Walsh v. Boncher

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

WILLIAM FRANCIS WALSH,

Petitioner,

v. No. 22-cv-11197-DLC

AMY BONCHER, Warden of

FMC Devens,

Respondent.

MEMORANDUM AND ORDER ON MOTION TO DISMISS PETITION

CABELL, U.S.M.J.

Pro se petitioner William Francis Walsh (“petitioner”), a

federal inmate incarcerated at the Federal Medical Center in

Devens, Massachusetts (“FMC Devens”), has filed a petition for

writ of habeas corpus under 28 U.S.C. § 2241 (“section 2241”)

challenging the Bureau of Prisons’ calculation of earned time

credits (“FSA credits”) under the First Step Act (“the FSA”), 18

U.S.C. § 3632(d)(4)(C). (D. 1). Respondent Amy Boncher

(“respondent”), the warden at FMC Devens, moves to dismiss the

petition under Fed. R. Civ. P. 12(b)(6) (“Rule 12(b)(6)”) because

the petitioner failed to exhaust his administrative remedies. (D.

7). For reasons that follow, the motion is allowed and the

petition will be dismissed without prejudice.

I. LEGAL FRAMEWORK

A. Earned Time Credits under the FSA

Because this case involves earned time credits under the FSA,

a brief overview of the statutory process for obtaining such

credits may be helpful. Under the FSA, eligible inmates are

allowed to earn time credits “towards pre-release custody or early

transfer to supervised release for successfully completing

approved Evidence-Based Recidivism Reduction programs or

Productive Activities.” Nygren v. Boncher, 578 F. Supp. 3d 146,

149 (D. Mass. 2021) (citation omitted). In accordance with 18

U.S.C. § 3632(d)(4)(C), an eligible inmate “who successfully

completes evidence-based recidivism reduction programs or

productive activities shall earn time credits” of ten days “for

every 30 days of successful participation.” 18 U.S.C. §

3632(d)(4)(A)(i). Earned time credits by eligible inmates are

“applied toward time in prerelease custody or supervised release.”

18 U.S.C. 3632(d)(4)(C).

By accelerating the time to secure prerelease custody or

supervised release with FSA credits, the FSA incentivizes inmates

to participate in and complete beneficial “evidence-based

recidivism reduction” programs (“EBRRs”) or “productive

activities” (“PAs”). Pollock v. Kallis, Civ. No. 20-0359, 2021 WL

3476627, at *4 (D. Minn. Apr. 6, 2021). In connection thereto,

the Bureau of Prisons (“BOP”) assigns a PATTERN risk score which

measures an inmate’s “criminal risk factors . . . to predict the

likelihood that a person in federal prison will re-offend upon

release.”1 DeCaro, 2022 WL 4395905, at *1 n.1; Goodman v. Ortiz,

Civ. No. 20-7582 (RMB), 2020 WL 5015613, at *1 (D.N.J. Aug. 25,

2020) (“BOP created a risk and needs assessment system,” PATTERN,

“in compliance with the First Step Act, 18 U.S.C. § 3632(a).”).

The four PATTERN risk scores are minimum, low, medium, and high-

risk. DeCaro, 2022 WL 4395905, at *1 n.1. Inmates with a minimum

or low PATTERN risk score earn 15 as opposed to ten “days of [FSA]

time credits for every 30 days of successful participation in” an

EBRR or PA. Nygren, 578 F. Supp. 3d at 149 (citing 18 U.S.C. §

3632(d)(4)).

B. Standard of Review

A section 2241 petition provides a basis to “attack the

execution, rather than the validity” of a petitioner’s sentence.

Dinkins v. Boncher, Civil Action No. 21-cv-11847-AK, 2022 WL

3021108, at *2 (D. Mass. July 29, 2022) (citation omitted). In

particular, a petitioner may challenge “computation of a

prisoner’s sentence by prison officials” via a section 2241

petition. Id. (citation omitted).

