Davis v. Outlaw

Filing 25

ORDER dismissing, with prejudice, 1 Petitioner's Petition for Writ of Habeas Corpus and denying, as moot, 21 Petitioner's Motion for Relief. Signed by Magistrate Judge Beth Deere on 9/17/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION J O H N M. DAVIS R e g # 84034-012 V S. NO. 2:09-cv-00006-BD PETITIONER

T .C . OUTLAW, Warden, Federal Correctional Complex, F o r r e st City, Arkansas

R ESPON D EN T

ORDER P e titio n e r is in custody at the Federal Correctional Complex (FCC), Forrest City, A rk a n sa s . He brings this pro se petition for writ of habeas corpus (docket entry #2) under 2 8 U.S.C. § 2241, seeking review of his eligibility for transfer to a Residential Reentry C e n te r ("RRC").1 For the reasons set forth below, the petition must be DISMISSED. I. F acts P e titio n e r John M. Davis pled guilty in the United States District Court for the W e s te rn District of Oklahoma to possession of a firearm with the manufacturer's serial n u m b e rs removed or obliterated after the firearm had been transported in interstate or f o re ig n commerce, a violation of 18 U.S.C. § 922(k). Petitioner was sentenced to sixty m o n th s in the Bureau of Prisons ("BOP").

As of March 31, 2006, the BOP began referring to Community Corrections C e n te rs ("CCC") as Residential Reentry Centers. 1

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On June 19, 2008, the BOP's Regional Director denied petitioner's appeal seeking e a rly RRC placement. (#24-2 at pp. 1-2) According to BOP records, Petitioner did not a p p e a l the decision to the Office of the General Counsel. (#24-2 at p.1) O n July 23, 2009, BOP staff completed an RRC needs assessment for Petitioner. Staff recommended a five to six month RRC placement. (#24-2 at p. 7) BOP records in d ic a te that Petitioner has not grieved the recommendation. (#24-2 at p. 2) II. A n a ly sis A. E x h a u s tio n of Administrative Remedies

In his initial response, Respondent contends that Petitioner failed to exhaust his a d m in is tra tiv e remedies and that Petitioner's claim is not ripe for consideration by this C o u rt because, under the BOP's policy, he would not be considered for RRC placement u n til March, April, or May of 2008, i.e., eleven to thirteen months prior to his release d a te . In his supplemental response (#24), Respondent acknowledges that BOP staff have p e rf o rm e d the required RRC assessment (#24-2) recommending Petitioner for a five to s ix month placement, but continues to argue that Petitioner has not exhausted his a d m in is tra tiv e remedies. Prisoners are generally required to exhaust their administrative remedies before f ilin g a petition pursuant to 28 U.S.C. § 2241. See United States v. Chappel, 208 F.3d 1 0 6 9 (8th Cir.2000). However, exhaustion is not required if it would be futile. Thurman

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v. Sanders, No. 2:06CV00114-SWW-HDY, 2006 WL 2372493 at *2 (E.D. Ark. Aug. 14, 2 0 0 6 ) (citing Ortiz v. Fleming, 2004 WL 389076 (N.D. Texas 2004)). U n d e r 28 C.F.R. § 542.13(a), an inmate aggrieved by an action of the BOP must f irs t present the issue informally to staff. If he or she is dissatisfied with the result of the in f o rm a l process, the inmate may then pursue a three-step formal grievance process. In th e formal process, the prisoner appeals to the Warden, then to the Regional Director, and la s t, to the Office of General Counsel. The prisoner's administrative remedies have not b e e n exhausted until his grievance has been filed and denied at each step. See Thurman v . Sanders, No. 2:06CV00114-SWW-HDY, 2006 WL 2372493 at *2 (E.D. Ark. 2006). Regarding his failure to exhaust, Petitioner makes two arguments. First, he argues th a t he did file an appeal of the Regional Director's denial of early RRC placement with th e Office of General Counsel, but never received a response. This argument is contrary to BOP records which indicate Petitioner never filed such an appeal. Petitioner does not c o n te s t Respondent's claim that he has not grieved the BOP's recommendation of a five to six months of RRC placement, but claims that because of the time sensitivity of this m a tte r the grievance process would be futile. Given these facts, the Court finds that P e titio n e r has not exhausted his administrative remedies, however, because of the time lim ita tio n s involved with Petitioner's claim, the grievance process would be futile and a d is c u s sio n of the merits is warranted.

