Filed: Jul. 15, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-16271 ELEVENTH CIRCUIT JULY 15, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 09-00143-CV-5-RS-MD GARY STEPHEN KRIST, Petitioner-Appellant, versus IKE EICHENLAUB, Warden, Marianna Federal Correctional Institution, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Florida _ (July 15, 2010) Before TJOFLAT, BIRCH and WILSO
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-16271 ELEVENTH CIRCUIT JULY 15, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 09-00143-CV-5-RS-MD GARY STEPHEN KRIST, Petitioner-Appellant, versus IKE EICHENLAUB, Warden, Marianna Federal Correctional Institution, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Florida _ (July 15, 2010) Before TJOFLAT, BIRCH and WILSON..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16271 ELEVENTH CIRCUIT
JULY 15, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00143-CV-5-RS-MD
GARY STEPHEN KRIST,
Petitioner-Appellant,
versus
IKE EICHENLAUB,
Warden, Marianna Federal
Correctional Institution,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 15, 2010)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Gary Steven Krist, a pro se federal prisoner, appeals the district court’s
dismissal of his petition for writ of habeas corpus, filed pursuant to 28 U.S.C.
§ 2241. Because Krist filed his habeas petition before exhausting his
administrative remedies, the district court properly dismissed his petition for lack
of jurisdiction. Accordingly, we AFFIRM.
I. BACKGROUND
On 15 April 2009, Krist filed a pro se petition pursuant to 28 U.S.C. § 2241,
alleging that Warden Ike Eichenlaub had unlawfully denied him entry into the final
component of a drug abuse treatment program, which would have made him
eligible for a possible sentence reduction. R1-1. Eichenlaub placed a
memorandum in Krist’s file indicating that he would not be considered for
treatment in a residential reentry center because, based on his prior convictions for
escape and kidnapping, he was considered a significant threat to the community.
Id. at 27. To appeal that decision, Krist asserted that he filed a request for informal
resolution BP-8 on 17 March 2009, and a formal written Administrative Remedy
Request BP-9 on 6 April 2009, but never received responses.
Id. at 3. He attached
a copy of his BP-9 to his habeas petition, which included a handwritten date of 6
April 2009.
Id. at 29. In his memorandum in support of his petition, Krist argued
that the district court had discretion to waive the administrative exhaustion
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requirement, and that it should have exercised that discretion in his case because by
the time he had exhausted his administrative remedies, it would have been too late
to receive the drug therapy he sought. R1-5 at 3-4.
Krist later amended his petition, asserting that he had in fact exhausted his
administrative remedies, and submitted an affidavit and additional documents as
evidence. R1-21; R1-21-1. In his affidavit, he alleged that he hand-delivered his
BP-8 to a designated prison official on 17 March 2009, and his BP-9 to the same
prison official on 6 April 2009. R1-21-1 at 1. He asserted that the warden had 20
days to respond to his BP-9, and when he did not receive a timely response, he
properly appealed to the Bureau of Prisons (“BOP”) Regional Office on 28 April
2009, using a BP-10 form. Id. at 2. After being rejected, he appealed again to the
BOP central office on 13 May 2009, using a BP-11 form, and was rejected again.
Id. On 19 June 2009, Krist received a series of documents, including responses to
his BP-8 and BP-9.
Id. at 1. He asserted that the central office’s rejection was the
final step in the administrative appeal process, such that he had exhausted his
administrative remedies.
Id. at 2.
The attachments to Krist’s affidavit included a denial of his BP-8. Id. at 8-
10. There also appeared to be denials of two separate BP-9s, one “dated April 6,
2009,” and one “receipted June 2, 2009,” both denied on the merits.
Id. at 5-7, 11.
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However, the denial referencing the 6 April 2009 BP-9 was unsigned, undated, and
did not include a case number. Id. at 11. There was a copy of Krist’s BP-10, dated
28 April 2009, which the regional office rejected, stating he must first file a BP-9
with the institution.
Id. at 15-18. Finally, there was also a copy of his BP-11,
dated 13 May 2009, which the central office rejected, again instructing Krist to
first file a BP-9 with the institution.
Id. at 12-14.
Eichenlaub responded to Krist’s petition, asserting both that Krist had not
exhausted his administrative remedies, and that his petition should be denied on the
merits. R1-27 at 7-11. Attached to the response was a statement from Gary Sailor,
Unit Manager of Krist’s prison, stating that “[w]hile it appears Petitioner may have
indeed filed the April [6, 2009] BP-9, the BOP has no record of [it] being logged
into its SENTRY database, nor was [it] given a tracking number.” R1-27-1 at 5.
There was also a computer-generated list of all of Krist’s administrative remedy
filings, which indicated that the only BP-9 he filed regarding this issue was
received on 2 June 2009. See R1-27-6 at 3.
Krist replied, asserting again that he had exhausted his administrative
remedies. R1-31 at 7-9. In doing so, he conceded that he “had not exhausted [his]
administrative remed[ies] at the time he filed his petition,” but asserted that he had
since done so. Id. at 9.