1 PATTERN is an acronym “for Prisoner Assessment Tool Targeting Estimated Risk

and Needs.” United States v. DeCaro, No. 1:96-CR-00005-JAR-1, 2022 WL 4395905,

at *1 n.1 (E.D. Mo. Aug. 23, 2022), appeal filed, No. 22-3004 (8th Cir. Sept.

22, 2022).

Here, the respondent filed a pre-answer motion to dismiss.

Amendments in 2004 to Rules 4 and 5 of the Rules Governing Section

2254 Cases in the United States District Courts permit the filing

of a pre-answer motion to dismiss. See Rule 5, 28 foll. § 2254,

advisory committee’s note to 2004 amendment (“Revised Rule 5(a) .

. . does not address the practice . . . where the respondent files

a pre-answer motion to dismiss . . . [b]ut revised Rule 4 permits

that practice.”); see also Bramson v. Winn, 136 Fed. Appx. 380,

382 (1st Cir. 2005) (applying Rule 4 to section 2241 petition and

explaining Ҥ 2254 rules specifically state that they may be

applied by the district court to other habeas petitions”)

(unpublished); accord Waylein v. Mass. Treatment Ctr., Civil

Action No. 21-cv-11788-RGS, 2021 WL 5417038, at *1 (D. Mass. Nov.

19, 2021) (dismissing section 2241 petition “pursuant to Rule 4,”

28 foll. § 2254, “as applicable to a 28 U.S.C. § 2241 petition

under Rule 1(b),” 28 foll. § 2254). 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 12(b)(6).” Cardoza v. Pullen, 3:22-CV-00591 (SVN), 2022

WL 3212408, at *3 (D. Conn. Aug. 9, 2022); accord Silva v. Moniz,

Case No. 20-cv-12255-DJC, 2021 WL 2953338, at *1 (D. Mass. July

14, 2021) (applying Rule 12(b)(6) standard to section 2241

petition), appeal filed, No. 21-1967 (1st Cir. Dec. 3, 2021); see

McCants v. Alves, 571 F. Supp. 3d 1, 2-3 (D. Mass. 2021) (applying

Rule 12(b)(6) standard to habeas petition brought under 28 U.S.C.

§ 2254). To survive a motion to dismiss, the complaint must

contain “enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007); accord Levine v. U.S. Dep’t of Fed. Bureau of Prisons,

Civil Action No. 20-cv-11833-ADB, 2021 WL 681689, at *1-2 (D. Mass.

Feb. 22, 2021) (setting out Twombly standard in adjudicating Rule

12(b)(6) motion to dismiss section 2241 petition).

The respondent attaches a declaration authored by Sukenna W.

Stokes (“Stokes”), a BOP correctional programs officer, to the

supporting memorandum to the motion to dismiss. (D. 8-1). The

petitioner does not dispute the authenticity of the declaration

and the accompanying BOP records. Accordingly, they are part of

the Rule 12(b)(6) record. See, e.g., Levine, 2021 WL 681689, at

*1 n.1 (accepting letter in ruling on motion to dismiss section

2241 petition because “Court may consider documents the

authenticity of which are not disputed by the parties”) (citation

and internal quotation marks omitted). Facts set out in the

supporting memorandum (D. 8) or the petitioner’s opposition (D.

15), however, are not considered.2 Torres-Medina v. Wormuth, Civ.

No. 21-1362 (SCC), 2022 WL 3557049, at *3 n.1 (D.P.R. Aug. 18,

2 Rather, this court considers the content of the supporting memorandum and the

opposition as argument. The opposition recounts a series of transfers,

difficult conditions, and extended travel which delayed the petitioner’s arrival

at FMC Devens. (D. 15).

2022) (noting court “may not . . . take into account additional

facts asserted in a memorandum opposing the motion to dismiss”)

(quoting Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483 (6th

Cir. 2020), in parenthetical).

