Wong v. Ponce

Filing 12

ORDER signed by Magistrate Judge Allison Claire on 03/01/17 granting 10 Motion to expedite to the extent this order addresses the pending petition for writ of habeas corpus. The petition for writ of habeas corpus 1 is denied. CASE CLOSED.. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE KEALOHA WONG,

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Petitioner,

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No. 2:16-cv-00501 AC P

v.

ORDER

FELICIA PONCE,

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Respondent.

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Petitioner, a federal prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Petitioner has also filed several supplements to

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his petition and requests to expedite. ECF Nos. 5, 9, 10. The parties have consented to the

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jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c)

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and Local Rule 305(a). ECF Nos. 3, 7.

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I.

Petition
Petitioner was convicted of possession with the intent to distribute methamphetamine in

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violation of 21 U.S.C. § 841. ECF No. 1 at 2. Petitioner contends that he is entitled to relief

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under 28 U.S.C. § 2241 because (1) the Federal Bureau of Prisons (BOP) violated 42 U.S.C. §

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17541(a)(1)(G), the Second Chance Act (SCA), by failing to provide incentives to inmates

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participating in skills development programs; (2) the BOP violated petitioner’s due process rights

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by failing to provide him an evaluation and team meeting for placement in a Residential Reentry
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Center (RRC); (3) the BOP improperly denied him RRC placement; and (4) the BOP retaliated

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against petitioner, thus violating his First Amendment rights, by ignoring his requests for case

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management assistance for reentry planning. ECF No. 1 at 3; ECF No. 5 at 2-6.

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II.

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Discussion
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts

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(Habeas Rules) requires the court to summarily dismiss a habeas petition “[i]f it plainly appears

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from the petition and any attached exhibits that the petitioner is not entitled to relief in the district

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court.”1

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A. Due Process Violations

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1. Factual Background

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When petitioner was approximately twenty months from his projected release date, he

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submitted a request to his case manager for a twelve-month RRC placement. ECF No. 9 at 7.

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Petitioner was informed that he would be evaluated when he was seventeen to nineteen months

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out from his projected release date. Id. One month later, petitioner submitted another request to

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his case manager asking for a follow up on his request for a twelve-month RRC placement. Id. at

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5. When he did not receive a response, petitioner submitted a request for informal resolution and

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was advised to see the previous response from his case manager (noting that he would be

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evaluated seventeen to nineteen months from his projected release date). Id. at 7. Petitioner then

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submitted a request for an administrative remedy, again requesting a twelve-month RRC

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placement and stating that he was nineteen months from his projected release date. Id. at 8. The

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request was rejected, advising petitioner that he would be evaluated soon. Id. Petitioner appealed

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the rejection of his administrative remedy request. Id. at 9. The appeal was rejected and

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petitioner was advised to follow the directions provided on his prior rejection. Id. at 10.

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Petitioner appealed to the Central Office and that appeal was also rejected. Id. at 11.

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Approximately five months after petitioner submitted his first request for a twelve-month
RRC placement, he received a notification that he had been approved for up to six months at an
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The Rules Governing Section 2254 Cases are appropriately applied to proceedings undertaken
pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b).
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RRC. Id. at 5. After receiving that notification, he filed a request for informal resolution seeking

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reconsideration for a twelve-month placement (id. at 12) and a request for administrative remedy,

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again requesting reconsideration (id. at 13). Both requests were denied and petitioner was

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informed that his unit team had conducted an individual assessment and determined that a

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placement of 151-180 days was sufficient for his RRC placement. Id. at 12-13. Petitioner then

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filed a regional administrative remedy appeal, alleging that he did not have a program review in

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December in accordance with 28 CFR § 524.11, that he did not receive case management

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services, and that he did not receive incentives for participating in skills development programs.

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ECF No. 9 at 14. Petitioner received a response stating that his concerns had already been

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addressed in response to his previous request. Id.

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2. Sections 3621 and 3624

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There are two statutory provisions governing the BOP’s authority to transfer inmates in its

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custody to RRCs: 18 U.S.C. §§ 3621(b) and 3624(c). Section 3621 states “[t]he Bureau of

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prisons shall designate the place of the prisoner’s imprisonment.” 18 U.S.C. § 3621(b). Section

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3621 further lays out five factors that the BOP should consider when determining the appropriate

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placement for an inmate, including the nature and circumstance of the offense and the history and

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characteristics of the prisoner. 18 U.S.C. § 3621(b)(1)-(5). The BOP has the authority to place

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inmates in an RRC during the final months of their term of imprisonment. 18 U.S.C.