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The magistrate judge issued a Report and Recommendation (“R&R”),
recommending that Krist’s petition be denied without prejudice for failure to
exhaust his administrative remedies. R1-40 at 12. The magistrate judge found that
there was no record that Krist had filed a BP-9 in April, and that he had refiled it in
June, after both his BP-10 and BP-11 were rejected. Id. at 7-8. The magistrate
judge concluded that this did not satisfy the administrative exhaustion
requirements, stating that “[w]hile it may seem nonsensical at first blush to require
the petitioner to re-submit a BP-10 and a BP-11 after having done so, the fact of
the matter is, the only BP-10 and BP-11 that were submitted were rejected on
procedural grounds, without an examination of their merits.”
Id. at 8. “[I]n order
for there to be complete and proper exhaustion of the merits of petitioner’s claim,
he should have filed appeals after the BP-9 was considered on its merits.”
Id. The
magistrate judge further stated that the record appeared to include two BP-9
denials, one “receipted June 2, 2009,” and one “dated April 6, 2009.”
Id. at 9-10.
However, since Krist never appealed the response dated 6 April 2009, the BOP
was never afforded the opportunity to consider the merits of Krist’s appeal.
Id. at
11.
Krist filed an objection to the R&R, arguing that he had already filed every
appeal required by the BOP, and thus, had exhausted his administrative remedies.
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R1-42 at 1-4. He further asserted that he was time-barred from appealing the
denial of his BP-9, and that he was prohibited from appealing twice on the same
issue, such that it was impossible for him to ever exhaust his administrative
remedies. Id. at 4, 6-7. He argued that the BOP did have an opportunity to
consider the merits of his case, since he attached his original “lost” BP-9 to his
subsequent appeals.
Id. at 5-7. He further contended that his petition should be
granted because its denial would result in irreparable harm.
Id. at 7-10.
The district court adopted the magistrate judge’s R&R without further
elaboration, and denied Krist’s petition without prejudice for failure to exhaust his
administrative remedies. R1-43.
II. DISCUSSION
On appeal, Krist argues that the district court erred in finding that he had not
exhausted his administrative remedies. He asserts that he properly submitted a BP-
9 form on 6 April 2009, and that prison authorities intentionally hid the document
in an effort to indefinitely delay his relief. He argues that by dismissing his habeas
petition for lack of jurisdiction, the district court unconstitutionally suspended the
writ of habeas corpus.
We review de novo a district court’s denial of habeas relief under 28 U.S.C.
§ 2241. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000). Prisoners seeking
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habeas relief pursuant to § 2241 are subject to administrative exhaustion
requirements. Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir. 2004). For
purposes of § 2241 relief, “exhaustion of administrative remedies is jurisdictional.”
Gonzalez v. United States,
959 F.2d 211, 212 (11th Cir. 1992).
The BOP has established regulations governing formal review of prisoner
complaints relating to any aspect of imprisonment. 28 C.F.R. § 542.10-.19.
Prisoners generally must first present an issue to institution staff, and attempt to
resolve it informally. Id. at § 542.13. If an issue cannot be resolved informally, a
prisoner must submit a formal written Administrative Remedy Request, using a
BP-9 form, to a designated institution staff member.
Id. at 542.14(a), (c)(4). If a
prisoner is not satisfied with the warden’s response to his BP-9, he may appeal to
the BOP regional director, using a BP-10 form, and if he is not satisfied with the
regional director’s response, may appeal to the BOP general counsel, using a BP-
11 form.
Id. at 542.15(a). An appeal to the general counsel is the final
administrative appeal.
Id. A BP-9 form “is considered filed on the date it is
logged into the Administrative Remedy Index as received.”
Id. at § 542.18. The
warden must respond to a BP-9 within 20 calendar days, and if a prisoner does not
receive a response within that time period, he “may consider the absence of a
response to be a denial.”
Id. Only after a prisoner exhausts these administrative
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remedies may he file for habeas relief in district court. United States v. Herrera,
931 F.2d 761, 764 (11th Cir. 1991).
Krist conceded that he did not exhaust his administrative remedies before he
filed his § 2241 habeas petition in the district court. R1-31 at 9. Assuming,
arguendo, that Krist’s alleged 6 April 2009 BP-9 was properly submitted, he filed
his habeas petition only nine days later, before any response regarding his BP-9
was due. See R1-1. He then filed his BP-10 on 28 April, and his BP-11 on 13
May, nearly one month after his habeas petition. R1-21-1 at 13-14, 16-18. Since
prisoners must exhaust their administrative remedies before seeking relief in court,
and Krist conceded that he did not do so, the district court lacked jurisdiction to
consider his petition. See Gonzalez, 959 F.2d at 212;
Herrera, 931 F.2d at 764.
Further, a BP-9 form is not considered filed until it is logged into the
Administrative Remedy Index, which in Krist’s case, was not until 2 June 2009.
28 C.F.R. § 542.18; R1-27-7 at 3. The warden responded within the required 20-
day period, denying Krist’s request on the merits. R1-21-1 at 5. To exhaust his
administrative remedies, Krist was required to appeal that determination to the
regional director, and then to the general counsel. See 28 C.F.R. § 542.15(a).
Although Krist had already filed each of these appeals, they were premature, as
they were filed before his BP-9 was properly filed, and before he received the
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warden’s response. As such, he did not exhaust his administrative remedies prior
to seeking relief in the district court, and was jurisdictionally barred from doing so.
See Gonzalez, 959 F.2d at 212;
Herrera, 931 F.2d at 764.
III. CONCLUSION
Because Krist filed his habeas petition before exhausting his administrative
remedies, the district court properly dismissed his petition for lack of jurisdiction.
AFFIRMED.
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