II. BACKGROUND

In March 2020, the petitioner was indicted in the United

States District Court for the Eastern District of Virginia along

with three co-defendants for conspiracy to distribute and possess

with intent to distribute synthetic cannabinoids in violation of

21 U.S.C. § 846. United States v. Walsh et al., Case No. 1:20-

cr-00076-RDA (E.D. Va. Mar. 12, 2020). The petitioner’s arrest

took place on June 9, 2020. Id. After two co-defendants pled

guilty, the petitioner pled guilty to a superseding criminal

information charging him with the same offense on January 28, 2021.

United States v. Walsh et al., Case No. 1:20-cr-00076-RDA (E.D.

Va. Jan. 28, 2021). A minute entry for the proceeding states,

“Sentencing date not set at this time; Date to be set following

the trial of co-defendant.” Id. (emphasis added).3

On December 1, 2021, slightly more than ten months after the

petitioner pled guilty, the court sentenced him to 48 months

3 In opposing the motion to dismiss, the petitioner asserts that when he “went

to court and pled guilty,” he “was told [he] would be sentenced in the following

weeks or months in some type of timely manner.” (D. 15, p. 2). The remaining

co-defendant pled guilty on November 2, 2020, and the petitioner’s sentencing

took place one month later. United States v. Walsh et al., Case No. 1:20-cr-

00076-RDA (E.D. Va. Nov. 2, 2021). Hence, the petitioner’s assertion is not

supported by the record.

imprisonment and three years supervised release. (D. 1, p. 1) (D.

8-1, p. 3, ¶ 12) (D. 8-1, p. 7). In sentencing the petitioner,

the court recommended he serve his sentence at FMC Devens. United

States v. Walsh et al., Case No. 1:20-cr-00076-RDA (E.D. Va. Dec.

1, 2021) (“Court recommends that the defendant be designated to:

FMC Devens”).

On February 10, 2022, the petitioner arrived at FMC Devens,

his designated facility, and at this point became eligible to earn

FSA credits. (D. 8-1, p. 7) (D. 8-1, p. 3, ¶ 10(d)). In March

2022, the BOP manually calculated the petitioner’s FSA credits as

15 days. (D. 8-1, p. 3, ¶¶ 11, 13) (8-1, p. 7). A manual

calculation assumes an inmate has been in “programming

commensurate with [the inmate’s] needs (whether true or not), as

long as” the inmate is at the inmate’s “designated institution.”

(D. 8-1, p. 3, ¶ 11). As such, the inmate “may receive a windfall”

in FSA credits. (D. 8-1, p. 3, ¶ 11). The March 2022 sentence

computation projects the petitioner’s release date “with FSA

credits included” as October 21, 2023. (D. 8-1, p. 8) (D. 8-1, p.

3, ¶ 13). Further, it calculates the sentence as commencing on

December 1, 2021, and affords him credit (but not FSA credit) for

jail time from the date of his arrest, June 9, 2020, through

November 30, 2021.4 (D. 8-1, p. 8).

4 As an aside, the sentence calculation references an “elderly offender two

thirds date” of February 8, 2023. (D. 8-1, p. 8). Under a BOP pilot program

for “eligible elderly offenders,” the BOP has the discretion to release eligible

In July 2022, the BOP “manually reassessed the [p]etitioner’s

FSA credits . . . as of July 30, 2022.” (D. 8-1, p. 3, ¶ 14).

The reassessment determined “[p]etitioner earned 75 FSA credits

which could be applied towards prerelease placement or supervised

release.” (D. 8-1, p. 3, ¶ 14). As stated in Stokes’ declaration,

“Assuming, arguendo, the [75] time credits were applied toward

[p]etitioner’s supervised release, his projected release date

would be on or about August 22, 2023.” (8-1, p. 4, n.1). Stokes

anticipates the next calculation will occur when an automated

process to calculate FSA credits is fully operational. (D. 8-1,

p. 4, ¶ 14).

