Winifred Jiau v. Kaire Poole , 590 F. App'x 689 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WINIFRED JIAU, No. 13-15378
Petitioner - Appellant,
D.C. No. 3:12-cv-04193-SI
v.
KAIRE POOLE, PsyD and RANDY L. MEMORANDUM*
TEWS, Warden,
Respondents - Appellees.
WINIFRED JIAU, No. 13-15489
Plaintiff - Appellant,
D.C. No. 3:13-cv-00248-WHA
v.
KAIRE POOLE; RANDY L. TEWS,
Warden,
Defendants- Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
William Alsup, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted December 8, 2014
San Francisco, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and NAVARRO, Chief
District Judge.**
Petitioner Winifred Jiau appeals the sua sponte dismissals of her two cases
by the district court. Jiau’s 28 U.S.C. § 2241 habeas petition and her action
brought under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), both allege constitutional violations in connection
with her expulsion from the Residential Drug Abuse Treatment Program
(“RDAP”). Therefore, these cases were consolidated on appeal. We review de
novo. Close v. Thomas, 653 F.3d 970, 973 (9th Cir. 2011); Adams v. Johnson, 355
F.3d 1179, 1183 (9th Cir. 2004). We affirm the dismissal of Jiau’s habeas petition
and vacate and remand the dismissal of her Bivens action.
The district court sua sponte dismissed Jiau’s habeas petition without
prejudice citing her failure to exhaust her administrative remedies prior to filing
her action. Though exhaustion of administrative remedies is not a jurisdictional
prerequisite for habeas petitions, courts generally “require, as a prudential matter,
that habeas petitioners exhaust available judicial and administrative remedies
**
The Honorable Gloria M. Navarro, Chief District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.
2
before seeking [such] relief.” Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir.
2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30
(2006). Accordingly, because Jiau had failed to exhaust her administrative
remedies at the time she filed her petition, the district court correctly dismissed her
habeas action. Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011);
Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986).
The district court sua sponte dismissed Jiau’s Bivens action citing that by
seeking readmission into RDAP, her claims necessarily implicated the duration of
her confinement and success on those claims would entitle her to an earlier release;
therefore, under Skinner v. Switzer, 131 S. Ct. 1289 (2011), those claims could
only be raised in a habeas petition. In Skinner, the Supreme Court held that habeas
is the exclusive remedy for a prisoner who seeks immediate or speedier release
from confinement, but it limited this exclusivity only to actions where success on
the claims would “necessarily spell speedier release.” Skinner, 131 S. Ct. at 1293
(citing Wilkinson v. Dotson, 544 U.S. 74 81–82 (2005)). Accordingly, implicit in
the district court’s order is a finding that readmission into RDAP would
“necessarily spell speedier release” for Jiau.
The language in the applicable statute, however, indicates that successful
completion of RDAP does not necessarily result in a reduced sentence, but rather
3
that the Bureau of Prisons (“BOP”) retains discretion over whether to grant a
sentence reduction to a prisoner who completes the program. See 18 U.S.C. §
3621(e)(2)(B) (“The period a prisoner convicted of a nonviolent offense remains in
custody after successfully completing a treatment program may be reduced by the
Bureau of Prisons . . . .”) (emphasis added). Moreover, the discretion provided to
the BOP under the statute to decide whether to grant a sentence reduction, even
after a prisoner successfully completes RDAP, has been explicitly recognized by
both the Supreme Court and this Court. Lopez v. Davis, 531 U.S. 230, 241 (2001)
(“When an eligible prisoner successfully completes drug treatment, the Bureau
thus has the authority, but not the duty, . . . to reduce his term of imprisonment.”);
Cort v. Crabtree, 113 F.3d 1081, 1085 (9th Cir. 1997) (“[E]ven when a statutorily
eligible prisoner successfully completes the treatment program, the Bureau retains
discretion under the statute to grant or deny a sentence reduction.”). Therefore,
even if success in Jiau’s Bivens action would lead to her reinstatement into RDAP,
that reinstatement, and her presumed successful completion of the program, would
still not “necessarily” result in a sentence reduction and speedier release.
Accordingly, the district court’s dismissal of Jiau’s Bivens action is vacated and
remanded.
4
Appeal No. 13-15378 is AFFIRMED. Appeal No. 13-0248 is VACATED
and REMANDED. Each party shall bear its costs on appeal.
5