James Lindsay v. TROY WILLIAMSON, WARDEN Appeal from the United States District Court for the Middle…

BLD-156
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-3387
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JAMES LINDSAY,
Appellant
v.
TROY WILLIAMSON, WARDEN
________________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 07-cv-00808)
District Judge: Honorable William W. Caldwell
________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 6, 2008
Before: McKEE, RENDELL and SMITH, Circuit Judges
(Filed: April 4, 2008)
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OPINION OF THE COURT
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PER CURIAM
James Lindsay filed a petition pursuant to 28 U.S.C. § 2241 to challenge the
refusal of the Bureau of Prisons (“BOP”) to transfer him from Lewisburg Federal Prison

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His projected release date is May 14, 2011.1
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Camp to a Community Correctional Center (“CCC”) or home confinement for the
remainder of his sentence. He attached a security classification form and complained1
that the BOP did not decrease his custody level or document the reasons why not, as he
alleged it should have. In his petition, he claimed that exhaustion of his administrative
remedies was futile. Before the petition had been served on the respondent, see Rule 4
foll. 28 U.S.C. § 2254, the Magistrate Judge recommended that Lindsay’s petition be
denied for failure to exhaust administrative remedies or, in the alternative, for lack of
merit. Over Lindsay’s objections, the District Court denied the petition for failure to
exhaust. Lindsay appeals and requests the appointment of counsel.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We will summarily affirm the
District Court because no substantial issue is presented on appeal. See L.A.R. 27.4;
I.O.P. 10.6.
Ordinarily, federal prisoners must exhaust available administrative remedies before
filing a petition under 28 U.S.C. § 2241. See Moscato v. Fed. Bureau of Prisons, 98 F.3d
757, 760 (3d Cir. 1996). In claiming exhaustion was futile, Lindsay admitted in his
petition that he never exhausted his administrative remedies. Although he alleged in his
petition that the BOP did not appropriately exercise its discretion and transfer him, he did
not indicate that he even registered an informal complaint with prison officials, let alone
followed all of the procedures available under 28 C.F.R. § 542.10 et seq..

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Lindsay claimed that exhaustion was futile because the BOP cannot be “expected
to follow other rules if they have already violated the current rules.” However, his legal
conclusion based on speculation is not enough to excuse his failure to exhaust his
administrative remedies.
Citing Jones v. Bock, 127 S. Ct. 910 (2007), in his objections, Lindsay also
claimed that his petition should not be denied sua sponte because exhaustion is an
affirmative defense, not a pleading requirement. As the District Court noted,
Jones interpreted the Prison Litigation Reform Act, holding that “inmates are not required
to specifically plead or demonstrate exhaustion in their complaints.” 127 S. Ct. At 921.
Lindsay proceeds under a different statute. Even if Jones applied here, the absence of a
requirement to specifically plead exhaustion does not bar a sua sponte dismissal where a
concession on the face of a petition exposes a bar to suit. See Ray v. Kertes, 285 F.3d
287, 293 n.5 (3d Cir. 2002).
Because the District Court could determine from the face of Lindsay’s petition that
he did not exhaust his administrative remedies, a prerequisite to suit, the District Court
properly dismissed Lindsay’s petition. Accordingly, we will summarily affirm the
District Court’s judgment. Also, we deny Lindsay’s motion for appointment of counsel.

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