As of the September 8, 2022 date of Stokes’ declaration, the

petitioner had not filed a request for an administrative remedy

“concerning the calculation and/or application of his FSA

credits.” (D. 8-1, p. 5, ¶ 23). Rather, Stokes attests the

“[p]etitioner filed one Request for Administrative Remedy relating

to the CARES Act.” (D. 8-1, p. 5, ¶ 23) (emphasis added).

elderly offenders to home confinement prior to the completion of their

sentences. See Brown v. Hudson, Case No. 22-3063-JW, 2022 WL 2438380, at *1-2

(D. Kan. July 5, 2022) (explaining pilot program); 34 U.S.C. § 60541(g). The

statute defines an “eligible elderly offender” as an individual “who is not

less than 60 years of age.” 34 U.S.C. § 60541(g)(5)(A). Whereas the BOP

determines eligibility status of an elderly offender, Brown, 2022 WL 2438380,

at *2, this court simply notes that the petitioner is presently 58 years old.

(D. 8-1, p. 7). To be clear, this court is not determining the petitioner’s

eligibility as an elderly offender. Rather, this court is explaining the

reference to the “elderly two thirds date” in the March 2022 sentence

calculation.

III. DISCUSSION

The petitioner asserts that his FSA credits have not been

properly or fully applied. (D. 1, p. 6, ¶ 13). As noted above,

the BOP began calculating the petitioner’s FSA credits from the

time he arrived at FMC Devens as his designated facility, on

February 10, 2022. The petitioner contends that he should have

been accruing FSA credits before this date, beginning on either

the day he pled guilty (January 28, 2021), or the day he was

sentenced (December 1, 2021). He also questions the lack of time

credits from his “February 10th [,2022] arrival [at FMC] Devens”

to the BOP’s calculated eligibility date of March 20, 2022.5 (D.

15, p. 3). Using the triggering date of his guilty plea, the

petitioner asserts that he has amassed enough credits to accelerate

his release date to October 2022, a date which has already passed

and thus warrants his immediate release. (D. 15, p. 3). Further,

because his “release would be immediate,” the petitioner argues

the administrative remedies are futile. (D. 15, p. 3) (D. 16, p.

1) (D. 16-2, p. 1). Relatedly, the petitioner recites a series of

transfers from one facility to another after his arrest and prior

to his arrival FMC Devens where, through no fault of his own, a

lack of programs at each facility prevented him from accruing FSA

5 Upon his arrival at FMC Devens, the petitioner alleges he spent 29 days in a

special housing unit followed by a week during which he “was not allowed time

credits.” (D. 16-2, p. 1) (D. 15, pp. 2-3).

credits.6 (D. 15). For example, he claims that the “one program

offered” during his ten-month stay at an Alexandria, Virginia

facility never occurred “due to Covid.” (D. 15, p. 1).

The respondent argues the petition should be dismissed

because the petitioner has failed to exhaust the BOP’s

administrative remedies available to him. (D. 8). The respondent

further argues the petitioner fails to set out facts suggesting

futility or the existence of circumstances beyond his control which

precluded him from exhausting administrative remedies. (D. 8, p.

6).

A. Administrative Exhaustion

A section 2241 petition is “[t]he appropriate vehicle for a

prisoner to challenge the calculation of [the prisoner’s] release

date.” Cook v. Spaulding, 433 F. Supp. 3d 54, 57 (D. Mass. 2020)

(collecting cases). Ordinarily, a federal inmate must exhaust the

BOP’s administrative remedies before filing a section 2241

petition in federal court. See Rogers v. United States, 180 F.3d

6 As stated in footnote two and the related text in the body of the opinion,

the events the petitioner describes are assertions as opposed to facts in the

Rule 12(b)(6) record. In any event, they do not alter the conclusion requiring

the petitioner to exhaust administrative remedies. By way of explanation, the

majority of the events the petitioner recites (including his guilty plea, travel

between facilities, and sentencing) took place before his arrival at FMC Devens,

his designated facility. As explained below, FSA credits are not earned prior

to an inmate’s arrival at the designated facility. See 28 C.F.R. § 523.42(a);

(D. 8-1, p. 3, ¶ 10(d); (D. 8-1, p. 7). The exclusion of this time materially

undercuts the petitioner’s assertion of entitlement to an immediate release as

of October 2022 and, by extension, the futility of pursuing administrative

remedies. Accordingly, the conclusion requiring exhaustion remains the same.

