James D. Luedtke v. David Berkebile

*The Honorable Peter C. Economus, Senior United States District Judge for the Northern District
of Ohio, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0020p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J AMES D. LUEDTKE ,
Petitioner-Appellant,
v.
DAVID BERKEBILE ,
Respondent-Appellee.
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No. 12-5656
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville.
No. 7:12-cv-00044—Karen K. Caldwell, District Judge.
Decided and Filed: January 16, 2013
Before: SUTTON and DONALD, Circuit Judges; ECONOMUS, District Judge.*
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COUNSEL
ON BRIEF: James Luedtke, Inez, Kentucky, pro se.
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OPINION
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SUTTON, Circuit Judge. James Luedtke, a pro se federal prisoner, appeals the
district court’s judgment dismissing without prejudice his petition for a writ of habeas
corpus under 28 U.S.C. § 2241. We affirm the district court’s decision on his first three
claims, vacate it on his fourth claim and remand for further proceedings.
On May 7, 2012, Luedtke filed a § 2241 petition in the United States District
Court for the Eastern District of Kentucky, alleging that prison officials (1) violated his
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Thirteenth Amendment rights by refusing to pay him the wages he earned in his prison
job, (2) failed to require all inmates to work, (3) discriminated against white inmates in
favor of black inmates and “illegal aliens from Mexico,” and (4) improperly placed him
on refusal status for the Inmate Financial Responsibility Program. Luedtke sought
injunctive relief and asked the court to appoint him counsel. The district court dismissed
Luedtke’s petition under its screening authority before the government filed a response.
See 28 U.S.C. § 2243.
The district court properly dismissed without prejudice Luedtke’s first three
claims because § 2241 is not the proper vehicle for a prisoner to challenge conditions of
confinement. See Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (holding that the
district court should dismiss the § 2241 claim without prejudice so the state petitioner
could re-file as a § 1983 claim); Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir.
2004) (construing conditions-of-confinement claims as properly brought in a civil action
under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 408 U.S. 388
(1971)). The district court was also right to conclude that Luedtke’s fourth claim is
cognizable under § 2241 as a challenge to the execution of a portion of his sentence. See
United States v. Coleman, 229 F.3d 1154, 1154 (6th Cir. 2000) (unpublished table
decision). The district court erred, however, in dismissing the fourth claim as
unexhausted, at least at the screening stage.
Federal prisoners, it is true, must exhaust their administrative remedies before
they may file a § 2241 petition. Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 231
(6th Cir. 2006). But exhaustion is an affirmative defense, both generally, see Wright v.
Universal Maritime Serv. Corp., 525 U.S. 70, 75 (1998), and in the context of prisoner
lawsuits, see Jones v. Bock, 549 U.S. 199, 216–17 (2007). Even under the Prison
Litigation Reform Act, an inmate’s § 1983 claim “may not be dismissed at the screening
stage for failure to plead or attach exhibits with proof of exhaustion.” Grinter v. Knight,
532 F.3d 567, 578 (6th Cir. 2008). The same holds true for a federal prisoner’s § 2241
petition. See George v. Longley, 463 F. App’x 136, 139–40 (3d Cir. 2012); see also

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No. 12-5656 Luedtke v. Berkebile Page 3
Fazzini, 473 F.3d at 233–35 (treating exhaustion under § 2241 identically to exhaustion
under the PLRA).
For these reasons, we vacate the district court’s dismissal of Luedtke’s fourth
claim, affirm the remainder of the district court’s judgment and remand for further
proceedings. We also deny Luedtke’s motion for appointment of counsel.

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