     Case: 18-11392      Document: 00515122465         Page: 1    Date Filed: 09/18/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-11392                        September 18, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
WENDI S. HAYWARD,

                                                 Petitioner-Appellant

v.

JODY UPTON,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:18-CV-584


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Wendi S. Hayward, federal prisoner # 44371-177, appeals the dismissal
of her 28 U.S.C. § 2241 habeas petition for failure to exhaust administrative
remedies. She argued that the Bureau of Prisons (BOP) erroneously assesses
eligibility for participation in the Residential Drug Abuse Program (RDAP) on
a categorical basis rather than the individual basis set forth under 18 U.S.C.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       Case: 18-11392   Document: 00515122465     Page: 2   Date Filed: 09/18/2019


                                 No. 18-11392

§ 3621(b). Hayward also has filed a motion for an emergency injunction to
secure her immediate placement into RDAP.
        Hayward does not dispute that she failed to exhaust her administrative
remedies. She instead argues that such a step would have been futile because
the BOP would clearly reject her claim and asserts any additional delay in her
ability to participate in RDAP will cause her irreparable harm.
        To obtain relief under § 2241, Hayward must establish that she is in
custody in violation of either the Constitution or federal law. See § 2241(c)(3);
Fillingham v. United States, 867 F.3d 531, 536 (5th Cir. 2017), cert. denied,
138 S. Ct. 1035 (2018). We review the dismissal of a claim for failure to exhaust
administrative remedies for abuse of discretion. Gallegos-Hernandez v. United
States, 688 F.3d 190, 194 (5th Cir. 2012).
        “[A] federal prisoner filing a § 2241 petition must first pursue all
available administrative remedies.”        Id.   “Exceptions to the exhaustion
requirement are appropriate where the available administrative remedies
either are unavailable or wholly inappropriate to the relief sought, or where
the attempt to exhaust such remedies would itself be a patently futile course
of action.” Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (internal quotation
marks and citation omitted). Hayward has not made that showing as an
administrative grievance would have afforded the BOP an opportunity to
respond to her claim that it should consider the § 3621(b) factors when
assessing her eligibility for RDAP and place her in the program immediately,
see id., and, thus, the district court did not abuse its discretion in dismissing
her § 2241 petition for failure to exhaust, see Gallegos-Hernandez, 688 F.3d at
194.
        The judgment of the district court is AFFIRMED. The motion for an
emergency injunction is DENIED.



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