349, 358 (1st Cir. 1999) (“Once administrative remedies are

exhausted, see 28 C.F.R. §§ 542.10–542.16, prisoners may then seek

judicial review of any jail-time credit determination by filing a

habeas petition under [section] 2241.”) (citations omitted);

Nygren, 578 F. Supp. 3d at 151 (citing Rogers, 180 F.3d at 358);

Levine, 2021 WL 681689, at *3 (explaining “section 2241 petition

seeking sentence credit . . . subject to dismissal if” inmate

“fails to exhaust” BOP’s administrative remedies) (citation

omitted).

Codified in 28 C.F.R. §§ 542.10 to 542.19 (“section 542”),

the BOP’s administrative remedies program sets out a multilevel

process to exhaust section “2241 claims challenging the

computation of a release date.” Cook, 433 F. Supp. 3d at 57

(citation omitted); see Nygren, 578 F. Supp. 3d at 151-152

(dismissing section 2241 petition seeking earned time credits for

education and work programs because of failure to exhaust section

542 administrative remedies); Levine, 2021 WL 681689, at *2-3

(finding petitioner must follow procedures in section 542 to pursue

request for sentence credit “for time served in home confinement

prior to” sentencing). Here, the petitioner did not make an

informal request under section 542.13 and failed to invoke any of

the subsequent levels of review under sections 542.14 and 542.15.

(D. 8-1, p. 5, ¶¶ 22-23) (D. 8-1, pp. 10-11). As such, he has

failed to exhaust his administrative remedies.

B. Futility

The petitioner acknowledges that he has not fully exhausted

his administrative remedies but argues it would be futile to

attempt to do so where, in his view, he was subject to release as

of October 2022. (D. 15, p. 3). The respondent maintains the

petitioner “has not alleged any facts suggesting” the remedies

available to him are futile. (D. 8, p. 6) (emphasis added). He

also fails to set out facts supporting cause and/or prejudice to

excuse exhaustion based on “‘legitimate circumstances beyond his

control’ [which] precluded him from fully pursuing his claim

through the BOP’s administrative process,” according to the

respondent. (D. 8, p. 6).

As articulated in Levine, “[s]ome courts . . . recognize[]

the potential for a waiver of the administrative exhaustion

requirement for § 2241 petitions where a petitioner can show that

fulfilling the requirement would be futile.” Levine, 2021 WL

681689, at *3 (citation omitted); accord Nygren, 578 F. Supp. 3d

at 152 (quoting Levine, 2021 WL 681689, at *3) (additional citation

omitted). Recognizing a futility exception is consistent with the

absence of a statutory mandate to exhaust section 2241 challenges

to sentence calculations. See Anversa v. Partners Healthcare Sys.,

Inc., 855 F.3d 167, 176 (1st Cir. 2016) (Where “Congress has not

mandated exhaustion, federal courts have some leeway to relax

[the administrative exhaustion] requirement.”);7 see also

Rodriguez-Rosa v. Spaulding, Civil Action No. 19-11984-MBB, 2020

WL 2543239, at *9 n.20 (D. Mass. May 19, 2020) (noting

administrative exhaustion for section 2241 sentence challenges “is

not statutorily required”) (quoting Fazzini v. Ne. Ohio Corr. Ctr.,

473 F.3d 229, 235 (6th Cir. 2006), in parenthetical).

In considering whether to require exhaustion, “courts must

balance the interest of the individual in retaining prompt access

to a federal judicial forum against countervailing institutional

interests favoring exhaustion.” Anversa, 835 F.3d at 176 (quoting

McCarthy v. Madigan, 503 U.S. 140, 146 (1992)). Turning to

institutional interests, first and foremost requiring

administrative exhaustion “respects congressional prerogative by

‘preventing litigants from bypassing Congress’ carefully crafted

remedial scheme.’” Anversa, 835 F.3d at 175 (citation omitted).