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§ 3624(c)(1). Section 3624(c), amended in 2007 by the Second Chance Act, states that the BOP

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should ensure, “to the extent practicable,” that a prisoner “spends a portion of the final months of

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[his] term (not to exceed 12 months), under conditions that will afford the prisoner a reasonable

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opportunity to adjust to and prepare for the reentry of that prisoner into the community” and that

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the conditions “may include a community correctional facility.” Id. Section 3624(c) also

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establishes that the Director of the BOP shall issue regulations to ensure placements in RRCs are

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“conducted in a manner consistent with section 3621(b) of this title.”2 18 U.S.C. § 3624(c)(6)(A).

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The BOP regulations for pre-release community confinement are codified at 28 C.F.R.
§§570.20-.22.
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3. Right to an RRC Placement
To the extent that petitioner claims a constitutional right to be housed in a particular place,

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such as an RRC, that claim is without merit. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)

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(noting that “there is no legitimate statutory or constitutional entitlement [to prisoner

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classification or eligibility for rehabilitative programs] sufficient to invoke due process”); see also

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Meachum v. Fano, 427 U.S. 215, 224 (1976) (no constitutional right to be housed at a particular

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prison). The courts have consistently held that the Second Chance Act does not guarantee a

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placement for an inmate, but “only directs the Bureau of Prisons to consider placing an inmate in

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a RRC for up to the final twelve months of his or her sentence.” Lovett v. Hogsten, No. 09-5605,

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2009 WL 5851205, at *2, 2009 U.S. Dist. LEXIS 28957, at *4 (6th Cir. Dec. 29, 2009); Smith v.

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Sanders, No. CV 09-3083-GHK E, 2009 WL 2900317, at *6 (report and recommendation and

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order adopting in full), 2009 U.S. Dist. LEXIS 82265, at *18 (report and recommendation, order

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adopting in full at 2009 U.S. Dist. LEXIS 82261) (C.D. Cal. Sept. 3, 2009) (holding that the BOP

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retains discretionary authority over the duration of RRC placement); Stockton v. Adler, No. 1:08-

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CV-01594 OWW GSA HC, 2008 WL 5136133, at *3, 2008 U.S. Dist. LEXIS 101986, at *8

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(E.D. Cal. Dec. 8, 2008) (noting that there is no statutory or constitutional right to an immediate

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RRC assessment or transfer); Creager v. Chapman, No. 4:09-CV-713-A, 2010 WL 1062610, at

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*3, 2010 U.S. Dist. LEXIS 26843, at *7 (N.D. Tex. Mar. 22, 2010) (finding that “nothing in the

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Second Chance Act or § 3621(b) entitles [petitioner] or any other prisoner to any guaranteed

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placement in a residential reentry center”). Petitioner’s disagreement with the BOP’s

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recommendation not to transfer him to an RRC until his final six months, rather than for the

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twelve-month period he requested, does not establish a constitutional violation. Since petitioner

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has no constitutional right to placement in an RRC, there is no due process violation.

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4. Program Statement Violations
i. Right to Incentives
Petitioner asserts that the BOP failed to comply with the Second Chance Act, 42 U.S.C. §

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17541, because it failed to provide incentives for inmates participating in skill development

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programs (ECF No. 1 at 3) and that such “[i]ncentives could include the maximum allowable
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period in a community correction center” (ECF No. 5 at 2). He further alleges that the BOP

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failed to follow their own program statement, P5330.11(2.4.8.)(b), which states that the Warden is

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strongly encouraged to approve placement in an RRC for the maximum period of time for

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inmates who successfully complete the non-residential drug abuse program. Id. at 3. He states

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that he actively participated in all programs offered at the prison and the BOP must provide

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incentives for such participation, such as placement in an RRC for the maximum allowable

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period. Id. at 2.

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“[T]he Second Chance Act does not mandate that the [BOP] designate those prisoners
who participate in skills development programs for the full twelve months of RRC placement as

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an incentive for such participation.” Arnett v. Washington-Adduci, No. CV 11-5898-JAK(E),

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2011 WL 6951848, at *8, 2011 U.S. Dist. LEXIS 151387, at *29 (C.D. Cal. Nov. 15, 2011)

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(citing 42 U.S.C. § 17541(a)(2)(A) and collecting cases); Richardson v. Dir. for Fed. Bureau of

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Prisons, 434 F. App’x 121, 122 (3d Cir. 2011) (holding that the Second Chance Act does not

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require that any particular incentives be given for prisoner participation in skills development

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programs). While the Second Chance act requires the BOP to establish incentives, it does not

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require that any particular incentive be established. See 42 U.S.C. § 17541(a)(1)(G) and (2). The

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BOP’s program statement also does not entitle petitioner to maximum RRC placement. Petitioner

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alleges that under the program statement the Warden is “strongly encouraged,” not mandated, to

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approve inmates such as himself for twelve-month RRC placements. ECF No. 5 at 3.

