M Broderick v. W Chapman , 364 F. App'x 111 ( 2010 )

Case: 09-10531 Document: 00511021358 Page: 1 Date Filed: 02/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 5, 2010
No. 09-10531
Summary Calendar Charles R. Fulbruge III
Clerk
M. ELIZABETH BRODERICK,
Petitioner - Appellant
v.
W. ELAINE CHAPMAN,
Respondent - Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CV-1720
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
M. Elizabeth Broderick is an inmate at the Carswell Federal Medical
Center in Fort Worth, Texas. After being denied consideration for release under
the provisions of a new program, she filed a 28 U.S.C. § 2241 petition. The
petition was denied because Broderick failed to exhaust her administrative
remedies. We AFFIRM.
Broderick is 65 years old. She is serving a 200 month sentence for mail
fraud, money laundering, and other offenses.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-10531 Document: 00511021358 Page: 2 Date Filed: 02/05/2010
No. 09-10531
Sentenced in 1997, Broderick should be released in December 2010 due to
the application of good conduct time credits.
On September 22, 2008, Broderick submitted a grievance form to prison
authorities requesting relief under the Second Chance Act. See Pub. L. 110-199,
122 Stat. 657. She made several claims, including that she was entitled to be
released in accordance with the Act, and that she was entitled to compensation
for personal injuries and for copyright violations related to the use of her name
by prison authorities. On October 28, 2008, the Warden responded with an
explanation of the operation of the Second Chance Act, said that Broderick
would be reviewed for Residential Reentry Center placement about eighteen
months before her projected release date, and addressed other claims. Broderick
was told she could pursue the grievance further. She did not do so.
A week after filing her grievance – well before the prison’s response was
given – Broderick filed a Section 2241 petition in district court. Among her
several claims was that she had a right “to consideration for placement in the
pilot program removing eligible elderly offenders from a Bureau of Prisons
facility and placing such offenders on home detention until the expiration of
th[eir] prison term.” She sought to have the Bureau of Prisons ordered to
implement a Pilot Program and then review her for placement in it.
The district court found that the Pilot Program on which Broderick now
centered her attention was one of many programs and changes brought about by
the Second Chance Act. Broderick’s September 2008 administrative request had
not sought implementation of nor consideration under the Elderly Inmate Pilot
Program and just referred generally to the Act. Not having raised this claim
administratively, Broderick could not proceed in district court. Broderick’s
petition was dismissed for failure to exhaust administrative remedies.
A federal prisoner seeking relief pursuant to Section 2241 must first
exhaust her administrative remedies through the Bureau of Prisons. Fuller v.
2
Case: 09-10531 Document: 00511021358 Page: 3 Date Filed: 02/05/2010
No. 09-10531
Rich, 11 F.3d 61, 62 (5th Cir. 1994). The district court’s dismissal of a petition
for failure to exhaust is reviewed for abuse of discretion. Id. “[E]xceptions to the
exhaustion requirement apply only in ‘extraordinary circumstances’” with the
inmate’s bearing the burden of showing administrative review would be futile.
Id. (citing DCP Farms v. Yeutter, 957 F.2d 1183, 1189 (5th Cir. 1992)).
On appeal, Broderick argues that her failure to request home confinement
under the Pilot Program was excusable. That is because the program did not
exist at the time she filed her grievance; she should be afforded liberal
construction because she is a pro se litigant; and the Warden recognized her
request as seeking relief under the Pilot Program.
Though we read Broderick’s pleadings liberally, that does not allow us to
ignore that she did not give prison officials the first opportunity to consider her
complaints about the Pilot Program. The Bureau of Prisons issued on February
5, 2009, an Operations Memo detailing the Elderly Inmate Pilot Program. If
Broderick’s eligibility for it has not already been resolved, she may pursue that
now and raise any complaints through proper administrative procedures.
Not only were Broderick’s claims about the Pilot Program not part of the
administrative review she initiated, she quickly abandoned the administrative
process even on the claims she did make.1 Indeed, she brought this suit even
before the initial administrative ruling was made.
The district court did not abuse its discretion in finding that Broderick
failed to exhaust administrative remedies. AFFIRMED.
1
An inmate is to seek informal discussion, then appeal to the Warden, 28 C.F.R. §
542.14, then to the Regional Director, 28 C.F.R. § 542.15, and finally to the Office of General
Counsel. 28 C.F.R. § 542.15. The inmate has not exhausted her administrative remedies until
she has filed at all levels. Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993).
3