Simply stated, administrative exhaustion “discourages ‘disregard

of [the agency’s] procedures.’” Woodford v. Ngo, 548 U.S. 81, 89

7 Although Anversa involved exhaustion of medical research misconduct before

the Office of Research Integrity in accordance with federal regulations, see

id. at 169-171, at least two district courts in this circuit apply the decision

to section 2241 challenges to calculations of FSA credits. See Brown v. Rieger,

2:22-cv-00259-JAW, 2022 WL 17082097, at *5 (D. Me. Nov. 18, 2022), report and

recommendation adopted, 2022 WL 17184294 (D. Mass. Nov. 23, 2022), appeal filed,

No. 22-1945 (1st Cir. Dec. 9, 2022); Carroll v. Warden of FCI Berlin Robert

Hazlewood, No. 21-CV-139-PB, 2021 WL 2877463 (D.N.H. May 26, 2021)

(unpublished), report and recommendation adopted, 2021 WL 2857184 (D.N.H. July

7, 2021). Similarly, the First Circuit cited Anversa multiple times in applying

a common-law administrative exhaustion requirement to noncitizen habeas

petitioners “to raise their alternatives-to-detention claims before their

respective [immigration judges].” Brito v. Garland, 22 F.4th 240, 255-256 (1st

Cir. 2021).

(2006) (quoting McCarthy, 503 U.S. at 145). Here, the petitioner

completely ignored the administrative procedures in section 542.

Further, having used the section 542 procedures previously in a

separate matter (D. 8-1, pp. 5, 10-11), he is aware of their

existence. Nevertheless, he made no effort to avail himself of

those procedures and thereby exhibits a total disregard of them.

Administrative exhaustion also “gives an agency the first

opportunity to apply [its] expertise.” Anversa, 835 F.3d at 175

(citation omitted). The petitioner’s challenge implicates the

calculation and potential correction of the petitioner’s sentence

and release date. As such, the claim “[i]nvolves the BOP’s special

expertise in calculating and administering sentences.” Luna v.

Howard, No. CV-21-00326-TUC-RM (LCK), 2022 WL 17741575, at *2 (D.

Ariz. Sept. 19, 2022) (requiring administrative exhaustion)

(citation omitted), report and recommendation adopted, 2022 WL

17741061 (D. Ariz. Dec. 15, 2022), appeal filed, No. 22-17009 (9th

Cir. Dec. 28, 2022); Pangelinan v. Entzel, Case No.: EDCV 17–01144–

FMO (JDE), 2017 WL 4773300, at *3 (C.D. Cal. Aug. 22, 2017) (noting

“BOP has special expertise in analyzing policies and precedent

governing sentence computation and projected release dates”).

Juxtaposed against these institutional interests, an inmate’s

interests “weigh heavily” when: (1) “requiring resort to the

administrative remedy may occasion undue prejudice to subsequent

assertion of a court action”; (2) “an administrative remedy may be

insufficient because the agency is powerless to grant effective

relief or incompetent to adjudicate the claims at issue”; and (3)

“the administrative body is clearly biased.”8 Id. at 176 (quoting

McCarthy, 503 U.S. at 146-149).

With respect to the first of these three circumstances, “an

unreasonable or indefinite timeframe for administrative action”

may result in undue prejudice. McCarthy, 503 U.S. at 147 (citation

omitted). The review process in section 542 sets out a deadline

to file and complete the initial informal resolution. 28 C.F.R.

§§ 542.13, 542.14(a). It also establishes subsequent deadlines of

20 or 30 days to proceed to the three levels of subsequent review

along with deadlines to respond. 28 C.F.R. §§ 542.13, 542.14(a),

542.15, 542.18; (D. 8-1, p. 4, ¶¶ 18-21). Further, it allows for

exceptions and extensions of time. 28 C.F.R. §§ 542.14(b), 542.15,

542.18. In total, the process is designed to take place within

months, not years. Accordingly, the process is neither indefinite

as to time nor unreasonable.