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Because maximum RCC placement as an incentive is discretionary under the Second

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Chance Act, allegations that petitioner was improperly denied such placement as an incentive or

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that the BOP violated the Second Chance Act by not requiring such an incentive, do not state a

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claim upon which relief may be granted. Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 827 (9th Cir.

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2002), amended, 337 F.3d 1023 (9th Cir. 2003) (noting that habeas relief is not available to

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challenge purely discretionary decisions). Moreover, even if the program statement mandated

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twelve-month placement in an RRC under specified circumstances, failure to comply would not

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warrant habeas relief. Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (holding that “[a]

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habeas claim cannot be sustained based solely upon the BOP’s purported violation of its own
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program statement because noncompliance with a BOP program statement is not a violation of

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federal law”).

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ii. Right to a Timely Individual Assessment for RRC Placement
Petitioner also alleges that his due process rights were violated because he was not

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provided an evaluation for RRC placement seventeen to nineteen months prior to his projected

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release date. ECF No. 1 at 3; ECF No. 5 at 3. He states that a memorandum issued by the BOP

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on April 14, 2008, “provides that the BOP must review inmates for pre-release placements 17 to

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19 months before their projected release dates.” ECF No. 5 at 3.

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Petitioner does not allege that he was not provided an individual assessment. Instead, he

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asserts that the assessment he received was not timely and that it did not comply with procedural

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requirements. ECF No. 1 at 3; ECF No. 5 at 3-4. Specifically, petitioner alleges that an

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individual RRC assessment did not take place on December 15, 2015, which would have been

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approximately seventeen months before his projected release date, because he was not evaluated

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in person and did not speak with BOP staff regarding the assessment. ECF No. 5 at 5; ECF No. 9

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at 3. He asserts that the evaluation did not take place until two months later on February 10,

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2016. ECF No. 5 at 4.

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Even if the BOP failed to conduct the assessment within the timeframe specified in its

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program statement, this would not violate due process. Like the program statement above, the

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BOP memorandum is not a federal law and therefore petitioner has no constitutional right to an

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individual RRC assessment seventeen to nineteen months prior to his projected release date.

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Moreover, if the court accepts as true that the assessment did not take place until February 10,

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2016, it was still conducted approximately fifteen months before petitioner’s projected release

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date. ECF No. 9 at 21. This means it was conducted sufficiently in advance that petitioner was

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capable of being considered for a twelve-month placement.

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Since petitioner was provided with an individual assessment in sufficient time to allow for

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a twelve-month placement had it been deemed appropriate and BOP memoranda are not federal

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law, petitioner’s claim that the BOP violated his due process rights by failing to provide a timely

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RRC assessment must be denied.
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iii. Right to a Team Meeting

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Petitioner claims that his program reviews were not properly conducted because he was

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not provided with forty-eight hours’ notice before reviews, reviews were conducted only by the

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case manager, and he did not have the opportunity to discuss decisions such as RRC placement,

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all in violation of 28 C.F.R. § 524.11. ECF No. 5 at 5. The failure to comply with these

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procedural requirements appears to be the basis of petitioner’s claim that an individual assessment

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did not take place on December 15, 2015. Id. at 6.

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Petitioner alleges that the failure to convene a classification team meeting to discuss an

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RRC placement as part of his program review violated his due process rights. ECF No. 1 at 3;

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ECF No. 5 at 3, 5. Petitioner notes that after his request for administrative remedy seeking a

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twelve-month RRC placement was rejected, he filed a request to the Camp Administrator

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requesting a team meeting to discuss an RRC placement, but the meeting was not provided. ECF

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No. 5 at 3. Notably, the BOP classification and program review is distinguishable from

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individual assessments. According to 28 C.F.R. § 524.11, inmates shall be provided with a

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program review at least once every 180 calendar days and the inmates must be notified at least

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forty-eight hours in advance. 28 C.F.R. § 524.11(a)(2), (b)(1). The regulation also provides that

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the inmate is expected to attend all program reviews. 28 C.F.R. § 524.11(b)(3). However, these

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regulations only apply to program reviews and not to individual assessments for RRC placement,

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which are controlled by 18 U.S.C. § 3621(b). Furthermore, the memorandum that petitioner

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submits from the Assistant Director of the Correctional Programs Division regarding RRC

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placements states only that individual assessments occur as part of the inmate program review

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process. ECF No. 9 at 15. Nothing in the memorandum or the regulation requires that the inmate

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be present at the individual assessment, nor do they require that the individual assessment occur

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during the program review meeting itself. The criteria that must be considered for the individual

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assessment also do not require petitioner’s presence or input. See 18 U.S.C. § 3621(b). Thus,

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even if petitioner’s program reviews were not properly conducted, this failure would not support

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petitioner’s challenge to the RRC assessment because the program review did not determine

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whether petitioner was eligible for an RRC placement. Instead, the RRC placement
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determination was made during the individual assessment, which petitioner was not statutorily or

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constitutionally required or entitled to attend.

