Iler-Reyes v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jose Ulpiano Iler-Reyes
v. Civil No. 23-cv-553-SM-AJ
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Jose Ulpiano Iler-Reyes, proceeding pro se and in forma
pauperis, filed a petition pursuant to 28 U.S.C. § 2241, seeking
reinstatement of credits under the First Step Act (“FSA”) and
immediate transfer to a Residential Reentry Center. The Warden
moves to dismiss on the ground that Iler-Reyes did not exhaust
Federal Bureau of Prisons (“BOP”) administrative remedies.
Iler-Reyes objects. The motion to dismiss was referred to the
undersigned for a report and recommendation. See LR 72.1. For
the following reasons, the district judge should deny the motion
to dismiss.
Motion to Dismiss Standard
A respondent may file a pre-answer motion to dismiss a
habeas petition on the petitioner’s failure to exhaust BOP
remedies. See Rule 4, Rules Governing § 2254 Cases (“§ 2254
Rules”); see also § 2254 Rule 4 Adv. Comm. Notes to 1976
Adoption. “A court examines ‘a motion to dismiss a habeas
petition according to the same principles as a motion to dismiss
a civil complaint under Federal Rule of Civil Procedure
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12(b)(6).’” Walsh v. Boncher, 652 F. Supp. 3d 161, 164 (D.
Mass. 2023).
The court may dismiss a complaint if the plaintiff's
allegations, taken as true, do not state a claim for relief.
Fed. R. Civ. P. 12(b)(6). To avoid dismissal, the plaintiff
must allege facts that, if taken as true and with all reasonable
inferences drawn in the plaintiff’s favor, state a plausible
claim for relief. Burt v. Bd. of Trs. of Univ. Of R.I., 84
F.4th 42, 50 (1st Cir. 2023). In addition to the complaint, the
court may consider matters of public record and documents on
which the allegations in the complaint depend in considering a
motion to dismiss. Id.
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-
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cv-200-PB, 2024 DNH 006, 2024 WL 406563, at *6, 2024 U.S. Dist.
LEXIS 18343, at *16 (D.N.H. Feb. 2, 2024) (citation omitted).
The court considering a motion to dismiss on the basis of an
affirmative defense may not allocate burdens of proof “in a way
that is inconsistent with the rule that a plaintiff is not
required to plead, in a complaint, facts sufficient to overcome
an affirmative defense.” Schmidt v. Skolas, 770 F.3d 241, 251
(3d Cir. 2014) (to avoid dismissal, plaintiff was not required
to allege facts showing unequivocally that discovery rule
applied to avoid statute of limitations).
Background
Iler-Reyes is serving a prison sentence of 87 months with
60 months of supervised release, imposed by the United States
District Court for the Middle District of Florida in August
2019. See United States v. Iler-Reyes, No. 8:19-cr-32-CEH-AAS,
2022 U.S. Dist. LEXIS 160515, at *1 (M.D. Fla. Sep. 6, 2022)
(discussing procedural history). He alleges that while
incarcerated he has earned a total of 745 days of credit under
the FSA. According to the Bureau of Prison (“BOP”) Online
Inmate Locator, Iler-Reyes’s projected release date is March 30,
2025.1 Iler-Ryes alleges that with the FSA credits he would have
1 The BOP Online Inmate Locator is self-authenticating, and
the information it conveys is properly the subject of judicial
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been placed in a Residential Reentry Center in 2023 and would be
released in March 2024.
Iler-Reyes alleges that on November 16, 2023, he met with a
Deportation Officer at FCI Berlin and received a “Notice and
Order of Expedited Removal.” After receiving that notice, the
prison notified Iler-Reyes that he had lost all FSA credits and
his release date was changed as a result. Iler-Reyes contends
that determination was incorrect because the notice he received
was not a Final Order of Removal. He acknowledges that he has
not exhausted administrative remedies, and he asserts that he
has no time left to complete the administrative remedy process
as he should already be in a Residential Reentry Center and
should be released in March 2024.
Discussion
The Warden moves to dismiss the petition because Iler-Reyes
stated in the § 2241 petition that he did not exhaust
administrative remedies. Iler-Reyes argues in the petition,
however, that the court should waive the exhaustion requirement
in his case because if his FSA credits were counted, he would
have been released to a Residential Reentry Center and
administrative exhaustion would cause irreparable harm. The
notice. See Fed. R. Evid. 201(b)(2), 902(5); United States v.
Rivera, 466 F. Supp. 3d 310, 313 (D. Conn. 2020).
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Warden asserts that Iler-Reyes’s “bare assertions” in his
petition are not enough to support application of an exception
to administrative exhaustion.
Federal common law imposes a requirement that § 2241
petitioners exhaust administrative remedies. Rogers v. United
States, 180 F.3d 349, 358 (1st Cir. 1999); Calderon Hernandez v.
Warden FMC Devens, No. 23-11330-MPK, 2023 WL 5939634, at *4,
2023 U.S. Dist. LEXIS 161096, at *8 (D. Mass. Sept. 12, 2023).
Courts have recognized exceptions to the exhaustion requirement,
including “where exhaustion would be futile or inadequate to
prevent irreparable harm.” Calderon Hernandez, 2023 WL 5939634,
at *4, 2023 U.S. Dist. LEXIS 161096, at *9. The petitioner
bears the burden of showing that an exception applies. Id.
