Russell Cline v. LINDA SANDERS, Warden, USP-Lompoc

This disposition is not appropriate for publication and is not precedent except as*
provided by 9th Cir. R. 36-3.
The panel unanimously concludes that this case is suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Edward R. Korman, Senior United States District Judge for the***
Eastern District of New York, sitting by designation.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL CLINE,
Petitioner - Appellant,
v.
LINDA SANDERS,
Warden, USP-Lompoc
Respondent - Appellee.
No. 11-56113
D.C. No. 10-cv-8998-VAP-VBK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted January 11, 2013**
Pasadena, California
Before: O’SCANNLAIN and W. FLETCHER, Circuit Judges, and KORMAN,
Senior District Judge.***
FILED
JAN 30 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Russell Cline, who at the time of the filing of this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 was serving a federal prison sentence, appeals
from a judgment of the district court dismissing his petition on the ground that he
failed to exhaust his administrative remedies. On this appeal, he argues that he was
denied the benefits of the Residential Drug Abuse Program (“RDAP”) at FCC
Lompoc in retaliation for the exercise of his constitutional rights in “challenging what
he believed to be inappropriate and illegal BOP actions at the RDAP in Lompoc.”
The successful completion of the program would have rendered him eligible for a one-
year reduction of his sentence under 18 U.S.C. § 3621(e)(2)(B).
The magistrate judge, whose recommendation was adopted by the district court,
discussed the rule requiring exhaustion and observed that petitioner had not yet
exhausted his administrative remedies. Although the magistrate judge observed that
petitioner “argues that this Court should waive the exhaustion requirement . . .
[because] exhaustion would be futile and Petitioner fears retaliation,” he did not
discuss that argument; instead, without any further discussion, he held that “Petitioner
has failed to exhaust his administrative remedies; as such, the Petition must be
dismissed.”
While it is common ground that petitioner was required to exhaust his
administrative remedies, we recently held that “exhaustion can be waived if pursuing

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those [administrative] remedies would be futile,” Ward v. Chavez, 678 F.3d 1042,
1045 (9th Cir. 2012) (alteration in original) (internal quotation marks omitted). Under
these circumstances, because the question of futility should be first addressed by the
district court in order to enable us to evaluate the propriety of the district court’s
decision, we remand the case to the district court for that purpose.
We add these brief words with respect to the issue of whether the appeal is
moot because petitioner has completed his sentence and is no longer in custody. We
have held that, notwithstanding these circumstances, a petition in a case such as this
is not moot because, if successful in obtaining what would be in essence a declaratory
judgment, the petitioner may then seek to have his three-year term of supervised
release reduced. Serrato v. Clark, 486 F.3d 560, 565 & n.2 (9th Cir. 2007).
Nevertheless, such a remedy is available solely in the discretion of the district court
only “if it is satisfied that such action is warranted by the conduct of the defendant
released and the interest of justice.” 18 U.S.C. § 3583(e)(1).
VACATED AND REMANDED.

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