Winifred Jiau v. Kaire Poole

MEMORANDUM

Petitioner Winifred Jiau appeals the sua sponte dismissals of her two cases by the district court. Jiau’s 28 U.S.C. § 2241 ha-beas petition and her action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), both allege constitutional violations in connection with her expulsion from the Residential Drug Abuse Treatment Program (“RDAP”). Therefore, these cases were consolidated on appeal. We review de novo. Close v. Thomas, 653 F.3d 970, 973 (9th Cir.2011); Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004). We affirm the dismissal of Jiau’s habeas petition and vacate and remand the dismissal of her Bivens action.

The district court sua sponte dismissed Jiau’s habeas petition without prejudice citing her failure to exhaust her administrative remedies prior to filing her action. Though exhaustion of administrative remedies is not a jurisdictional prerequisite for habeas petitions, courts generally “require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking [such] relief.” Castro-Cortez v. INS, 239 F.3d 1037 , 1047 (9th…