As to the second circumstance, the BOP is not powerless to

grant effective relief. In particular, it remains possible he

could obtain credit for at least a portion of the time he requests.

See Levine, 2021 WL 681689, at *3 (pointing out possibility

“Petitioner could achieve the credit he seeks at any of the stages

8 There is no suggestion of bias on the part of BOP officials in the event the

petitioner proceeded to exhaust administrative remedies.

in the [BOP Administrative Remedy] Program’s review and appeals

process”). As explained below and as stated by Stokes, however,

“[i]nmates are only eligible to earn FSA credits when they are in

‘designated status . . . as opposed to . . . in transit.” (D. 8-

1, p. 3, ¶¶ 10(d), 11) (D. 8-1, p. 7). The petitioner did not

arrive at his designated facility, FMC Devens, until February 2022.

It is therefore unlikely the administrative process will afford

the petitioner the complete relief he seeks, namely, accrual of

FSA credits commencing on the date he pled guilty (January 28,

2021) or the date of his sentencing (December 1, 2021) until the

date of his arrival at FMC Devens.

Nevertheless, “[w]ithout some indication that the BOP

administrative process offers no genuine potential remedy, the

factual basis for a claim of futility remains unclear and the

argument for futility is unpersuasive.” Levine, 2021 WL 681689,

at *3 (emphasis added) (citation omitted); see also Anversa, 835

F.3d at 177 (“[e]xhaustion is beneficial regardless of whether the

administrative process offers the specific form of remediation

sought by a particular plaintiff”) (citation omitted). Here,

exhaustion may allow the BOP to give the petitioner FSA credits

for some of the time period between his February 10, 2022 arrival

at FMC Devens and March 20, 2022, the date the petitioner maintains

the BOP started applying FSA credits (D. 15, p. 3).

In sum, the petitioner’s interest “in retaining prompt access

to a federal judicial forum” is outweighed by the “countervailing

institutional interests favoring exhaustion.” Anversa, 835 F.3d

at 176 (citation omitted). On balance, exhaustion is therefore

required.9

More broadly, the futility argument based on the petitioner’s

calculation of an immediate release in October 2022 is not

convincing. Insofar as the petitioner seeks immediate release

using January 28, 2021 as the start date for FSA credits, a federal

regulation provides otherwise. See 28 C.F.R. § 523.42(a) (“section

523.42(a)”). Under section 523.42(a), “[a]n eligible inmate

begins earning FSA Time Credits after” his “term of imprisonment

commences,” i.e., “the date [he] arrives . . . at the designated

[Bureau of Prisons] facility where [his] sentence will be served.”

28 C.F.R. § 523.42(a) (emphasis added). With respect to the

petitioner’s proffered date of January 28, 2021 when he pled

guilty, the petitioner did not arrive at FMC Devens until more

than a year later in February 2022. Indeed, the bulk of the time

for which the petitioner seeks to accrue FSA time credits occurred

9 Relatedly, in the context of exhausting any updated calculation, the petitioner

may wish to include his objection to any failure in the updated calculation to

account for FSA credits prior to his arrival at FMC Devens. In this manner,

administrative remedies are not unavailable even if the petitioner did not

timely file for initial review of the interim calculations. See generally 28

C.F.R. §§ 542.13, 542.14(a) (imposing 20-day period “following the date on which

the basis for the Request occurred” to complete first step of informal

resolution). Furthermore, the Warden or the Administrative Remedy Coordinator

has the discretion to waive the initial informal resolution requirement. 28

C.F.R. § 542.13(b).

before his arrival at FMC Devens, his designated facility. In

that vein, the petitioner is unlikely to experience irreparable

harm by resorting to administrative remedies because, contrary to

his reasoning, he is not subject to immediate release. See Hanson

v. Hendrix, Case No. 3:22-cv-00165-AA, 2022 WL 4182535, at *2 (D.

