Jimmy Q. Green v. RICK V. VEACH, Warden

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2007*
Decided February 1, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-3151
JIMMY Q. GREEN,
Plaintiff-Appellant,
v.
RICK V. VEACH, Warden,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division
No. 2:06-CV-96-LJM-WTL
Larry J. McKinney,
Chief Judge.
O R D E R
Jimmy Green was convicted in the United States District Court for the
Eastern District of Michigan of possession of a firearm by a felon, see 18 U.S.C.
§ 922(g)(1), and was sentenced to a term of 80 months’ imprisonment, which he is
now serving at the United States Penitentiary at Terre Haute, Indiana. He filed in
the Southern District of Indiana a petition for a writ of habeas corpus, see 28 U.S.C.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-3151 Page 2
§ 2241, claiming that the Bureau of Prisons improperly classified him as a high-risk
inmate and placed him in a high-security prison based on erroneous information
contained in his presentence investigation report. The district court denied the
petition because Green failed to exhaust his administrative remedies. We affirm.
After his conviction and sentence became final, Green filed a motion with the
sentencing court in the Eastern District of Michigan seeking to have his
presentence investigation report amended to remove all references to the probation
officer’s recommendation that he receive an upward adjustment under U.S.S.G.
§ 2K2.1(b)(5); the probation officer thought that adjustment was warranted
because, he believed, Green had possessed the gun in connection with an assault
committed against his wife. At sentencing, the court had found the adjustment
inapplicable, but nevertheless declined to strike the recommendation from the
report. Then in response to Green’s post-judgment motion, the sentencing court
held on the strength of United States v. Warner, 23 F.3d 287, 290 (10th Cir. 1994),
that it lacked jurisdiction to consider a challenge to a presentence report after the
sentence was imposed.
Green then filed an inmate complaint asking that prison administrators
amend his presentence report so that his “custody points would drop” and he would
be eligible for transfer from the high-security penitentiary at Terre Haute to a low-
security facility closer to his family in Detroit. The warden responded to Green’s
request for administrative relief by informing him that any alteration to the
presentence report must be done by the United States Probation Office, over which
the BOP has no authority, and noting that the prison had forwarded his request to
the Probation Office for review. Green did not appeal the warden’s decision. The
Probation Office responded in writing, setting forth why it believed the report to be
correct and stating that only the sentencing judge has the power to order changes to
the report after it has been disclosed. The prison conveyed this response to Green
and took no further action.
The BOP has established a formal administrative process for reviewing
inmate complaints concerning the conditions of their confinement. The regulations
first require inmates to pursue informal resolution of their grievances. 28 C.F.R.
§ 542.13. If this is unsuccessful, an inmate may file a written complaint with the
warden. Id. § 542.14. If dissatisfied with the warden’s response, an inmate may
appeal to the Regional Director and, if still dissatisfied, to the General Counsel for a
final decision. Id. § 542.15. Under 42 U.S.C. § 1997e(a), an inmate challenging the
conditions of his confinement must exhaust all available administrative remedies
before seeking relief from the courts under any federal law.
Here, the district judge correctly concluded that Green failed to exhaust his
administrative remedies within the prison system by electing not to appeal the

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No. 06-3151 Page 3
warden’s decision. Green argues that an appeal would have been futile when the
BOP “by law could provide no remedy.” Presumably Green refers to the warden’s
conclusion that only the Probation Office can alter a presentence report. But even if
denial of the requested relief is the most likely outcome, that alone is insufficient
justification for excusing Green from the exhaustion requirement. See Perez v. Wis.
Dep’t of Corr., 182 F.3d 532, 537–38 (7th Cir. 1999) (holding that there is no futility
exception to § 1997e(a)). As we’ve said before, “[l]ightning may strike” and even if it
doesn’t, the BOP may conduct further investigation or provide additional reasoning
for its determination that will aid the district court in considering the merits of the
claim. Greene v. Meese, 875 F.2d 639, 641 (7th Cir. 1989).
AFFIRMED.

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