ORDER

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on:

Defendant Omar Belalcazar Garcia requests that the Court order the Government to notify Defendant whether a Rule 35(b) Motion will be filed.

No Rule 35 Motion has been filed by the Government. The Court previously denied Defendant's Motion for a Rule 35, and has explained the reason. (Dkt. 226, Exh. A.). After consideration, the Court adopts and incorporates the prior Order, and denies Defendant's request without prejudice.

Defendant Omar Belalcazar Garcia further requests injunctive relief requiring the BOP to transfer Defendant. Defendant Belalcazar Garcia says Defendant is constantly harassed by other inmates due to Defendant's cooperation, and says "someone might end up getting hurt." Defendant Belalcazar alleges that Defendant has been "involved in heated arguments almost daily."

The Prison Litigation Reform Act requires exhaustion of administrative remedies as to any challenge to prison conditions. Courts do not have the discretion to waive the exhaustion requirement. Even if a prisoner has initiated a grievance procedure, he must fully complete the process before filing a lawsuit. See Harper v. Jenkin, 1790 F.3d 1311, 1312 (11th Cir. 1999).

The BOP has created the Administrative Remedy Program, a three-step process which allows inmates "to seek formal review of an issue which relates to any aspect of their confinement." Initially an inmate must attempt to informally resolve his complaint with the BOP staff. See 28 C.F.R. Sec. 542.13(a). If the attempt fails, the inmate may then file a Request for Administrative Remedy (BP-9 form) and submit it to the warden within twenty days "following the date on which the basis for the Request occurred." See 28 C.F.R. Sec. 542.14. If not satisfied with the response of the Regional Director, the inmate may submit another appeal, using the appropriate form to the BOP's General Counsel. See 28 C.F.R. Sec. 542.15(a). The prisoner may file the initial request directly with the Regional Director instead of the warden, however, "[i]f the inmate reasonably believes the issue is sensitive and the inmate's safety or well-being would be placed in danger if the Request became known at the institution." See 28 C.F.R. Sec. 542.14(d)(12). Proper exhaustion requires timely appeal through all levels, including to the General Counsel that complies with BOP regulations so that it is decided on the merits at all levels.

After consideration, the Court denies Defendant's request for injunctive relief without prejudice for lack of jurisdiction. Accordingly, it is

ORDERED that pro se Defendant Omar Belalcazar's Motion for Status of Rule 35 is denied without prejudice. The Court adopts and incorporates the prior Order (Dkt. 226). Defendant's Motion Directing the BOP to Transfer Defendant is denied without prejudice for lack of jurisdiction. Defendant shall pursue the available administrative remedies. The Clerk of Court shall provide a copy of this Order to pro se Defendant Omar Belalcazar Garcia at the address below.

DONE and ORDERED.

Exhibit A

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

ORDER

This cause is before the Court on the following Motion of pro se Defendant Omar Belalcazar Garcia:

After Defendant Belalcazar Garcia entered into a Plea Agreement (Dkt. 90), in which Defendant Belalcazar Garcia pleaded guilty to Count Three of the Superseding Indictment, Defendant Belalcazar Garcia was sentenced on November 9, 2012. The Government filed a Motion for Downward Departure (Dkt. 133) of three levels to Defendant's offense level, which the Court granted at sentencing. On the Government's Motion, Counts One, Two and Four of the Superseding Indictment, and all counts of the underlying Indictment, were dismissed at sentencing. Defendant Belalcazar Garcia orally moved for a variance to 150 months imprisonment, which the Court denied (Dkts. 139, 140). Defendant Belalcazar-Garcia was represented by counsel at sentencing; Defendant's counsel noted no objections to the sentencing proceedings. Defendant Belalcazar Garcia was sentenced to 151 months imprisonment as to Count Three of the Superseding Indictment, to run consecutively to the sentence imposed in Case No. 8:04-CR-545-T-30EAJ, and 120 months supervised release as to Count Three.

Defendant Belalcazar's Plea Agreement provides:

(Dkt. 90, p. 5).

Federal district courts have authority to review a prosecutor's refusal to file a substantial assistance motion to grant a remedy if they finds that the refusal was based on an unconstitutional motive, like race or religion. A defendant who merely claims to have provided substantial assistance or who makes only generalized allegations of an improper motive is not entitled to a remedy or even an evidentiary hearing. Judicial review is appropriate only when there is an allegation and a substantial showing that the prosecution refused to file a substantial assistance motion because of a constitutionally impermissible motivation. See Wade v. United States, 504 U.S. 181 (1982); United States v. Nealy, 232 F.3d 825 (11th Cir. 2000).

Defendant Belalcazar Garcia does not allege or make any showing that the Government has refused to file a substantial assistance motion because of a constitutionally impermissible motivation.

After consideration, the Court denies pro se Defendant's Motion for a Rule 35, and denies the Motion for Appointment of Counsel as moot. Accordingly, it is

ORDERED that pro se Defendant Omar Belalcazar Garcia's Motion for Rule 35 and for Appointment of Counsel (Dkt. 225) is denied; the Motion for Rule 35 is denied, and the Motion for Appointment of Counsel is denied as moot. The Clerk of Court shall provide a copy of this Order to pro se Defendant Belalcazar Garcia at the address below.

DONE and ORDERED in Chambers in Tampa, Florida on this 24th day of May, 2017.