                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 24 2012

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




                            FOR THE NINTH CIRCUIT



BENJAMIN SCHWARZ,                                No. 11-56114

               Petitioner - Appellant,           D.C. No. 5:10-cv-01728-MMM

  v.
                                                 MEMORANDUM *
ERWIN MEINBERG, Acting Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                   Margaret M. Morrow, District Judge, Presiding

                              Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Federal prisoner Benjamin Schwarz appeals pro se from the district court’s

judgment dismissing his 28 U.S.C. § 2241 habeas petition. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Schwarz’s habeas petition challenges the Bureau of Prisons’ refusal, on the

basis of his Canadian nationality, to designate him to serve his sentence in a prison

camp. He further asserts that unsanitary toilet conditions at his prison facility

violate the Eighth Amendment. We need not resolve whether the district court

properly dismissed the petition without prejudice on the basis that the claims

should have been brought in an action under Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In either case, Schwarz was

required to exhaust his administrative remedies before proceeding with his claims

in federal court. See Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir. 1991)

(Bivens action); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (per

curiam) (§ 2241 petition). Schwarz has not exhausted his administrative remedies

with respect to his camp designation claim because he failed to complete his final

administrative appeal to the General Counsel, see 28 C.F.R. § 542.15(a), and has

not exhausted his remedies for his toilet conditions claim because he failed to

proceed beyond the informal staff resolution stage, see id. § 542.13(a). We

therefore affirm the district court’s dismissal of Schwarz’s petition without

prejudice. See Manta v. Chertoff, 518 F.3d 1134, 1146 (9th Cir. 2008) (appellate

court may affirm on any ground supported by the record).

      Schwarz further contends that the district court erred by permitting


                                           2                                      11-56114
respondent to file a motion to dismiss his petition rather than an answer, and by

permitting a time limit exceeding the limits specified in 28 U.S.C. § 2243. This

contention fails. See Rule 4 of the Rules Governing § 2254 Cases (Rule 4) (unless

a habeas petition is summarily dismissed, “the judge must order the respondent to

file an answer, motion, or other response within a fixed time”); White v. Lewis, 874

F.2d 599, 602 (9th Cir. 1989) (Rule 4 permits the filing of a motion to dismiss a

habeas petition); Clutchette v. Rushen, 770 F.2d 1469, 1474-75 (9th Cir. 1985)

(Rule 4 contains no fixed time requirement and gives district courts discretion to

set appropriate deadlines for responses to habeas petitions).

      Schwarz’s requests for attorney’s fees, costs, sanctions, and the initiation of

disciplinary proceedings against respondent’s counsel are denied.

      AFFIRMED.




                                          3                                    11-56114