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Nothing in the BOP program statements excerpts and memorandum provided by petitioner

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or the Code of Federal Regulations requires the BOP to provide inmates with a team meeting

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upon request or to conduct in-person individual assessments. Instead, the regulations establish

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procedures for conducting program reviews, while the BOP program statements and

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memorandum provide guidance regarding conducting individual RRC assessments. The failure

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to follow regulations that govern a separate process does not violate petitioner’s rights as to an

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individual assessment under 18 U.S.C. § 3621(b). Moreover, even if the BOP program

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statements required an in-person individual assessment, they are not federal law and therefore

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failure to follow them does not violate federal law. Accordingly, the alleged failure to provide a

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team meeting or in-person individual assessment did not violate petitioner’s due process rights.

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B. Judicial Review of BOP Decisions

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Petitioner’s claim that he was improperly denied a twelve-month RRC placement also

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fails. The courts have uniformly found that habeas review of RRC placement determinations by

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the BOP is not permitted. Reeb, 636 F.3d at 1227-28 (finding that permitting prisoners to

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challenge the BOP’s discretionary determinations would be inconsistent with 18 U.S.C. § 3625);

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Geiger v. Adler, No. 1:10-cv-00715-AWI-JLT HC, 2011 WL 5417093, at *6, 2011 U.S. Dist.

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LEXIS 129453, at *18 (E.D. Cal. Nov. 8, 2011) (collecting cases) (noting that the BOP has the

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sole authority to make RRC placement determinations, which are not reviewable in the district

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court pursuant to § 706(2)(A) of the Administrative Procedures Act); English v. Ives, No. 2:11-

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cv-0010 EFB P, 2012 WL 4038495, at *6, 2012 U.S. Dist. LEXIS 130293, at *16-17 (E.D. Cal.

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Sept. 12, 2012) (same); Khachatryan v. Milusnic, No. CV 13-2892-JSL (MAN), 2013 WL

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2251724, at *2, 2013 U.S. Dist. LEXIS 72727, at *4 (C.D. Cal. May 22, 2013) (finding that the

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court “may not second guess the BOP’s individualized determination”); Arred v. Phillips, 2008

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WL 4219074, at *3 & n.2, (N.D.W.Va. Sept. 15, 2008) (stating that the court lacks authority to

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order the BOP to afford a longer placement in community corrections once a decision is made).

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This court does not have the ability to review the BOP’s discretionary recommendation to place
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petitioner in an RRC for a six-month period, rather than the maximum twelve-month period

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petitioner requested.

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C. Retaliation Claim

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“Within the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

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Petitioner alleges that his case manager retaliated against him by ignoring his requests for

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assistance with reentry planning and by subsequently damaging his property because petitioner

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filed a grievance against him. ECF No. 1 at 3; ECF No. 5 at 2. Additionally, petitioner alleges

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that other BOP personnel retaliated against him by ignoring his requests for relief regarding case

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management services, ignoring his requests for a transfer to an RRC placement, and failing to

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communicate with him regarding his RRC assessment. Id. He appears to claim that the failure to

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respond to his requests for assistance contributed to the denial of a maximum RRC placement.

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The documentation petitioner submits in support of his claim indicates that petitioner submitted a

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request for informal resolution stating that he was dissatisfied with his team meeting because he

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was not provided the opportunity to communicate directly with staff who make program review

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decisions. ECF No. 9 at 19. Petitioner received a response indicating that his claims were

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unfounded, noting that petitioner voluntarily signed for his program review. Id. at 19. Petitioner

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continued to file grievances and appeals at multiple levels and he received responses to all of

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them. Id. at 20, 21, 27-32.