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B.

R R C Placement

In Fults v. Sanders, 442 F.3d 1088 (8th Cir.2006), the Eighth Circuit Court of A p p e a ls ruled that a regulation adopted by the BOP on December 14, 2005, which limited p la c e m e n t in an RRC to the last ten percent of an inmate's sentence, was invalid because th e BOP was not making individual placement decisions based on the factors set forth in 1 8 U.S.C. § 3621(b). After the ruling in Fults, the BOP modified its procedures for in s titu tio n s in this circuit to evaluate inmates for RRC placement utilizing the procedures o u tlin e d in Program Statement 7310.04 (the "Program Statement"), Community C o rre c tio n s Center Utilization and Transfer Procedure, dated December 16, 1998. Under th e Program Statement, the BOP makes individual decisions about RRC placement based o n the factors set forth in 18 U.S.C. § 3621(b), including the length of sentence, s e rio u sn e s s of current offense, criminal history, programming needs of the inmate, a v a ila b ility of facilities, availability of necessary healthcare, public safety, etc. Under paragraph 9(a)(1) of the Program Statement, an inmate may be referred for p la c e m e n t to an RRC up to six months in advance of his or her release date, with p la c e m e n t beyond that "possible with extraordinary justification." The Program S ta te m e n t further provides in paragraph 8(c) that the inmate's unit team will make re c o m m e n d a tio n s regarding RRC placement eleven to thirteen months before the in m a te 's projected release date.

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Petitioner argues that because he has "no record of violence, no detainers, no p e n d in g charges, no disciplinary-action, . . . has twice . . . completed [half] way houses [ s ic ] with zero problems," and desires to be a productive member of society, the BOP's d e n ia l of a one year RRC placement is "arbitrary and capricious." (#17 at p. 2) In Lopez v. Davis, 531 U.S. 230, 244 (2001), the Supreme Court recognized that " `[ e ]v e n if a statutory scheme requires individualized determinations . . . the d e c is io n m a k e r has the authority to rely on rulemaking to resolve certain issues of general a p p lic a b ility unless Congress clearly expresses an intent to withhold that authority.' " Lopez, 531 U.S. at 244, 121 S.Ct. 714, (2001) (quoting American Hospital Ass'n v. N L R B , 499 U.S. 606, 612, 111 S.Ct. 1539,(1991)). Congress granted the BOP authority to designate the place of an inmate's imprisonment under 18 U.S.C. § 3621(b). Further, C o n g re s s burdened the BOP with a qualified obligation under 18 U.S.C. § 3624(c) to e n s u re placement under pre-release conditions except where placement is not practicable. The duty to place a prisoner in conditions affording the prisoner a reasonable o p p o rtu n ity to prepare for re-entry in to the community, however, does not extend beyond th e last six months of a prisoner's sentence. See Elwood v. Jeter, 386 F.3d 842, 846-47 (8 th Cir. 2004).2 By allowing inmates to transfer to an RRC for longer than six months

B O P guidance issued in the light of the Second Chance Act includes an " a d ju s tm e n t" to PS 7310.04, which states that "RRC needs can usually be accommodated b y a placement of six months or less," and that placement in an RRC for more than six m o n th s must be approved in writing by a regional director of the BOP. 5

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under extraordinary circumstances, the Program Statement conforms with the Eighth C irc u it's holding in Elwood that the BOP has discretion to transfer prisoners to c o m m u n ity confinement centers at any time during their incarceration. Id. at 847. The Court, therefore, concludes, the BOP has not acted contrary to law by applying th e Program Statement and considering Petitioner for release to an RRC. See Miller v. W h ite h e a d , 527 F.3d 752, 757-58 (8th Cir. 2008). Further, the Court sees no evidence th a t the BOP acted other than in good faith when, in its discretion, it recommended P e titio n e r for five to six months of RRC placement. III. C o n c lu s io n A c c o rd in g ly, Petitioner's Petition for Writ of Habeas Corpus (#1) is DISMISSED W IT H PREJUDICE and Petitioner's Motion for Relief (#21) is DENIED as moot. IT IS SO ORDERED, this 17th day of September, 2009.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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