Dusch v. Rivera
Filing
11
ORDER approving and adopting in their entirety as this Court's findings in all respects 6 Proposed Findings and Recommendations; dismissing Mr. Dusch's 1 habeas corpus petition; and denying the requested relief. A certificate of appealability will not be issued. Signed by Judge Kristine G. Baker on 04/27/2016. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
TY W. DUSCH,
Reg. #10530-025
v.
PETITIONER
Case No. 2:15-cv-00079-KGB
C.V. RIVERA, Warden, Forrest City Low,
Federal Correctional Complex
RESPONDENT
ORDER
Before the Court are the Proposed Findings and Recommendations (“Recommendations”)
submitted by United States Magistrate Judge Joe J. Volpe (Dkt. No. 6). Petitioner Ty W. Dusch filed
objections to the Recommendations (Dkt. No. 9). After carefully considering the objections and
making a de novo review of the record in this case, the Court concludes that the Recommendations
should be, and hereby are, approved and adopted in their entirety as this Court’s findings in all
respects.
The Court writes separately to address Mr. Dusch’s objections. Mr. Dusch filed a petition
for habeas corpus asking the Court to order the Bureau of Prisons (“BOP”) to remove the Public
Safety Factor (“PSF”) imposed on him. The BOP responded that Mr. Dusch does not have any
constitutional right to a particular designation or custody classification. The Recommendations
agreed with the BOP’s argument. In his objections, Mr. Dusch concedes that he has no protected
liberty interest in an assignment to a particular type of penal facility (Dkt. No. 9, ¶ 2). He maintains,
however, that he has a “protected liberty interest in the even-handed application of rational policies
that are designed to protect the public” (Id.). Mr. Dusch contends that “[b]ecause the case is so old,
and because there has been no repetitive conduct on the part of the Petitioner, and because the
Petitioner is not required to register as a sex offender, it is unreasonable to regard Petitioner as a
danger to society, yet the outdated policy of the Bureau of Prisons, which continues to treat the
Petitioner as a sex offender, is being unreasonably applied to Petitioner’s case and burdens the
taxpaying public with the costs of Petitioner’s confinement in a low security level facility, when he
merits confinement in a minimum security facility where the costs of confinement are significantly
lower” (Id. ¶ 4). In addition, Mr. Dusch contends that if he were transferred to a minimum security
facility he might “qualify to receive a year off his sentence if he were to successfully complete the
Residential Drug Abuse Program” (Id. ¶ 5).
Mr. Dusch and the Recommendations accurately state the law regarding BOP classification
inasmuch as both agree that there is no protected liberty interest in a particular classification within
the BOP or in being confined in a particular institution. See, e.g., Montanye v. Haymes, 427 U.S.
236, 242 (1976) (“As long as the conditions or degree of confinement to which the prisoner is
subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution,
the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to
judicial oversight.”); see also Bulger v. U.S. Bureau of Prisons, 65 F.3d 48, 49 (5th Cir. 1995)
(“Prisoner classification and eligibility for rehabilitation programs in federal prisons are not directly
subject to due process protections.”) (citing Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976));
Crawford v. Cashion, 2010 Ark. 124, *7 (“Arkansas law commits prisoner classification to the
discretion of prison officials and does not protect an inmate’s right to any particular classification
or raise due-process concerns.”).
Despite this case law, Mr. Dusch maintains that he has a due process interest in the way in
which the BOP determines his PSF. Other courts have disagreed, finding that even prisoner
classifications based on incorrect or erroneous information do not violate due process because an
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inmate does not have a protected liberty interest in any particular classification. Jennings v. BOP,
354 F. App’x 60, 61 (5th Cir. 2009) (holding that a claim must be dismissed as frivolous when it
alleges that a prisoner’s classification was based on an erroneous determination of the prisoner’s
history of or propensity for violence); Harbin-Bey v. Rutter, 420 F.3d 571, 576 (6th Cir. 2005)
(recognizing that a prisoner does not have a constitutional right to be placed in a specific security
classification); Biedrzycki v. U.S. Prob. Dep’t, No. 6:09-CV-364-GFVT, 2010 WL 291826, at 2–3
(E.D. Ky. Jan. 21, 2010) (“To the extent that the Petitioner’s allegations amount to a claim that his
due process rights have been violated by the use of the erroneous PSI to arrive at his custody level
and prison assignment, the Supreme Court has held that prisoners do not have a liberty interest under
the Constitution in ‘prisoner classifications and eligibility for rehabilitative programs in the federal
system.’” (quoting Moody, 429 U.S. at 88 n. 9)). Moreover, the Supreme Court has directed that a
liberty interest in the conditions of a prisoner’s confinement is implicated only where the prison’s
action creates “atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life . . . or creates a major disruption in his environment.” Sandin v. Connor, 515 U.S. 472,
484–86 (1995). The Supreme Court itself has found only one circumstance which meets its standard
of being an “atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life” so as to implicate the due process clause and that is a prisoner’s transfer to a “supermax”
facility, where “almost all human contact is prohibited, even to the point that conversation is not
permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1
hour per day, but only in a small indoor room.” Wilkinson v. Austin, 545 U.S. 209, 223–24 (2005).
Mr. Dusch has not alleged such atypical conditions are present as a result of the PSF assigned to him
by the BOP.
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Therefore, this Court adopts the Recommendations; Mr. Dusch’s habeas corpus petition is
dismissed and the requested relief is denied (Dkt. Nos. 1, 6). A certificate of appealability will not
be issued.
It is so ordered this 27th day of April, 2016.
________________________
Kristine G. Baker
United States District Judge
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