Iler-Reyes alleges that he has no time left to exhaust
administrative remedies. He asserts that he learned about his
alleged ineligibility for FSA earned time credits in November
2023, after he already should have been released to a
Residential Reentry Center and only months before his projected
date of release, based on his FSA credits.
The Warden first challenges Iler-Reyes’s argument in favor
of waiving the exhaustion requirement on the ground that he did
not provide sufficient factual allegations to show that his
release date is imminent. Because the Warden chose to move to
dismiss the petition, rather than moving for summary judgment,
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the court takes Iler-Reyes’s factual allegations as true and may
also consider facts that are subject to judicial notice.
According to the BOP, Iler-Reyes’s release date (without FSA
credits) is March 30, 2025. Iler-Reyes alleges, and the Warden
does not dispute, that he earned 735 days of FSA credits, which
he alleges would give him 365 days toward early release to
supervised release and 370 days toward placement in a
Residential Reentry Center.2 Doc. no. 1, at 1. He alleges that
he would now be in a Residential Reentry Center if the FSA
credits had not been taken away, and based on his calculations,
he would be within days of release from BOP custody at this
time. He further asserts that his release date would be upon
him before he could complete the process of exhausting his BOP
remedies. And Iler-Reyes alleges, without contradiction, that
he cannot provide proof of the number of FSA credits he has
earned because he was told no BOP staff member was allowed to
provide copies of the necessary documents to prisoners. Iler-
Reyes’s allegations are sufficient to support his assertion of a
futility or irreparable harm exception to the exhaustion
requirement based on the imminence of his release date.
In a footnote, the Warden raises a question as to whether
the proximity of a prisoner’s release date can provide grounds
2 See also 18 U.S.C. § 3624(g)(3); 28 C.F.R. § 523.44(d)(3).
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for the court to waive the exhaustion requirement.3 The First
Circuit Court of Appeals has not addressed the issue. Other
courts have reached mixed results. See, e.g., Arellano-Ortiz v.
Quintana, No. 23-06290-ADS, 2024 WL 648683, at *3 (C.D. Cal.
Jan. 5, 2024) (waiving exhaustion); Brown v. Rieger, No. 2:22-
cv-0259-JAW, 2022 WL 17082097, at *6, 2022 U.S. Dist. LEXIS
209245, at *16 (D. Me. Nov. 18, 2022) (waiving exhaustion in
part because “administrative process alone was likely to take
ninety days,” exceeding petitioner’s release date), R&R adopted,
2022 WL 17184294, 2022 U.S. Dist. LEXIS 212189 (D. Me. Nov. 23,
2022), appeal filed, No. 22-1945 (1st Cir. Dec. 1, 2022); Nelson
v. Cox, No. 20-cv-04199-KES, 2021 WL 1221178, at *2, 2021 U.S.
Dist. LEXIS 64041, at *4 (D.S.D. Apr. 1, 2021) (waiving
exhaustion because petitioner “is allegedly already entitled to
be released”); Stiger v. Haynes, No. 2:13-CV-00025-SWW-JJV, 2013
WL 3965425, at *2, 2013 U.S. Dist. LEXIS 107292, at *3 (E.D.
Ark. July 9, 2013) (exhaustion futile, as “it would take a
prisoner a minimum of ninety days to complete the [BOP]
administrative remedy exhaustion process, and the process could
take as long as 160 days”), R&R adopted, 2013 WL 3965425, 2013
U.S. Dist. LEXIS 107282 (E.D. Ark. July 31, 2013). But see,
3 The Warden acknowledges that whether the temporal
proximity of a petitioner’s release may be an exception to the
exhaustion requirement is not established.
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e.g., Mirafuentes-Valez v. Warden, FCI Elkton, No. 23-cv-1289,
2024 WL 872283, at *3 (N.D. Ohio Jan. 29, 2024) (imminent
release did not support waiver); Ramirez-Carranza v. Stone, No.
CV 322-054, 2022 WL 16641892, at *2, 2022 U.S. Dist. LEXIS
200859, at *7 (S.D. Ga. Oct. 3, 2022) (same), R&R adopted, 2022
WL 16640001, 2022 U.S. Dist. LEXIS 199671 (S.D. Ga. Nov. 2,
2022); see also Dejapa v. Derr, No. 23-CV-00090 JAO-KJM, 2023 WL
2758890, at *5, 2023 U.S. Dist. LEXIS 57912, at *12 (D. Haw.
Apr. 3, 2023) (declining to waive exhaustion in part because of
possibility that “administrative remedies process could have
been completed before the date [petitioner] believes she is
entitled to release”).
In the particular circumstances that Iler-Reyes presents,
where the court takes as true each of his 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, the Warden has not
demonstrated that the § 2241 petition’s allegations establish
conclusively all elements of the affirmative defense of
exhaustion, as well as the unavailability of any exception to
the exhaustion requirement. Accordingly, the district judge
should deny the motion to dismiss.
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Conclusion
For the foregoing reasons, the district judge should deny
the Warden’s motion to dismiss (Doc. No. 6). Any objections to
this Report and Recommendation must be filed within fourteen
days of receipt of this notice. The objection period may be
extended upon motion. Failure to file any objection 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). 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.’” Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 3, 2024
cc: Jose Ulpiano Iler-Reyes, pro se.
Anna Dronzek, Esq.
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