Or. Sept. 13, 2022) (petitioner not subject to irreparable harm by

requirement to exhaust “BOP’s administrative remedy process”

because petitioner has “adequate opportunity to complete all

stages of the administrative process” prior to release); see also

McCarthy, 503 U.S. at 147 (recognizing “particular plaintiff may

suffer irreparable harm if unable to secure immediate judicial

consideration of his claim”) (citation omitted). Moreover, the

petitioner could have begun pursuing administrative remedies for

FSA credit earlier particularly in light of the respondent’s

September 8, 2022 motion setting out the explicit failure to

exhaust. See Levine, 2021 WL 681689, at *3 (Although “Petitioner

is due for release from home confinement in April 2021, the Court

notes that Petitioner could have begun pursuing his request for

credit any time after his sentencing in 2011” and “[h]is late

request and failure to exhaust his administrative remedies is not

grounds for waiving exhaustion.”).

As a final matter, the respondent argues the petitioner fails

to allege facts that “‘legitimate circumstances beyond his

control’ precluded him from pursuing” section 542 remedies. (D.

8, p. 6). Assuming arguendo that cause and prejudice excuses a

federal inmate from exhausting remedies prior to filing a section

2241 petition, the petitioner fails to address cause and prejudice.

See Dunbar v. Sabol, 649 F. Supp. 2d 1, 4 (D. Mass. 2009) (noting

that cause and prejudice may excuse a section 2241 petitioner from

exhaustion but finding petitioner’s “conclusory statements”

insufficient); see also Nygren, 578 F. Supp. 3d at 152 (noting

“some support” for excusing exhaustion by showing cause and

prejudice in section 2241 proceeding) (citing Dunbar, 649 F. Supp.

2d at 4). Regardless, once the petitioner arrived at FMC Devens,

there is no indication anything prevented him from pursuing section

542 administrative remedies. See Nygen, 578 F. Supp. 3d at 152

(finding “no evidence that Nygren was prevented in any way from

fully pursuing his administrative remedies” and thus “no ‘cause

and prejudice’ exception” applies). Furthermore, the delay in

arriving at FMC Devens and the inability of the petitioner to earn

FSA credits prior to his arrival is distinct from an inability to

use section 542 administrative remedies to cure the denial of such

credits or the inaccuracy in the calculation of such credits.10

Indeed, the applicable regulations explain in detail how to use

the process and allow staff to assist an inmate in preparing an

appeal. See 28 C.F.R. §§ 542.13(a), 542.14(c), 542.15.

10 While this court sympathizes with the petitioner regarding the difficulties

he endured during transport to FMC Devens, including contracting COVID-19,

administrative exhaustion is required under the circumstances.

The petitioner therefore fails to show “cause” either by

showing circumstances beyond his control prevented him from

pursuing the section 542 remedies at FMC Devens or by showing

another basis for “cause.” See Dunbar, 649 F. Supp. 2d at 4

(stating “cause can be shown by demonstrating that there were

legitimate circumstances beyond the prisoner’s control [which]

preclude[d] him from fully pursuing his administrative remedies”)

(internal quotation marks omitted). Lacking a satisfactory

showing of cause, there is no need to address prejudice. See

Nygren, 578 F. Supp. 3d at 152 (If petitioner makes a “sufficient

showing of ‘cause,’ he must then address prejudice.”) (quoting

Dunbar, 649 F. Supp. 2d at 4). A dismissal of the petition without

prejudice is therefore appropriate. See, e.g., Nygren, 578 F.

Supp. 3d at 148, 154 (allowing respondent’s motion to dismiss for

failure to exhaust section 542 administrative remedies and

dismissing section 2241 petition seeking FSA time credits without

prejudice for failure to exhaust).

IV. CONCLUSION

In accordance with the foregoing discussion, the motion to

dismiss (D. 7) is ALLOWED to the extent the petition is dismissed

without prejudice.

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: January 23, 2023