaning that the FCI Berlin Warden no longer has immediate physical custody
over him.
Although the First Circuit has not addressed the issue, several courts – including several
other courts of appeals and judges in the Districts of New Hampshire and Massachusetts – have
found that district courts are not divested of jurisdiction despite a petitioner’s transfer to another
federal facility (and different immediate physical custodian) if jurisdiction properly attached when
the inmate filed his § 2241 petition. See, e.g., Cummings v. Warden, FCI Berlin, No. 22-cv-468-
SM-AJ, 2024 WL 1256068, at *3-*4, 2024 U.S. Dist. LEXIS 52038 (D.N.H. Mar. 25, 2024)
(collecting cases, including opinions from the Third, Seventh, Ninth, and Tenth Circuits); Yancey
v. Warden, FMC Devens, 682 F. Supp. 3d 97, 100 (D. Mass. 2023); Fox v. Warden, FCI Berlin,
No. 21-cv-158-SE, 2022 DNH 051, 2022 WL 1085311, 2022 U.S. Dist. LEXIS 66766 (D.N.H.
Apr. 11, 2022); accord Jones v. FCI Berlin, No. 21-cv-767-SE, 2023 DNH 019, 2023 WL
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2186459, 2023 U.S. Dist. LEXIS 29800 (D.N.H. Feb. 22, 2023); see also Ex parte Endo, 323 U.S.
283, 304-06 (1944) (holding that when the government moves a habeas petitioner after he properly
files a petition naming his immediate custodian, the district court retains jurisdiction and may
direct a writ of habeas corpus to a respondent in its jurisdiction who has the legal authority to
effectuate the petitioner’s release). In short, there is “substantial persuasive authority supporting
the conclusion that the court retains jurisdiction over [the prisoner’s] petition, despite his recent
transfer to another district,” Cummings, 2024 WL 1256068, at *4, because the court may direct
the writ to “any respondent within its jurisdiction who has legal authority to effectuate the
prisoner’s release.” Fox, 2022 WL 1085311, at *3 (quoting Endo, 323 U.S. at 304-07).
As in Cummings and Fox, this court obtained subject matter jurisdiction over Deras
Lopez’s petition and over the respondent FCI Berlin Warden, in his official capacity, when Deras
Lopez filed the case at the time the Warden was his immediate physical custodian. See 28 U.S.C.
§§ 2241(a), 2243. And because the BOP, operating through the Warden, remains present in this
district with legal authority to effectuate Deras Lopez’s release, Deras Lopez’s subsequent transfer
to a federal facility located in another district does not divest this court of jurisdiction to grant
relief. See Cummings, 2024 WL 1256068, at *3-*4; Fox, 2022 WL 1085311, at *3.
II. 	Exhaustion of Administrative Remedies
The Warden also contends that even if the court retains jurisdiction, Deras Lopez failed to
exhaust his administrative remedies, which requires dismissal. 	In his petition, Deras Lopez
conceded that he did not exhaust administrative remedies but asserted that he should be excused
because he lacks sufficient time prior to his release to request relief through the BOP’s
administrative process. 	He further asserts that exhausting remedies would be futile because the
administrative body charged with evaluating his claims is biased or will predetermine the issue.
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Federal common law imposes an administrative remedy exhaustion requirement on § 2241
petitions. E.g., Rogers v. United States, 180 F.3d 349, 358 (1st Cir. 1999); Iler-Reyes, 2024 WL
1773616, at *2. Courts have recognized exceptions to the common-law administrative exhaustion
requirement for futility and inadequacy to prevent irreparable harm. 	Iler-Reyes, 2024 WL
1773616, at *2. 	As noted in similar cases, the First Circuit has not addressed “whether the
proximity of a prisoner’s release date can provide grounds for the court to waive the exhaustion
requirement” and “[o]ther courts have reached mixed results.” Id. at *3 (collecting cases). In Iler-
Reyes, the court denied a motion to dismiss premised on failure to exhaust administrative remedies
after taking “as true each of [the petitioner’s] assertions including the timing and likelihood of his
placement in a Residential Reentry Center, his FSA credits, his release date, and the time it would
take to exhaust BOP remedies . . . .” Id.
Deras Lopez’s petition is premised on substantially similar allegations and circumstances
as the petition in Iler-Reyes. See id. at *1-*2. Therefore, at this early stage the Warden has not
established conclusively all elements of the affirmative defense of exhaustion.
CONCLUSION
The district judge should deny the Warden’s motion to dismiss (doc. no. 5). Any objections
to this Report and Recommendation must be filed within 14 days of receipt of this notice. 	See
Fed. R. Civ. P. 72(b)(2). The objection period may be extended upon motion. Only those issues
raised in the written objections “are subject to review in the district court,” and any issues “not
preserved by such objection are precluded on appeal.” Santos-Santos v. Torres-Centeno, 842 F.3d
163, 168 (1st Cir. 2016) (citations omitted).
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Talesha L. Saint-Marc
United States Magistrate Judge
July 29, 2024
cc: 	Jose Daniel Deras Lopez, pro se
Counsel of Record
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