       CLD-071                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 15-2517
                                      ____________

                                TYRRELL L.J. EILAND,
                                                   Appellant

                                             v.

                              WARDEN FORT DIX FCI
                        __________________________________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. Civ. No. 1-15-cv-02995)
                           District Judge: Noel L. Hillman
                       __________________________________

            Submitted for Possible Dismissal under 28 U.S.C. 1915(e)(2) or
          Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  December 3, 2015

              Before: FISHER, JORDAN and VANASKIE, Circuit Judges

                                (Filed: December 14, 2015)
                                       ____________

                                        OPINION
                                      ____________


PER CURIAM

       Tyrone Eiland appeals from an order of the District Court dismissing his petition

for writ of habeas corpus, 28 U.S.C. § 2241, for lack of jurisdiction. For the reasons that

follow, we will summarily affirm.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Eiland, a federal prisoner, filed his § 2241 petition in the United States District

Court for the District of New Jersey, alleging that he is receiving inadequate medical care

at his place of incarceration, FCI Fort Dix, that he has a pre-existing condition which

requires specialized care, that his medications were late, that appointments have not been

made, and that his unspecified medical condition is becoming worse. Eiland also

contended that the prison is overcrowded and unclean to the point of posing a health and

security risk to inmates, and that he was sexually assaulted by another inmate. Eiland

alleged that his constitutional rights were violated when, in retaliation for grievance

reports he filed, he was issued an incident report that carried with it severe sanctions and

penalties. Last, Eiland alleged that the Bureau of Prisons (“BOP”) miscalculated his

sentence and custody level.

       In an order entered on June 8, 2015, the District Court dismissed the entire § 2241

petition for lack of jurisdiction. The Court reasoned that Eiland was challenging the

conditions of his confinement rather than the execution of his sentence, and thus that

habeas corpus was not an available remedy, see Leamer v. Fauver, 288 F.3d 532, 542 (3d

Cir. 2002). The Court explained that Eiland could bring his claims in a civil rights action

pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), after exhausting his administrative remedies as required by 42 U.S.C. §

1997e(a). See Jones v. Bock, 549 U.S. 199 (2007). With respect to the claim related to

the calculation of his sentence, the District Court determined that that such a claim must

be brought by way of a motion to vacate sentence under 28 U.S.C. § 2255, and advised

Eiland that he should bring his sentence-calculation challenge in the Southern District of

New York, where he was sentenced.

                                              2
       Eiland appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk granted

him leave to appeal in forma pauperis and advised him that the appeal was subject to

summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary action under Third Cir.

LAR 27.4 and I.O.P. 10.6. The parties were invited to submit argument in writing. The

Warden has done so; Eiland has not.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. To the

extent that Eiland challenged the adequacy of the medical care he is receiving, the

Warden’s response to his alleged sexual assault, the conditions at the prison, improper

retaliatory conduct by prison officials, and his custody level, his claims do not sound in

habeas corpus. See Leamer, 288 F.3d at 542. The District Court’s dismissal of Eiland’s

§ 2241 petition without prejudice to his right to file a proper civil rights action was

correct. The proper means for seeking relief for these conditions of confinement claims

is a civil rights action against the Bureau of Prisons under Bivens, after available

administrative remedies have been exhausted, 42 U.S.C. 1997e(a). See Jones, 549 U.S.

at 216 (failure to exhaust is an affirmative defense; inmates are not required to specially

plead or demonstrate exhaustion in their complaints).

       But, as the Warden has respectfully noted in his summary action response, section

2241 allows a prisoner to challenge the execution of his sentence, Woodall v. Federal

Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). Eiland’s claim that the BOP

incorrectly calculated his sentence, if successful, would result in his speedier release from

custody; it thus lies at “the core of habeas corpus.” Wilkinson v. Dotson, 544 U.S. 74, 82

(2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). District Courts thus

                                              3
have jurisdiction under § 2241 to consider petitions brought by inmates, like Eiland, who

allege that the BOP miscalculated their sentences. Section 2241, and not § 2255, confers

habeas jurisdiction to hear the petition of a federal prisoner who is challenging the

execution rather than the validity of his sentence. Coady v. Vaughn, 251 F.3d 480, 485

(3d Cir. 2001). See also Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990).

       We will summarily affirm nonetheless because the documents that accompany

Eiland’s § 2241 petition do not indicate that he exhausted his administrative remedies

with respect to his sentence calculation claim. The failure to exhaust deprives the BOP of

the opportunity to create an administrative record and provide the factual and legal basis

for its decision. Without an administrative record, there is nothing for a Court to review.

We know from the Sentence Monitoring Computation Data document that Eiland

submitted with his § 2241 petition, and the publicly available docket for United States v.

Eiland, D.C. Crim. No. 09-cr-00950, that Eiland was sentenced on April 30, 2010 in the

United States District Court for the Southern District of New York to a term of probation

of 4 years for student loan fraud. But he violated the terms of his probation and, on

December 1, 2014, he was sentenced to a term of imprisonment of 16 months. His

sentence was calculated to begin on the day it was imposed, and he received 97 days of

prior custody credit. With good conduct time, his expected release date was October 24,

2015, at which point he would have spent about 14 months in custody on a sixteen-month

sentence. His full sentence is set to expire on December 25, 2015. Beyond this, Eiland

does not elaborate on his claim, and his sentence does not reveal any obvious

irregularities.



                                             4
       Exhaustion is a precondition to bringing suit. See Small v. Camden County, 728

F.3d 265, 269 (3d Cir. 2013). Giving an agency the opportunity to correct its errors is a

central purpose of the exhaustion requirement. See Woodford v. Ngo, 548 U.S. 81, 89

(2006). The Supreme Court has explained that:

              Because exhaustion requirements are designed to deal with parties who do
              not want to exhaust, administrative law creates an incentive for these
              parties to do what they would otherwise prefer not to do, namely, to give
              the agency a fair and full opportunity to adjudicate their claims.
              Administrative law does this by requiring proper exhaustion of
              administrative remedies, which means using all steps that the agency holds
              out, and doing so properly (so that the agency addresses the issues on the
              merits).

Id. (citations and internal quotation marks removed). The lack of a record here is a

problem of Eiland’s creation, owing to his failure to exhaust. Accordingly, we will

summarily affirm the District Court’s dismissal of his § 2241petition on the basis of

failure to exhaust administrative remedies to the extent that he stated a cognizable

sentence calculation claim.

       For the foregoing reasons, we will summarily affirm the order of the District

Court, with the modification noted.




                                             5
