                                                                                      FILED
                               NOT FOR PUBLICATION                                     JAN 30 2013

                                                                                  MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                               U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



 RUSSELL CLINE,                                         No. 11-56113

                Petitioner - Appellant,                 D.C. No. 10-cv-8998-VAP-VBK

   v.
                                                        MEMORANDUM *
 LINDA SANDERS,
 Warden, USP-Lompoc

                Respondent - Appellee.


                      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.***



         *
              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.

                                                1
      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



                                           2
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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