The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ELLIS BROWN PETITIONER
VS. CIVIL ACTION NO. 3:23CV607TSL-LGI
WARDEN C. HARRISON RESPONDENT
ORDER
This cause is before the court on the July 27, 2024 report
and recommendation of United States Magistrate Judge LaKeysha G.
Issac. Therein, she recommended that Brown’s § 2241 petition be
dismissed for failure to exhaust. Brown has filed an objection to
the report and recommendation, and the court, having reviewed the
report and recommendation and petitioner’s objection, and having
conducted a de novo review, concludes that the objection should be
overruled, the report and recommendation should be adopted as the
opinion of the court and the petition should be dismissed based on
Brown’s failure to exhaust.
By his petition, Brown raised multiple challenges to the
Bureau of Prisons’ (BOP) calculation of his First Step Act Time
Credits (FTC), which can be applied toward earlier placement in
pre-release custody, such as Residential Reentry Centers (RRCs)
and home confinement, and/or earlier release to commence a term of
supervised release. In the brief in support of the petition,
Brown conceded that he had not completed the BOP’s three-step
1
administrative remedy process as to any of the four grounds
asserted. He explained with regard to grounds one and two that
his counselor would not return a signed BP-8 form (indicating that
he had attempted informal resolution); his case manager thereafter
advised him to file a first level BP-9 form but also stated that a
BP-9 filed without a signed BP-8 would be denied; and his request
to speak to the warden about the situation was denied. Regarding
grounds three and four, petitioner stated that he was told that
only the warden could grant the requested relief, and so, more
than thirty days before filing his petition, he sent the warden
multiple electronic requests for relief and spoke to him about it
in person. Petitioner argued that his “more than reasonable
effort to resolve the above issues through the BOP’s
Administrative Remedy path” satisfied the exhaustion requirement.
In his January 18, 2024, opposition to the petition,
respondent asserted, among other reasons, that dismissal was
required based on Brown’s failure to exhaust. Despite
respondent’s challenge to his exhaustion efforts, petitioner did
not file a rebuttal, and on July 27, 2024, the magistrate judge
issued her report and recommendation correctly concluding on the
record before her that Brown had failed to complete the BOP’s
required administrative exhaustion process in accordance with the
BOP’s procedural rules and that any failure to receive a signed
2
BP-8 or having a BP-9 denied would not have rendered the
administrative remedies unavailable or resort to them futile.
Instead, as set out in the report and recommendation, denial of a
BP-9 for any reason would have permitted petitioner to pursue an
appeal to the Regional Director. Brown clearly did not sustain
his burden to demonstrate the futility of administrative review.
See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994).
By his objection, Brown now claims that the reason that he
did not fully pursue his administrative remedies before filing his
petition was that he feared retaliation from his then-unit
counselor,1 who was known to mistreat inmates and retaliate
against them when they complained. The objection also details his
efforts to exhaust his claims after he received the government’s
opposition to his petition in January. He submits that his more
recent attempt was equally as futile as the first.
The court will not consider petitioner’s new argument to
excuse exhaustion. He clearly had an opportunity to present this
reason to the magistrate judge, either in his petition or in
rebuttal to the government’s opposition and did not do so. See
Finley v. Johnson, 243 F.3d 215, 219 n.3 (5th Cir. 2001) (citation
omitted) (“[I]ssues raised for the first time in objections to the
1 According to petitioner, he was moved to a different unit in
September 2023.
3
report of a magistrate judge are not properly before the district
judge.”).
Based on the foregoing, it is ordered that petitioner’s
objection is overruled and the July 26, 2024 report and
recommendation is adopted as the opinion of the court. It follows
that the petition will be dismissed without prejudice for failure
to exhaust.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 21st day of August, 2024.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
4