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Petitioner fails to state a cognizable retaliation claim because his allegations do not

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support an inference that the case manager retaliated against him or that the BOP’s motivation in

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denying his requests for administrative remedies was retaliatory. Petitioner’s conclusory

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allegations of retaliation are not sufficient. Even if his case manager was ignoring his requests for

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services, simply ignoring his requests is an insufficient basis for a First Amendment retaliation

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claim because petitioner has not identified any protected conduct that caused the case manager’s
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allegedly retaliatory conduct. Petitioner’s other retaliation claims against the case manager allege

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that petitioner’s property was damaged in retaliation for filing a grievance. Assuming that the

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case manager’s search of petitioner’s cell and the resulting property damage were motivated by a

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desire to retaliate against petitioner for filing a grievance, these claims are not properly before the

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court in habeas.

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As for the allegations regarding the individuals responding to his grievances, there is also

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no evidence to support an inference that the rejections of petitioner’s grievances and appeals by

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other BOP officials were retaliatory. Contrary to petitioner’s allegations, his requests for

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administrative remedies were not ignored and he was provided with information for addressing

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his concerns, such as filing a tort claim regarding his damaged property (ECF No. 9 at 30) and

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submitting a request to his unit team for an RRC evaluation (ECF No. 9 at 32). Petitioner has

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failed to show that the retaliatory motive was a “substantial” or “motivating” factor behind the

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BOP’s conduct. Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Soranno’s

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Gasco, Inc v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)).

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Even if petitioner had alleged sufficient facts to support an inference of retaliation, he has

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not demonstrated that either the case manager or the BOP’s conduct was enough to chill his First

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Amendment rights. Not every allegedly adverse action is sufficient to support a claim for

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retaliation. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (harm must be “more than

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minimal” (quoting Rhodes, 408 F.3d at 568, n.11)); see also Bell v. Johnson, 308 F.3d 594, 603

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(6th Cir. 2002) (“[S]ome adverse actions are so de minimis that they do not give rise to

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constitutionally cognizable injuries.” (citing Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir.

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1999))). It is clear from the documentation petitioner provided and petitioner’s filing of the

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petition in the instant action that the case manager’s alleged disregard of his requests and the

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BOP’s denials of his grievances has not prevented him from further pursuing First Amendment

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activities. In fact, petitioner continued to use the administrative appeal process to voice his

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grievances regarding his case manager’s inaction, the BOP’s alleged uncooperativeness, and his

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desire for a twelve-month RRC placement. Not only was petitioner not deterred, but an inmate of

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ordinary firmness would not be deterred by the denial of grievances from continuing to engage in
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protected conduct. See Burgos v. Canino, 641 F. Supp. 2d 443, 455 (E.D. Pa. 2009) (“The mere

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denial of grievances does not rise to the level of adverse action sufficient to deter a person of

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ordinary firmness from exercising his constitutional rights.”); Dicey v. Hanks, No. 2:14-cv-2018

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JAM AC P, 2015 WL 4879627, at *5, 2015 U.S. Dist. LEXIS 107487, at *11-12 (Aug. 14, 2015,

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adopted in full Oct. 15, 20153) (collecting cases) (“[D]enial of a grievance neither constitutes an

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adverse action that is more than de minimis nor is it sufficient to deter a prisoner of “ordinary

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firmness” from further First Amendment activities.).

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In sum, petitioner’s retaliation claim fails because (1) his allegations do not support an
inference of retaliatory intent, and (2) even if there was such intent, the denial of a grievance is
insufficient to constitute an adverse action as a basis for a retaliation claim.

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III.

Summary

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The BOP has the sole authority to decide the appropriate placement for inmates pursuant

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to 18 U.S.C. § 3621(b). The court cannot review the BOP’s decision that petitioner should only

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spend six months in an RRC, because judicial review of this decision is not allowed by 18 U.S.C.

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§ 3625. Additionally, the BOP is not required to provide maximum RRC placement to prisoners

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who participate in skills development programs, and the failure to follow BOP program

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statements and memorandum does not establish a violation of federal law. Since petitioner has no

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constitutional or statutory right to a particular placement, a timely individual assessment, a team

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meeting upon request, or any particular incentives, the due process claims must be denied.

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With regard to the retaliation claim, petitioner has failed to allege facts that show that

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either the case manager’s actions or the BOP’s actions were based on retaliatory motivation.

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Moreover, petitioner was not prevented from continuing to express his grievances because the

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denial of grievances would not stop an inmate of ordinary firmness. Since petitioner has failed to

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state a cognizable claim for retaliation, this claim must also be denied.

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2015 WL 6163444, 2015 U.S. Dist. LEXIS 140655.
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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to expedite (ECF No. 10) is granted to the extent this order

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addresses the pending petition for writ of habeas corpus.
2. The petition for writ of habeas corpus (ECF No. 1) is denied.
DATED: March 1, 2017

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